r v. MATTHEW NINE O'CLOCK, 2014 QCCQ 4864

R. c. Nine O'Clock 2014 QCCQ 4864 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF VAL-D'OR Criminal and Penal Division No.: 615-01-019514-127 DATE: May 16, 2014 ______________________________________________________________________ PRESIDING: THE HONOURABLE RENÉE LEMOINE J.Q.C. ______________________________________________________________________ THE QUEEN Prosecutor v.

MATTHEW NINE O'CLOCK Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ I – THE FACTS [ 1 ] On December 2, 2011, the patroller from the S.Q. police force, Danny Meunier, received a call at 1:27 p.m. from the S.Q. department in Amos, requiring assistance for a car robbery. The information mentioned that the suspect was in possession of a knife and was possibly intoxicated by alcohol. The vehicle was described as being a 2005 blue Cavalier. [ 2 ] Constable Meunier drove in the direction of Amos by Route 111.

On his way, he received information from an anonymous driver who was following another vehicle whose driver was driving dangerously. He was driving on both sides of the road. [ 3 ] Constable Meunier decided to wait until the vehicle neared the community of Vassan. He observed the blue Cavalier vehicle and decided to follow it for about 800 metres. He observed that the vehicle was weaving from the left to the right side of the road, crossing over the median line.

He saw the vehicle repeat the same pattern three times, come back to its lane, cross the white line and touch the shoulder of the road. [ 4 ] The suspect vehicle crossed other vehicles on the road. Those observations were made at 2:00 p.m., and the erratic driving could not be explained by the weather. The weather was nice, it was sunny and the road was dry. [ 5 ] Constable Meunier tried to intercept the suspect vehicle by turning on his flashing lights. The suspect vehicle reduced speed to 60 km/hr, but did not stop.

The constable turned on the sirens, but it took around 400 metres before the driver stopped his vehicle. The driver put his hand out the window to gesture toward the front of the vehicle. [ 6 ] As the information received earlier was to the effect that the suspect was possibly armed, the interception was high risk. Constable Meunier used the car speaker to order the suspect to exit the car. He pointed his firearm at the suspect. [ 7 ] The suspect cooperated and executed the orders to kneel and lie down on the ground.

At 2:21 p.m., Constable Meunier handcuffed the suspect and searched for a firearm or a knife. [ 8 ] The suspect was arrested for robbery by Constable Meunier. Constable Meunier could smell a strong odour of alcohol during the arrest procedure. [ 9 ] The suspect was arrested for impaired driving. He was placed in the patrol vehicle. Constable Meunier read the demand to give a sample of breath at 2:24 p.m. [ 10 ] The suspect clearly understood the explanations given concerning the consequences in case of refusal to comply with the demand. [ 11 ] At 2:33 p.m., the suspect was driven to the police station.

The police officer noticed a strong odour of alcohol inside the vehicle. During the ride, the suspect was calm and did not say anything. [ 12 ] At 2:53 p.m., the suspect arrived at the police station and exited the patrol car. As he walked to go inside the police station, he dragged his feet on the ground. [ 13 ] He was placed in the investigation room and Constable Meunier read him S.Q. form 0.49 to explain the reasons for his arrest,

his right to be assisted by a lawyer and his right to remain silent. [ 14 ] The suspect asked to call Mtre. Claude Beaudet. He discussed matters with Mtre. Beaudet between 3:06 and 3:22 p.m. When he came back to Room 28, Constable Meunier noticed a heavy odour of alcohol. He also observed that the suspect had blood-shot eyes, slurred speech and scum at the corners of his mouth. [ 15 ] The suspect performed two tests.

One at 3:47 p.m., where the result was 76 milligrams per 100 milliliters, and the other at 4:12 p.m., where the result was 66 milligrams per 100 milliliters. [ 16 ] The accused completed a drinking scenario, stating that he had drunk four beers and two bottles between 10:30 a.m. and noon. The accused's version [ 17 ] On December 1, 2011, he left Chisasibi around noon to go to Matagami. [ 18 ] He was with his brother Alfred, his brother's girlfriend, Betty Mianscum, and a friend, Lindy Weetaltuk. When he arrived at Matagami, around 11:30 p.m., he got a room with his friend and went to bed.

He got up around eight o'clock the next morning. They waited until around nine o'clock to go to the store. [ 19 ] He bought a 12-pack of Budweiser beer cans and two bottles of 5% bootleg alcohol. They went back to the hotel and drank. The accused drank four beers and two bottles of bootleg. [ 20 ] They left at around 11:00 a.m. to go to Val-d'Or. He was seated in the back on the passenger side. [ 21 ] On the way to Val-d'Or, an argument broke out between his brother's girlfriend and him.

She threatened him with a knife. [ 22 ] He left with the vehicle to escape her at around 1:00 p.m. [ 23 ] The accused had never driven a car before. He has no experience at all as a driver. He has no driver’s license. [ 24 ] When he realized that the police were trying to intercept him, he slowed down, but wanted to be sure he was in a safe spot before stopping. He drove around a bend and waited to find a safer spot. [ 25 ] He explained dragging his feet at the police station by the fact that he was under arrest and that it was not the most exciting moment for him.

His hands were handcuffed behind his back. [ 26 ] Concerning the fact that he had driven over the median line and on the white line along the shoulder of the road, he explained that he first wanted to stop, then changed his mind in order to find a safer spot to stop the vehicle. [ 27 ] According to the accused, the argument began when he hit his brother's girlfriend with his leg. He and his brother had an argument about the trip. Mrs. Mianscum hit him with the flat side of the knife. He got into the driver’s seat and drove away with the car. He drove for about an hour before being intercepted by the police.

II – THE ISSUES [ 28 ] The issue before me is whether the Crown has met the onus of proof under s. 253(1)( b ). III – THE LAW [ 29 ] The trial judge must consider the whole of the evidence before drawing the inference that the ability of the accused to operate a motor vehicle was impaired. It does not matter whether the impairment was slight or marked. But the focus is on impairment of the ability to drive, not impairment of functional ability.

One cannot simply assume that, where a person's functional ability is impaired in some respect by alcohol, then his or her ability to drive is also impaired. [1] [ 30 ] The determination of whether an accused's ability to drive was impaired by alcohol is a question of fact. It depends on circumstantial evidence in the form of observed behaviour.

Where the evidence is ambiguous or equivocal, it would not meet the requisite standard of proof. [ 31 ] The Court must weigh the evidence as a whole, taking into account the totality and the cumulative effect of all the symptoms and observations. [ 32 ] The evidence shows that, shortly after receiving information from an anonymous driver, Constable Meunier pulled over a vehicle that matched the description provided to him. He testified that he repeatedly observed the vehicle swerving between the shoulders of the road across the centre line.

Those observations were made before the attempt to intercept the vehicle by activating his flashing light. According to Constable Meunier, when he tried to intercept the vehicle, the suspect reduced speed, but it took around 400 metres before he finally stopped the vehicle. [ 33 ] The explanation given by the accused concerning his improper driving is that he wanted to find a safer place to stop. The Court could accept this explanation if the distance had been short but, according to the police officer, he observed the erratic driving for over one kilometre.

Moreover, the erratic driving was observed a few times before Constable Meunier decided to intercept the accused. He followed the vehicle for around 800 metres before activating his flashing light. [ 34 ] The Court is of the opinion that the description fits that of erratic driving. The fact that the accused repeatedly crossed the

median line (three times) is incompatible with the reason given by the accused, that he wanted to stop but changed his mind in order tofind a safer spot. [35] Constable Meunier’s observations are also consistent with alcohol consumption by and impairment of Mr. Nine O'Clock. Henoticed a strong odour of alcohol inside the vehicle. He also noticed a strong odour of alcohol at the police station, in Room 28. Mr. NineO'Clock's eyes were bloodshot.

He had slurred speech and scum at the corners of his mouth. [36] When I consider all of the evidence before me, the only reasonable conclusion is that the erratic driving was the result ofalcohol impairment. [37] THEREFORE THE COURT [38] DECLARES the accused guilty of a charge of impaired driving. __________________________________ RENÉE LEMOINE J.C.Q. Mtre. François ParentCounsel for the prosecutor Mtre. Claude BeaudetCounsel for the accused Date of hearing : November 14, 2013 [1] R. v. Stellato, (SCC), [1994] 2 SCR 478; R. v. Andrews, 1996 ABCA 23; R. c. Guibord, [1998] J.Q. No. 564, par.11 (CAQ); R. c.

Laprise, (QC CA), [1996], J.Q. No. 3950 (CAQ).