R. v. Almeida, 2012 ONCJ 360

Citation: R. v. Almeida , 2012 ONCJ 360 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- ALEXANDER ALMEIDA REASONS FOR JUDGMENT Duncan J. 1 . The defendant is charged with impaired and exceed 80, care or control, offence date March 3 2010. 2 . Responding to a call, police found the defendant in the driver’s seat of a BMW vehicle parked in the parking lot of the Misty Moon, a licensed establishment. The keys were in the ignition and the engine was running.

The defendant was in the normal driving position except that his head was back and his eyes were closed. It took a couple of attempts to wake him and when he did wake he stared and made no attempt to open the window or door. The officer then opened the door and asked the defendant where he had come from – “Toronto”- and whether he had been drinking – “three drinks”. He was asked to step out of the car and had difficulty with his balance. After producing a driver’s licence he was directed to sit in the police car and again displayed difficulty with balance when he did so.

Once the defendant was in the police car, the officer noticed a smell of alcohol. The defendant was again asked where he was coming from and this time he answered “Brampton”. The officer formed the requisite opinion and arrested the defendant for impaired care or control. 3 . The timeline was as follows: • 10:06 - defendant found in the car • 10:15 – arrest and rights to counsel • 10:18 - breath demand • 10:21 – leave for 12 Division • 10:24 – arrive at 12 Division

• 10:35 – breath tech arrives at 12 Division • 10:44 – Intoxilizer turned on and begins warm up • 10:58 - defendant turned over to breath technician • 11:07 – breath tech reads right to counsel caution and demand to 11:10 • 11:19 – first sample – result 155 • 11:41 – second sample – result 159 4. The defendant testified that he was essentially homeless at the time having broken up with his girlfriend and being not welcomeat his mother’s place in Toronto.( She was mad at him because he had broken up with his girlfriend.) He went to the Misty Moon around1 pm and drank until around 4.

He was tired and nearly broke so he went to his car to sleep. He said that he planned to sleep thereovernight until the morning when he would either go to his mother’s in Toronto or to his friend’s place in Brampton. When questionedbetween tests by the breath tech he said that he planned to drive when he felt OK. At trial he maintained that he knew he was not “OK”at the time the police officer arrived and therefore was not intending to drive at that time. 5. In a very thorough presentation counsel for the defendant has raised a number of arguments: 1. The grounds for arrest and demand were deficient 2.

The breath tests were not taken as soon as practicable 3. The instrument used was not an approved instrument 4. The solution was not changed as required 5. The defendant was not in care or control 6. The defendant was not impaired Reasonable grounds: 6. The statutory requirement is that the officer believe, and have reasonable grounds to believe that the defendant is impaired byalcohol or a drug. Impairment to any degree is the standard: R v Stellato[1994] 2 SCR 474. The grounds need not be conclusive, provideproof beyond reasonable doubt or establish a prima facie case: R v Censoni [2001] OJ 5189.

Competing inferences do not detract fromthe reasonableness of the belief: R v Bush2010 ONCA 554 , [2010] OJ 3453 7. In this case the arresting/demanding officer had a constellation of facts that in my view supported the legal authority for his actionincluding: • Time of day (10 pm) and location (outside bar) • Defendant sleeping/passed out while engine running and lights on • Difficulty waking/rousting defendant • Defendant’s stunned non-reaction to presence of the officer • Smell of alcohol • Admission to drinking 3 drinks • Some difficulty with balance • Eyes watery and red rimmed As soon as practicable:

8. The first test was taken just over an hour after the arrest. The timeline above reveals that all time was consumed in pursuit ofproper and valid steps in the investigation and processing of the detainee. 9. Counsel focuses his argument on the extra time incurred in bringing the QT to 12 Division rather than taking the defendant to theQT at 11 Division. The arrest occurred in 12 Division by a 12 Division officer. The location was just a couple of minutes away from 12Division station. By contrast, 11 Division was 15 or 20 minutes away.

It seems to me to be 6 of one and half dozen of the other as to whogoes where. Further, there is some merit to the thinking that the QT can travel concurrently with the booking procedures, thus optimizinguse of time. 10. In any event, I do not think the court should get involved in second guessing the minutiae of the police operational decisions andactions. The test is not as soon as possible but as soon as practicable. The test was satisfied in this case. Approved instrument: 11. The evidence from the QT both viva voce and certificate was that he used an Intoxilizer 8000C, an approved instrument.

Thedefendant’s argument is based solely on the description of the instrument as an “Intoxilizer 8000” in the American manufacturer’scertificate of calibration that presumably was shipped with the machine. 12. I would not give effect to this argument. In my view the evidence relied upon is far too vague to cast any doubt on the unchallengedevidence of the technician that the machine he used was an Intoxilizer 8000C.

Further, if it was necessary to do so, I would take notice ofthe well known fact that the “C” stands for Canada and represents the specific software employed in the machine that corresponds withCanadian legal requirements, for example ensuring that at least 15 minutes elapses between tests: R v Powichrowski (2009) 2009 ONCJ 490 , 70 CR 6th 376 at Para 41. 13. Counsel has provided me with an unreported judgment of Ready J. R v Thanapalan (Jan 5 2012) where this point was raised andfound sufficient to raise a doubt in the court’s mind as to whether an approved instrument was used in that case.

It is not clear to me thatthe court had the evidence that I have in this case identifying the instrument used as an 8000C. It suffices to say that the argument and itsthin evidentiary foundation do not raise any doubt in my mind in this case. The date of solution change: 14. The defendant was arrested and tested on March 3 2010. In the course of his evidence, the QT said that the solution used in theIntoxilizer had been changed “on February 28”.

It is argued that this evidence is insufficient to show that the solution was changedwithin the times permitted by operational protocol because the officer did not give the year and specify that he was referring to February28 2010. 15. There is no merit to this argument. The context of the evidence makes it clear that the witness was referring to the immediatelypreceding date mentioned and not some distant year. Some common sense must be employed in the understanding of evidence.Witnesses need not state the obvious. 16.

In any event, no evidence was required on the point of solution change at all, or the date of its occurring. Any shortcoming on thistopic had no bearing on the applicable presumption. Care or Control:

17. The defendant was in the driver’s seat and is presumed to be in care or control. He seeks to rebut that presumption by his evidencethat he had no intention to drive until the morning when he would be sober. 18.

Even if the defendant’s evidence is accepted, it would appear to be insufficient to rebut the presumption: R v Hatfield (1997) (ON CA), 115 CCC3d 47 (Ont CA) and R v Szymanski (2009) (ON SC), 88 MVR 5th 182 (Ont SupC rt)para 62-64. 62 If a trial judge were to find that the accused probably did not intend to drive until he or she was no longer impaired or over the legallimit and also concluded and that there was no real risk of the accused changing his or her mind and driving while impaired or over thelegal limit, a persuasive argument can be made that the presumption has been rebutted.

It can be argued that this is consistent with Whytein permitting the accused to rebut the presumption by showing that he or she entered the vehicle for a reason other than to set it inmotion. The Whyte criteria would have to be qualified that the person occupied the driver's seat for a reason other than to set it in motionuntil they were no longer impaired or over the legal limit. 63 The difficulty with that approach is not the Court of Appeal judgment in Fleming as the Crown submits because of thedistinguishing factors between Fleming and the facts on this appeal.

Rather, the concern is found in Hatfield who testified that he wasgoing to sleep until he was no longer impaired. There was no adverse credibility findings in Hatfield. The Court of Appeal found that oneof the reasons the presumption had not been rebutted was that Hatfield said he intended to continue driving when he decided that he wasno longer impaired. I am not persuaded the appellant's argument remains a viable position given the Court of Appeal's judgment inHatfield.

For the same reasons as the scenario in para. 56 where an accused does not intend to drive for such a long period of time thatthey would no longer be impaired or over the legal limit does not rebut the presumption. (underlining added) 19. But assuming that such an intention might rebut the presumption, it would do so only when found to be credible on a balance ofprobabilities. I am unable to so find in this case. In fact, I do not believe him – either the background that he was living out of his car orthe specific contention that he would not drive until sufficient time had passed that he would be clearly sober.

I think it highly unlikelythat both his mother and sister would deny him shelter, particularly in the winter months. Specifically I find it unlikely and implausiblethat he would have any plan to remain immobile until well into the morning. Rather, it is most probable that he intended to drive when,in his potentially impaired self -assessment he was OK to do so (though it is not necessary for me to determine what his intention was,the burden being on the defendant). Such an intention does not rebut the presumption: R v Szymanski and authorities cited therein. 20.

Further, apart from the presumption, in my view the defendant was in de facto care or control. The issue here is risk of danger andeven if the defendant had an initial intention to not drive, there was a real risk that he would change his mind. He had the means ofoperating the car and had in fact started the engine. He was in the driver’s seat. He was not at any destination but planned to goelsewhere and to drive to get there. No alternate plans or arrangement were made or even contemplated. He had almost twice the legallimit of alcohol in his blood.

I am satisfied that the defendant constituted the sort of risk that the

section was designed to prevent: R vSzymanski supra para 84-94. Accordingly he was in care or control. Impaired: 21. While the evidence of articulable indicia is not over-whelming and there was significant contradiction among the officers, the caseis not limited to their evidence. In addition, there is the evidence of the defendant himself who acknowledged that he was not fit to driveat the time he was arrested. It is difficult to see this admission as other than dispositive of any issue of impairment. Conclusion: 22. The defendant is found guilty of both offences. The impaired count is conditionally stayed. May 22 2012 B Duncan J E Ashurov for the defendant

H. Guzman for the Crown