R. v. Roy, 2011 ONCJ 152

Information No. 090140 Citation: R. v. Roy , 2011 ONCJ 152 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. JACQUES ROY ********** R E A S O N S F O R J U D G E M E N T BEFORE THE HONOURABLE JUSTICE R.E.W. CARR, on March 1, 2011, at TIMMINS, Ontario **********

APPEARANCES : G. Verbeek Counsel for the Crown B. Sloan Counsel for Jacques Roy CARR, J. (Orally): Jacques Roy stands charged with having committed the offence of operating a motor vehicle on January 17 th , 2009, in the City of Timmins, while his ability to do so was impaired by alcohol, and with operating a motor vehicle with his blood-alcohol concentration in excess of the 80 milligrams of alcohol in 100 millilitres of blood limit. Mr. Roy pleaded not guilty and the matter came on for trial before me on November 24 th , 2010.

Constables Ryan Farrell and Dani Durepos were together in a police cruiser facing southbound on College Street at the intersection of College and Westmount Boulevard at approximately 9:15 p.m. on January 17 th , 2009. Constable Farrell was driving. A car operated by the defendant, Jacques Roy, passed through the intersection on Westmount in an easterly direction in front of the officers who were then in the process of stopping. The officers made two observations. The defendant appeared to be speeding and he had a small dog on his lap.

The cruiser turned onto Westmount in pursuit, and subsequently engaged its police roof lights, and stopped the defendant approximately 10 seconds after the roof lights were activated and about 20 to 25 seconds from when the officers began their pursuit at the intersection of Westmount and College. Officer Farrell had a little less than three years experience with Timmins Police Service and Officer Durepos had approximately four and a half years experience at the time of the arrest.

The only indication of abnormal driving by the defendant, besides the dog on the lap and the apparent speeding, was what Constable Farrell described as a “slight swerve” into the westbound lane. This was not noticed by Constable Durepos, nor was it recorded in Officer Farrell’s notebook and it did not trigger any thought in Farrell’s mind that he might be following an impaired driver.

In fact, Officer Farrell’s first thought that he may be dealing with an impaired driver occurred as he was “speaking to the defendant at the side of his vehicle.” As he did so, Officer Farrell could smell the odour of alcohol coming from the vehicle. He asked the defendant if he had been drinking, to which the defendant replied, “Quite a bit,” and when Farrell asked him, “How much is ‘quite a bit’?” the defendant replied, “Too much. That is why I am trying to go home.”

Officer Farrell asked Mr. Roy to exit his vehicle and to walk to the rear of the cruiser which was behind Roy’s vehicle. At the side of the car, Farrell detected an odour of alcohol coming from the breath of the defendant, and the defendant was arrested by Officer Farrell for impaired driving of a motor vehicle and over 80, then and there. Officer Farrell noted that the defendant’s speech was slurred throughout their conversation. Officer Farrell was asked by Crown counsel, Mr.

Verbeek, if he was aware, at the time, of the fact that the defendant had any problem speaking, and he said, “At the time, no, I wasn’t.” In cross-examination, however, Officer Farrell conceded that he had a clear view of the defendant’s face as he spoke to him when the defendant was still behind the wheel and that he observed that the left side of the defendant’s face was disfigured. The following questions by Mr. Sloan and answers by Officer Farrell should be noted. “Q.

Did it not come to your mind that, you know, you see his tongue sticking out actually at one – in one of the photos here, did it not come to your mind to maybe question in your own mind whether or not the facial disfigurement could be causing what you say to be slurred speech and then whether or not that’s his normal manner of speech? A. I did. Q. It did come to your mind. A. Oh, yeah. Q. So it came to your mind before you arrested him. A. Yes. Q. Did it not come to your mind then, in view of the significant reliance you have in your notes, that perhaps you should ask Mr.

Durepos, a far more experienced police officer with DUIs about, ‘Well, maybe this has an innocent explanation here, this slurred speech’? Didn’t come to your mind that you should talk about that with Mr. Durepos? A. No. Q. Well, it came to your mind though. It came to your mind. A. Yeah.” According to Farrell, the defendant walked to the cruiser without any sign of unsteadiness. His eyes were not red or glassy. His face was not flushed and he did not fumble as he retrieved his documentation from his wallet.

The defendant was arrested by Farrell at 9:17 p.m., some two minutes after the vehicle was seen by the two police officers at the intersection of Westmount and College Street. His

section 10(

b) Charter rights to counsel were read by Farrell at 9:20 p.m. along with the section 254(3) demand for a sample of breath for testing purposes. The officers did not have a roadside breath testing device with them in their cruiser and they made no inquiry to see if one was at the police station or nearby. Accordingly, a section 254(2) demand was not made of the defendant for a roadside testing of his breath. The parties arrived at the Timmins police station at 9:30 p.m. The defendant was delivered to qualified breath technician Carter at 10:09 p.m.

The first sample was completed at 10:31 p.m. and the second sample by 11:06 p.m. Mr. Sloan, for the defendant, contends that the seizure of the defendant’s breath pursuant to the section 254(3) demand was an unreasonable search and seizure because Officer Farrell did not have the reasonable and probable grounds to make the section 254(3) demand in the first place.

The Crown has the burden of establishing that the defendant’s

section 8 Charter rights were not violated. That is to say thatOfficer Farrell did, in fact, have the reasonable and probable grounds to demand that the sample be provided and that he believed this tobe the case. This is so because the seizure of the defendant’s breath was made without a warrant and the burden is therefore placed on theCrown to prove the validity of the seizure – R. v Haas, Ontario Court of Appeal (ON CA), [2005] 200 CCC (3d) 81.

The apparent speeding of the defendant, the small dog on the defendant’s lap, the slight swerve on the road, the smell of alcoholon the defendant’s breath and the defendant’s slurred admission that he had “too much” to drink were the grounds upon which OfficerFarrell founded his section 254(3) demand. Section 254(3) of the Criminal Code reads as follows: “If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding threehours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made assoon as practicable, require the person (

a) to provide, as soon as practicable (1) samples of breath that, in a qualified technician’s opinion,will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, and (

b) if necessary, toaccompany the peace officer for that purpose.” The condition precedent for the section 254(3) breath sample demand is that the officer who makes the demand has a subjectivebelief, that is, a personal and honest belief that the offence has probably been committed, and if so, the court must agree that the beliefwas objectively reasonable in the circumstances. The officer’s subjective belief may be based on evidence that includes reliable hearsay.

Before 9:17 p.m. when the defendant was arrested for impaired driving, Officer Farrell asked his colleague, Officer Durepos, thefollowing question: “Do you think that we have enough for the arrest?” Officer Durepos, with approximately two more years experience as a police officer than Officer Farrell, replied with one word,“Absolutely,” and the arrest was then made by Officer Farrell. Clearly, the test for the arrest is the same as the test for the section 254(3) demand; that is, reasonable and probable grounds. Officer Durepos confirmed that the decision to arrest was Farrell’s decision alone. “It’s his choice.

It’s his arrest,” said Durepos. Officer Farrell agreed with defence counsel’s suggestion that at that point he “was unsure and for that reason asked” OfficerDurepos. He conceded that he was unsure because of the disfigurement - that is, that the disfigurement could have been responsible for theslurred speech. He was also unsure because of the lack of unsteadiness in the defendant’s gait, no fumbling of the wallet, no red orglossy eyes and no flushed face.

It is important to note that Officer Durepos had a different opinion because he made different observations and, therefore, haddifferent information than did Officer Farrell. Although Durepos did not see the defendant’s motor vehicle swerve on Westmount Boulevard, he determined before the stop thatthe driver of the defendant’s vehicle, i.e., the defendant, was “probably drunk” due to the fact of the defendant’s slow driving. He sawthe defendant stumble when he was being escorted from his car to the cruiser by Officer Farrell.

Interestingly, and as mentioned, OfficerFarrell, who was doing the escorting did not see, for some reason, the stumble and Officer Durepos was at this time on the other side ofthe defendant’s motor vehicle when he made this observation.

Perhaps most importantly, however, Officer Durepos had had dealings with the defendant previously.

Officer Durepos knew of the defendant’s speech difficulties -”impairment” he called it, but said that the defendant’s speech was “substantially different than what I remembered it being”, that is, itwas “more slurred.” But later on, Officer Durepos said this, “I could still make him out, definitely, but it definitely was a little bit harderto understand.” Of course, as mentioned, the arresting officer – Farrell, who made the section 254(3) demand, can factor hearsay into the equationwhen subjectively assessing the evidence in light of a possible section 254(3) demand, but none of this extra information that OfficerDurepos possessed was communicated to Farrell – only the opinion of Durepos to the effect that the reasonable and probable grounds tomake the arrest were there, was communicated and nothing more.

The questions for consideration are as follows. Has the Crown established on a balance of probabilities that Officer Farrell whomade the section 254(3) demand had the subjective/personal belief that the defendant had committed within three hours preceding, theoffence of impaired driving or over 80? And if so, is that belief objectively defensible? The answer to the first question is no. The Crown has not discharged this burden. In the word of Officer Farrell, he was “unsure” of this before he asked Officer Durepos for his opinion and Officer Durepos addedno new information or grounds.

Clearly, his one-word answer to Farrell – “absolutely” is not sufficient in and of itself to change OfficerFarrell’s opinion because no new information or evidence was advanced, nor were the grounds known to Officer Farrell made any morereasonable by virtue of Officer Durepos’ input and report. Just as the decision to affect the arrest was not a joint decision, neither was the decision to demand a sample of the defendant’sbreath pursuant to section 254(3). It also was a decision of Constable Farrell, alone. This is clear from the evidence.

Officer Farrellsimply substituted Officer Durepos’ opinion for his own and this he cannot do, that is, delegate his opinion. The opinion/belief must behis own. He, himself, must possess the reasonable belief.

The objective assessment by the court of the belief of the officer who makes the section 254(3) demand must be an assessment ofonly those grounds which were in the mind of the person who made the section 254(3) demand, but in this case, such an assessment isunnecessary and rendered moot by virtue of the fact that the Crown has failed to establish that Officer Farrell had, in fact, the subjectivebelief that he had the reasonable and probable grounds to make the demand in the first place.

Section 24(2) of the Chart of Rights and Freedoms reads as follows: “Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed ordenied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” The Supreme Court of Canada in the decision of R. v Grant 2009 SCC 32 , [2009] S.C.J.

No. 32 at paragraphs 67 and 68said this: “The words of s.24(2) capture its purpose: to maintain the good repute of the administration of justice...The phrase ‘bring theadministration of justice into disrepute’ must be understood in the long-term sense of maintaining the integrity of, and public confidencein the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s.24(2) does not focus onimmediate reaction to the individual case.

Rather, it looks to whether the overall repute of the justice system, viewed in the long term,will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of allrelevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring theadministration of justice into disrepute.” And once again, paragraph 70: “Section 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the

accused, but rather at systemic concerns. The s.24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.” The threshold or Ellis Island port of entry into the entire realm of breath test demand and process is the subjective belief of the peace officer to the effect that he/she had the reasonable and probable grounds to believe that the defendant committed the offence of impaired operation of a motor vehicle or over 80.

That belief can be and often will be tested to confirm that it is reasonable in the circumstances, but before anything else, the belief must be established, failing which the sample will not be admissible for to do so would open the system up to untold abuses in future cases.

Such a belief – the non-belief of the officer in the reasonable and probable grounds to make a section 254(3) demand, is a serious breach and so when one considers/assesses/balances: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach upon the Charter protected interests of the accused, and (3) society’s interest in the adjudication of the case on the merits, the issue here must be resolved in favour of the defendant. That is, the evidence will be excluded for to do otherwise would bring the administration of justice into disrepute. A second issue was advanced by Mr.

Sloan for the defendant. He posited that the breath samples did not meet the “as soon as practicable” requirements in that there was a 37-minute unexplained delay prior to the first test. It is not clear if Mr. Sloan was referring to section 254(3) or

section 258. It matters not. Very little, if any, argumentation was made by either counsel with respect to this issue and I am convinced that no breach occurred here. The breath technician, Constable Carter, was involved in the processing of another impaired driving investigation at police headquarters during this time. And as mentioned, the results, of course, of the breath test will be excluded so there will be a finding of not guilty. I would like to commend counsel for the way the case was presented by the Crown, and by the vigorous defence proffered by Mr.

Sloan, and also to indicate that I think Officer Farrell, who is a young officer, is to be commended for his honesty in this case. I do not want anything I have said to reflect badly on him. It’s not often the case where the subjective belief of the officer making the demand has not been established, and it was in this case made clear on the basis of the straightforward and frank admissions of Officer Farrell, which I appreciate. Thank you. ********** Transcript Ordered: March 1, 2011 Transcript Completed: March 1, 2011 Ordering Party Notified: March 7, 2011