2012 ONCJ 847, 2012 ONCJ 847

R E A S O N S F O R J U D G M E N T PUGSLEY, J. (Orally): The defendant faces charges of impaired driving and driving with excess alcohol, and I should add, Madam Interpreter, if you need me to slow down, please just signal me. The matter proceeded as a blended trial and Charter application. The first Crown witness was Gilbert Ngo. He was driving a car with two friends on Mississauga Road, in Caledon, between 1:30 and 2 a.m. on the date of the alleged offence. As they drove, they saw a car in the ditch with no lights on. They saw a hand wave at them so they did a U-turn and returned to the car.

The witness recalled that the car was in the southbound ditch. The defendant was seated in the driver’s seat of that car. He approached and helped her exit the car. She was disoriented and he thought she might have been in shock. He is trained in first aid and assessed her for injuries. He observed that her speech was slightly slurred and that she needed help to stand and walk. He noted an odour of alcohol. She had a cigarette and then the police arrived in roughly 10 or 15 minutes after they called 911. When the police arrived, he told the officer what had happened and gave a formal statement a week later.

In cross-examination, the witness recalled that the defendant’s car was off and the keys were out. The car was fully off the road in the ditch. He agreed that the defendant might have exited the car before they arrived because the door was not jammed. He supported the defendant at the roadside but she did not stumble or sway. Her speech was slightly slurred and she had a significant accent. Perhaps five cars passed by while they were there. The smell of alcohol remained.

He did not see her stumble or fall when the police were there, nor did he notice that she was unsteady, but he said he was not focused on her then, because the police officer was the primary caregiver. He was speaking to his friends and it was getting quite late. Justin Seto was the second Crown witness. He was a passenger in the vehicle driven by Mr. Ngo. They stopped to try to help. Mr. Ngo went to help the defendant out of her car. He was roughly 12 metres away and outside the car when this happened. Mr. Ngo opened the car door and kind of pulled the defendant out and helped her over to their car.

Her balance was a little off and she could not walk standing fully upright. He smelled alcohol from the defendant. In cross-examination, he noted that the defendant’s balance was off but she did not fall. He did not recall if there was swaying or stumbling. His statement noted that she had a hard time walking. Elysia Nguyen was in the car driven by Mr. Ngo. When he went to help the defendant, she stayed by her car and phoned 911. The defendant’s movements were kind of wobbly. Mr. Ngo helped her stand up. She was not clear whether she saw a wobble or later assumed a wobble.

The defendant smelled of alcohol and was crying, and said she had broken up with her boyfriend. The smell of alcohol came when she spoke to the witness and it was an obvious odour. She estimated that it took the police about an hour to arrive after the 911 call. She noted that the defendant spoke English to her with an accent and they were able to communicate. She was present when the defendant was arrested and handcuffed and then they went home. In cross-examination, the witness was asked if it was possible that the defendant had been out of the car before they arrived.

She said no, that she was obviously impaired and her eyes were kind of drowsy. Mr. Ngo had helped the defendant walk, including having one hand under her shoulder. The defendant did not wobble or sway, or fall down or stumble, and her speech was described as 4 out of 10. She slurred the word “Etobicoke”. Constable David Greer was the investigating officer here. The OPP Communications Centre radioed him at 1:37 a.m. on the date of the alleged offence, reporting a motor vehicle accident on Mississauga Road, south of The Grange Sideroad. It took him 23 minutes to get to the scene.

He testified that he spoke to the three civilian witnesses and they gave him what they had seen and that they had come upon the defendant’s car, just before the 911 call. The defendant was seated in the passenger seat of the witness’ vehicle at the time he arrived. He observed the defendant to have red glossy eyes, slurred speech and a strong odour of alcohol on her breath. She admitted to consuming alcohol. She spoke English with an accent. In spite of the accent her speech was slurred in the opinion of the officer.

He asked her to stand, to make sure she was not injured and she grabbed the car to steady herself. She also stumbled as she walked along the road. She walked about 10 metres to his car and then he decided he had the grounds to conclude that she was impaired

in her ability to drive by the consumption of alcohol. Her gait was very unsteady and she shuffled her feet. At 2:03 a.m., three minutes after arriving on the scene, he arrested the defendant for impaired driving. He stated he had been told by the witnesses that the defendant had been found in the driver’s seat of her car, that the vehicle hood was warm and that the keys were in the ignition. He went to her vehicle and saw that the keys were in the ignition and testified that he touched the car hood and the engine was still warm. He searched her vehicle for alcohol or the odour of alcohol and found nothing.

The key was in the ignition in the auxiliary mode. He had to turn the key back to remove it from the ignition. The interior light and dashboard lights were on, and the vehicle was in park. The ditch was about one metre deep. The car could not have been driven out frontwards because grass and dirt had piled up ahead of the vehicle. It might have been possible to drive it out backwards. The rear of the car was about three metres off the road. He made the breath demand at 2:24 a.m. Between the arrest at 2:03 a.m. and the breath demand, he stated that he was investigating the accident.

He had read the rights to counsel at 2:22 a.m. and the caution at 2:23 a.m. He waited at the scene until the vehicle had been towed away and then left at 2:41 a.m. to go to the Bolton O.P.P. Detachment where the qualified technician was located. They arrived there at 2:57 a.m. Constable Greer lodged the defendant in the cell, completed property paperwork and called duty counsel for the defendant at 3:30. Duty counsel returned the call at 3:36 a.m., and the defendant spoke to duty counsel in private. At about 3:40 a.m., the defendant was finished and was taken to the breath room for tests.

After the tests, he received the defendant back and served the Certificate of Qualified Technician on her at 6 a.m. In cross-examination, the officer noted that he had been a police officer for about six months at the time of this investigation. He was questioned vigorously about details and his note-taking. He testified that the aim was to take as many notes as he needed to recall the event. He agreed that he should have noted all the signs of impairment that he’d seen.

He denied that he was reading his notes when he gave his evidence, but then agreed that he had done so, but also stated that he had a memory of the events. He agreed that the words he used were the same as the words used in his synopsis, but again repeated that he had an independent recollection. He was investigating his second impaired driving charge and stated that this helped him recall certain events. For example, he remembered that the defendant was unsteady when walking into the detachment, although he did not note that. He recalls that she shuffled her feet as he escorted her in.

He had no recollection of her clothes nor of her footwear. He did not ask the defendant when the accident had taken place. The right to counsel at the scene was delivered by him 21 minutes after the arrest. He said this was because he was the only officer at the scene, and described that he had to take care of all the persons there and get the witnesses’ names. He agreed that he could have given the rights to counsel, the breath demand and the caution at the time when the defendant was arrested. The officer stated he searched the immediate area around the vehicle.

He also stated that he felt the hood of the vehicle and it was warm. In his experience, the vehicle hood could be warm for an hour after the last time the engine ran, and in any event, the engine must have been running recently. The officer was asked why it took 33 minutes to call duty counsel once they arrived at the detachment. He stated that he spent all that time lodging the prisoner and bagging her property. The time to take bagging her property depended on the amount of property seized. In re-examination, the witness stated that he became aware of the defendant’s cell phone when he lodged her property.

Counsel stipulated to the fact that the 911 call was at 1:29 a.m. The defendant gave evidence. She stated that she worked until 6 p.m. and drank no alcohol during the day. After work, she went to Guelph to meet her boyfriend at about 7:30 in the evening. They had dinner and she stated she had one glass of wine and one bottle of beer. They argued and she packed up and left at about 11 p.m. She took a bottle of wine from her boyfriend’s.

She started driving home to Etobicoke on Highway 401 but turned off at Mississauga Road. She planned to go to Burnhamthorpe Road but turned the wrong way. She noticed she had left an urban area and was driving in the country. She went to turn around but drove into the ditch while doing so. Her cell phone battery was low. She got out and saw that the side mirror of her car was broken and the radiator had been displaced. She took the wine out of her bag in the trunk and drank wine to calm herself. She then got back in the car and waited for help. She stated she drank half of the 750 millilitre bottle of wine.

She spilled the wine, wetting the seat. She then got out of the car and threw the bottle away, as far into the bush as she could, so no one would see the bottle in the car. She probably put the key into the ignition by habit. She got in and out of the car, probably three times. Three cars passed before the witnesses stopped to help. She did not try to wave those cars down because she was afraid. When the witnesses finally stopped, she felt that she might have been getting a bit drunk. The defendant was cross-examined effectively by the Crown. She had taken no notes at the time and made none later.

When she arrived at her boyfriend’s in Guelph, he was already drunk and became more drunk later. After they argued he went to sleep and she packed up and left. She has never spoken to him since. She drinks almost every day but does not believe she is an alcoholic and stated she can stop at any time she wants. She knew that Burnhamthorpe Road would eventually get her home, but she mistakenly went north on Mississauga Road instead of south. She agreed that she drove many kilometres before realizing that she was going the wrong way. She said this was because she was upset by their break-up.

She felt all right to drive. She turned around but the road was narrow and she went into the ditch. At the time, she thought that wine would help to calm her. She was too afraid to flag down the first three cars that passed, but agreed that she would have been better able to defend herself sober than drunk. She stated that she was in shock. After the accident they found the car to be operable, although the radiator needed to be topped up periodically until it was fixed. At the time of the accident, however, she believed that the car was not driveable. There was no further evidence.

The Toxicologist’s Report, filed as Exhibit 1, places the defendant’s blood alcohol concentration at about 1:37 a.m., as well over the legal limit. The Intoxilyzer tests were taken more than two hours from the time of the 911 call and were both more than double the legal limit. The Crown submits that the charges are proven beyond a reasonable doubt. The defence submitted that the Toxicologist’s Report was predicated on care or control at about 1:37 a.m., and that the witnesses could not be so precise, such that the report should not be relied on.

Further, the defendant drank significant alcohol after driving but before the witnesses stopped, and as such, one of the toxicologist’s presumptions of no alcohol consumption has been negated. Further, the defendant submits that her Charter rights were violated and all evidence, including the observations of the police must, therefore, be excluded. I start by a general observation that in my view, the Crown has not proven either count beyond a reasonable doubt. While the defendant’s version of events is barely believable, the evidence of the officer in charge was completely unreliable.

I do not believe he was misleading the Court, but his evidence was, nonetheless, completely unreliable. He presented as an excruciatingly inexperienced witness, was tied completely to his notebook, to the point where, when he went beyond his notebook, his evidence took on a very unreliable context. His notebook itself was greatly flawed in recording what took place and he intermingled what he observed with what the witnesses told him they had observed.

He candidly accepted that he delayed important Charter advice, delayed the breath demand, delayed the caution, delayed implementing the defendant’s rights to counsel at the station and recalled at trial events completely absent

from his notes, while failing to recall other equally important events or facts that were also absent from his notes. He testified that the defendant’s car hood was warm to the touch long after the time the facts established the witnesses had come upon the defendant and her car had not run since. He also said that one of the witnesses told him the car hood was warm when they arrived, a fact that none of those witnesses testified about.

The officer noted signs of impairment not noted by others, not a critical lapse given that police officers are trained to observe and note events when lay people may not be, but the observations were so disparate as to be difficult to reconcile. The defendant was clearly in the driver’s seat of her vehicle at the time the civilian witnesses arrived. The Crown is entitled to rely on the presumption of care or control. I am satisfied that this care or control was within moments of 1:37 a.m., given the timing of the call to 911 and the officer’s dispatch.

The Crown was entitled to rely on the expert’s report as to that time. There was no alcohol consumed after that care or control. There was no defence expert evidence as to bolus drinking, nor that the approved instrument was in error. The defendant’s testimony as to care or control is that she did not believe her vehicle was operable, had no means of extracting her vehicle from the ditch, and made no request of the witnesses to help her extract the vehicle, and that she was alone and scared in the countryside. The vehicle was well off the road and not an interference with other vehicles.

The only risk of future driving here was the risk that the defendant might change her mind and drive while still impaired or over 80. Given her readings, this would normally be a significant risk indeed. I note, however, that the vehicle to all intents and purposes was undriveable, the front being buried in the grass and mud. In these circumstances, I conclude that the defendant has rebutted the Code presumption of care or control. There is no evidence of when she actually drove.

While her evidence of post-driving consumption is unlikely, it is possible that during a lengthy delay in the middle of the night in the country, this defendant might have taken solace in alcohol. The officer’s observations of the effect of alcohol is called into question by the diminished reliability of those observations and of his evidence in general. I don’t need to determine whether there were Charter breaches here and what remedy is appropriate, but I note that I had great difficulty in accepting the accuracy of the officer’s evidence in regard to any of the issues here.

A closer examination of the officer’s conduct in arresting the defendant, in delaying the necessary demands, right to counsel and caution, and in implementing the right to counsel at the station may well have been profitable to the defence allegation of Charter breach. How this could translate to an exclusion would have been perhaps more problematic. In the event, as stated, the Crown has failed to prove the necessary elements of both charges. The defendant is accordingly acquitted on both counts. Thank you, counsel.

WHEREUPON THIS MATTER CONCLUDES ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S ​ENTERED ON PAGE

REASONS FOR JUDGMENT 1 Transcript Ordered: December 11, 2012 Transcript Completed: January 9, 2013

Ordering Party Notified: January 9, 2013 Information No. 11-630 Citation: R. v. Musse , 2012 ONCJ 847 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. NINA MUSSE R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE B. PUGSLEY on October 23, 2012 at ORANGEVILLE, Ontario

APPEARANCES : L. Marcon Counsel for the Crown B. Brody Counsel for N. Musse