R. v. Hackman, 2016 ONCJ 515

DATE: 2016·August·24 CITATION: R. v. Hackman , 2016 ONCJ 515 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ANKOMA JAMES HACKMAN Before Justice J. M. Grossman Heard on July 19 and 25, 2016 Judgment released on August 24, 2016 I. Shaikh.......................................................................................................... Counsel for the Crown J. Gold.........................................................................................................

Counsel for the Accused Grossman, J.: [ 1 ] Ankoma James Hackman is charged that on or about the 27 th day of June in the year 2015, at the City of Toronto, in the Toronto Region did, while his ability to operate a motor vehicle was impaired by alcohol, operate a motor vehicle and thereby commit an offence under

Section 253, subsection (1), clause (

a) of the Criminal Code of Canada . [ 2 ] He is further charged on or about the 27 th day of June in the year 2015 at the City of Toronto, in the Toronto Region did, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, operate a motor vehicle and thereby commit an offence under

section 253, subsection (1), clause (

b) contrary to the Criminal Code , contrary to

section 253 , subsection (1) , clause (

b) contrary to the Criminal Code of Canada . [ 3 ] Mr. Hackman brought a Charter Application seeking an Order to exclude evidence of breath samples pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms alleging breaches of his rights under

Section 8 , 9 and 10(

b) of the Charter . It is of interest that the Application in Form 1 seeks only the exclusion of breath samples as relief but the grounds to be argued and ultimately argued invite more. It was agreed that the Application would be blended with the trial evidence. [ 4 ] In the course of the trial, Crown counsel conceded breaches of

section 9 and 10(

b) of the Charter in consequence of events relating to investigative detention at the hospital and invited dismissal of the Over 80 mgms. charge. That charge was dismissed. As such, the relief sought in Mr. Hackman’s Charter Application, namely to exclude evidence of the breath samples no longer applied. I address

Section 8 further along in this Judgment. Let me turn to the evidence. [ 5 ] Nicole Wauchope testified she was with her sister, friend and four children on June 27, 2015 at Metro plaza at the intersection of Keele Street and Wilson Avenue in the City of Toronto. She left the plaza driving her Chevy Traverse SUV at about 9:10-9:15 p.m. heading towards the 401 highway. While waiting at the traffic lights, suddenly and without warning, she was struck in her rear bumper by a Toyota motor vehicle operated by Mr. Hackman. [ 6 ] I am satisfied Mr. Hackman was the driver by reason of Ms.

Wauchope’s uncontradicted evidence that she approached the Toyota and observed Mr. Hackman in the driver seat. She testified she had a ten minute conversation with him while he was in his vehicle. She also related she saw him drive to the CIBC plaza after the collision as he offered to pay for the damage. [ 7 ] Shana Smith testified she was in the vehicle with Ms. Wauchope and she too stated she went out to talk to the driver who was sitting in the driver’s seat and no one else was with him in his vehicle. Both Ms. Wauchope and Ms.

Smith said the driver of the vehicle that collided with them and with whom they had a conversation was Mr. Hackman whom they identified in Court. [ 8 ] Ms. Wauchope testified she made observations of Mr. Hackman at the CIBC plaza. She observed him going back to his car stumbling over his feet. She stated she smelled a whiff of alcohol. She also related she observed him go back to his car and slump over. When asked questions, she said he was not responding. Ms. Smith also testified he would not give any information. She also stated that she did smell some kind of odour of alcohol.

She said: “I do drink so I know smell.” [ 9 ] Michael Bradbrooke, a paramedic with Emergency Medical Services was called to the scene to attend to Mr. Hackman who complained of abdominal pain. Mr. Bradbrooke testified he observed Mr. Hackman in the driver seat of the motor vehicle. He and his partner took Mr. Hackman to Humber River Church Hospital and when Officers Malhi and Tobin arrived, they were pointed in the

direction of Mr. Hackman by Mr. Bradbrooke. [10] Officers Malhi and Tobin were working the evening shift on June 27, 2015 when they received a radio call to respond to amotor vehicle accident at Keele Street and Wilson Avenue. Officer Malhi stated the call was in respect of a possible impaired. OfficerTobin stated the call was in respect of a personal injury collision. They both attended the scene, spoke to witnesses and then attendedHumber River Church Hospital. Officer Malhi testified that upon approaching Mr. Hackman, he could smell alcohol coming from Mr.Hackman’s breath.

He observed his eyes were bloodshot and he appeared to be unsteady on his feet. The Officer stated in cross-examination that he observed Mr. Hackman’s eyes to be bloodshot even before he talked to him. [11] Officer Tobin testified she observed Mr. Hackman at the hospital. On approaching him, she smelled a strong odour of analcoholic beverage on his breath. She observed him to be unsteady on his feet with a slight sway, that he had red glossy eyes and slowdelayed speech with an accent.

She arrested him for impaired operation of a motor vehicle once she smelled the odour of the alcoholicbeverage. [12] I found Officer Tobin demonstrated somewhat of a combative resistant spirit struggling to make any concessions or tosubscribe to any acknowledgments unfavourable to the prosecution. Where her evidence is inconsistent with the evidence of OfficerMalhi, I prefer the evidence of Officer Malhi. [13] Mr. Gold argues no observation made after Mr. Hackman’s conversation with Officer Malhi should be considered. TheCrown invites me only to rely on observations made up to the point of arrest.

I turn my mind to the evidence of Ms. Wauchope and Ms.Smith. Their observations occur before the arrival of the paramedic or the police. Their collective evidence puts Mr. Hackman in thedriver seat of his Toyota motor vehicle with no one else in the car. He is seen to stumble over his feet. A smell of a whiff of alcohol isdetected. He is seen to slump over in his car. He was unresponsive to questions and failed to provide information. The only explanationgiven to the civilian for the accident was a failure to negotiate a lane change.

Taken collectively, the conduct of the accused and theobservations of the two civilian witnesses conveyed to the police officers would support the belief that Mr. Hackman’s ability to drivewas at least slightly impaired by alcohol consumption. [14] In R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.); affd. (SCC), 90C.C.C. (3d) 160 (S.C.C.), Labrosse J. stated at para. 14: “If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment [of the ability to drive], theaccused must be acquitted.

If the evidence of impairment establishes any degree of [such] impairment ranging from slight to great, theoffence has been made out.” [15] I rely on the evidence of the civilian witnesses. This information was provided to Officer Mahli. [16] In R. v. Martin, [2006] O.J. No. 4602 (Ont. C.A.), on appeal from the decision of the

summary conviction appeal inrespect of the offence of impaired driving, the Court stated at para. 5 as follows: “In our opinion, just because the arresting officer was of the opinion that he did not have grounds to arrest the appellant for impaireddriving the trial judge was not obliged to acquit.

The trial judge had other evidence to consider besides that of the police officerindicating that the appellant was impaired, specifically the evidence of the civilian witness.” [17] Irrespective of the officers’ observations, in the case at bar, I have evidence of two civilian witnesses who madeobservations even before the paramedic and police officers arrived.

The evidence collectively relates an accident may appear to havebeen caused by an error in judgment on the part of the accused as well as observation of smell of alcohol, stumbling, slumping in thedriver seat and resistance to provide information dictated by the Highway Traffic Act. [18] I have considered R. v. MacPherson, [2008] O.J. No. 1531; ONCJ 184 (O.C.J.) and also R. v. Peterson, [2009] O.J. No.671; ONCJ 61 (O.C.J.). As Green J. stated in Peterson at para. 31: “There is no statutory definition of impairment.

It is fundamentally a factual inquiry to be determined on a global review of the relevantevidence tendered in each case.” [19] Green J., in a later decision, namely R. v. Leach, [2012] O.J. No. 2584 (O.C.J.) stated at para. 15: “As has been often said, one must have regard to the entire constellation of circumstances to determine the question of whether anaccused’s ability to drive was impaired by alcohol.” [20] It is clear that an accident happened. It is relevant to consider the circumstances under which it occurred. It is relevant toconsider the resistance of Mr.

Hackman to provide information and his effort to circumvent police engagement by attempting to pay forthe damage even though his visiting a bank to do so was without positive result. It may be inferred that he was seeking to delay theprocess of involving police investigation. It is also clear the officers received information describing indicia of impairment and identityof Mr. Hackman as the driver and sole occupant of the vehicle which collided with the SUV driven by Ms. Wauchope. [21] In considering whether reasonable and probable grounds existed, I consider R. v. Grant, [2014] O.J.

No. 1143 S.C.J.,wherein Durno J. referred to R. v. Bush (2010), 2010 ONCA 554 , 259 C.C.C. (3d) 127 as follows: “54 Whether reasonable and probable grounds exist is a fact- based exercise dependent upon all the circumstances of the case. Thetotality of the circumstances must be considered: see Shepherd, at para. 21; R. v. Rhyason, [2007] 3 S.C.R. 108, [2007] S.C.J. No.39, 2007 SCC 39 ; R. v. Elvikis, [1997] O.J. No. 234, 31 O.T.C. 161 (Gen. Div.), at para. 26; Censoni, at para. 47.

That anaccident occurred, including the circumstances under which it occurred and the possible effects of it, must be taken into account by theofficer along with the other evidence in determining whether there are reasonable and probable grounds to arrest for impaired driving. Consumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case:

Rhyason, supra, at para. 19. 56 An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaireddriver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as theessential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable groundsobjectively existed: Censoni, at para. 46.

The absence of some indicia that are often found in impaired drivers does not necessarilyundermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello, [2002]O.J. No. 93, 22 M.V.R. (4th) 165 (C.A.), at para. 2; Wang, at para. 21. 57 Consideration of the totality of the circumstances includes the existence of an accident.

However, that the accident could havecaused some of the indicia relied upon when they could also have been caused by the consumption of alcohol does not mean the officerhas to totally eliminate those indicia from consideration: R. v. Duris, [2009] O.J. No. 4403, 2009 ONCA 740 , at para. 2. Theyhave to be considered along with all the other indicia in light of the fact there may be another explanation…” [22] I have already referred to R. v. Stellato (supra). Thereafter, Conrad J. in R. v. Andrews, 1996 ABCA 23 , [1996]104 C.C.C. (3d) 392, (Alb.

C.A.) stated at para. 16: “16 Stellato approves the principle that a conviction on a charge of impaired driving can be founded on proof beyond a reasonabledoubt of slight impairment of the ability to drive. If the ability to operate a motor vehicle is impaired (even slightly) by alcohol or drugs,it is not necessary that the degree of that impairment be marked. [23] I have taken into consideration all observation of conduct and the entire collection of circumstances even before policeinvolvement. I have also considered Officer Malhi’s observations of Mr. Hackman even before engaging him in conversation.

Thecivilian witnesses testified clearly and were unshaken on the essential material issues. They were in a position to offer the best evidenceas it related to the accident and their observations of Mr. Hackman as the driver of the vehicle that collided with their SUV. I found Ms.Wauchope and Ms. Smith to be truthful and believable. I am satisfied reasonable and probable grounds existed. Accordingly, theCharter application fails. [24] I adopt the language of Takach J. in R. v. Varcoe, [1992] O.J.

No. 3833 (O.C.J.) where, in dealing with a trial of impaireddriving causing bodily harm, he stated at para. 12 as follows: “Each of the pieces of evidence, standing alone, may not be indicative of operating a motor vehicle while one’s ability to do so isimpaired by the consumption of alcohol. The totality of the evidence, however, establishes that fact to a moral certainty.” [25] In conclusion, I am satisfied beyond a reasonable doubt that the Crown has established all of the essential elements of thecharge of Impaired Driving and there will be a conviction.

Released: August 24, 2016 _________________________________ Signed: “Justice J. M. Grossman”