R. v. Day, 2018 ONCJ 887

ONTARIO COURT OF JUSTICE CITATION: R. v. Day , 2018 ONCJ 887 DATE: December 5, 2018 Information No.: 3911-998-17-C1188 BETWEEN: HER MAJESTY THE QUEEN — AND — Abraham Day Before Justice Diane M. Lahaie Heard on August 24, October 17 and October 31, 2018 Reasons released on December 5, 2018 Michael Purcell................................................................................... Counsel for the Crown Matthew Wolfson............................................................................

Counsel for the accused LAHAIE, J.: [ 1 ] Abraham Day faces one count of operating a motor vehicle while his blood alcohol concentration in his blood exceeded 80 mg of alcohol per 100 ml of blood and one count of impaired operation of a motor vehicle. [ 2 ] There is a Charter Application filed in this case. On consent, the trial proceeded in a blended fashion. [ 3 ] There were a number of issues raised in this case. The Applicant abandoned the argument set out in his Charter Application regarding an alleged failure by the police to inform the Applicant of his rights to counsel without delay.

The evidence revealed no issue with the informational component of

section 10(

b) of the Charter. There are four remaining issues to be addressed. Firstly, the Applicant argues that the investigating officer did not have the requisite reasonable suspicion to make a breath demand pursuant to section 254(2) of the Criminal Code . Secondly, defence counsel maintains that the Crown has failed to demonstrate that the search at roadside was reasonable as there was no evidence that the officer was trained in the use of the approved screening device (ASD) or that he subjectively knew that a failure on the ASD provided grounds for the arrest and subsequent s. 254(3) demand.

Thirdly, counsel argues that the institutional practice of not allowing an accused to dial the number of his counsel of choice and the application of this practice to Mr. Day constitutes a breach of the Applicant’s

section 10(

b) rights. Finally, defence counsel asserts that the Crown cannot disprove that the indicia of impairment were the result of other possible explanations such as fatigue. Mr. Wolfson argues that the Crown has not met its burden on the charge of impaired operation. [ 4 ] I will begin by setting out the evidence and facts of this case. I will then deal with each of the issues raised, providing the governing law and the court’s findings. The Evidence [ 5 ] The Court heard the evidence of Alissa Trudell, a civilian witness. I also heard the testimony of Cst. Degray and Cst. Norman.

The accused did not testify. [ 6 ] The facts as I find them are as follows: [ 7 ] Shortly before 12:30 a.m. on August 19, 2017, Alissa Trudell and her boyfriend attended the McDonald’s restaurant at

Brookdale Avenue and Thirteenth Street intending to order food at the drive-thru. There were a number of cars at the drive-thru that night. People who attend the McDonald’s place their order at one of two ordering stations and then drive forward in a single lane as they proceed to the window to receive their order. [ 8 ] As she waited, Ms. Trudell realized that the line had not moved in approximately five minutes. Ms. Trudell’s boyfriend honked his horn a number of times as did others in the line. Eventually, Ms. Trudell’s boyfriend pulled out of the line to see why they were all stopped. Ms.

Trudell noticed that the accused’s vehicle was stopped, with no vehicles in front of it, holding up the line. The accused was slouched down with his head on his seat and was passed out. The multiple sounds of the car horns did not rouse the accused, nor did the actions of other patrons who shook Mr. Day and tried to talk to him at his open driver’s side window. Ms. Trudell telephoned 911. The 911 call was played during the trial and filed in evidence. [ 9 ] Approximately two minutes after someone first reached in to shake the accused, Mr. Day woke up and then drove to the pick- up window. [ 10 ] Cst.

Degray arrived shortly after the call was placed to 911. Ms. Trudell was still on the phone with the operator when the officer arrived. Cst. Degray had been advised of the description of the vehicle and the license plate as well as the fact that the male had fallen asleep or was passed out in the drive-thru. [ 11 ] At 12:31 a.m., the officer saw the accused’s vehicle as it exited the McDonald’s property and went onto Brookdale Avenue travelling northbound. Cst. Degray pulled the accused’s vehicle over approximately 30 meters beyond the McDonald’s exit, in front of the Wendy’s restaurant. [ 12 ] Mr.

Day was the lone occupant of the vehicle. Officer Degray asked the accused where he was coming from and he said “home”. The officer asked where that was and the accused replied “the Cotton Mill”, which is in the south east end of the City. The officer asked where the accused was going and he stated that he was going home. Cst. Degray asked for the usual documentation and noted that the accused’s movements in retrieving his documents were slow. He noted that the address on the accused’s driver’s license was 11 Walter Delormier Road on Akwesasne. Cst.

Degray asked the accused why he was travelling north on Brookdale Avenue, implying that this was not normal as he should have exited on Thirteenth Street instead of Brookdale Avenue. The accused did not answer. When Cst. Degray asked the accused whether he had consumed alcohol that evening, the accused denied that he had consumed alcohol. During his interaction with the accused, Cst. Degray noted that Mr. Day’s speech was slurred. Cst. Degray did not note an odour of alcohol on the accused’s breath. [ 13 ] Cst.

Degray testified that having learned that the accused had been asleep behind the wheel at the McDonald’s drive-thru for quite some time and now observing the accused’s slow movements, his slurred speech and his direction of travel which was inconsistent with his return back to his home, he had reasonable grounds to suspect that the accused had alcohol in his body. He requested that a roadside ASD be brought to his location at approximately 12:35 a.m. and made the roadside breath demand at that time. Cst. Lee arrived and provided Cst.

Degray with the ASD at 12:37 a.m. [ 14 ] The officer provided the accused with a sealed mouthpiece. He explained how to provide a suitable breath sample and demonstrated the use of the device by giving a sample of his own breath. Having obtained a reading of “0” on his self-test, the officer was satisfied that it was in proper working order. [ 15 ] The accused provided an unsuitable sample on his first attempt. The accused blew too hard. Cst. Degray explained that his airflow was too high and asked for a second sample. On the second attempt, there was insufficient air flow.

The accused provided a suitable sample of his breath on his 3 rd attempt which registered a “fail” reading. At 12:42 a.m., the accused was placed under arrest for operating a motor vehicle with a BAC which exceeded 80 mg of alcohol per 100 ml of blood. He was advised of his rights to counsel and cautioned. He stated that he wished to call a lawyer. At 12:42 a.m., the officer made the breath demand pursuant to s. 254(3). The accused understood his rights, caution and the demand. [ 16 ] Cst.

Degray transported the accused to the Cornwall Community Police Service detachment and escorted him into the booking room parading him before Sgt. Pilon. The accused was placed in an interview room. Cst. Degray did not recall the accused’s exact words but believed that he communicated to Sgt. Pilon that he wished to speak with duty counsel, as Sgt. Pilon told Cst. Degray to call duty counsel for the accused. Sgt. Pilon was produced at this trial for cross-examination at the request of defence counsel but counsel chose not to question her. In any event, Cst. Degray dialed the number for duty counsel.

When duty counsel called back, Mr. Day spoke with the lawyer in private. Mr. Day’s call with duty counsel ended three minutes later at 12:59 a.m. [ 17 ] Cst. Norman had been called in as the qualified technician. She was on another call on Carleton Street in the City of Cornwall when she was called to attend at 12:55 a.m. It took her 17 minutes to return to the police station. She arrived at 1:12 a.m. She retrieved her breath technician’s binder and then met with Cst. Degray at 1:17 a.m. at which time she received the officer’s grounds.

She prepared the Intoxilyzer 8000C to receive the accused’s breath samples and performed all of the quality assurance and calibration checks. She went through all of the standard procedures which I will not review as there was no issue with this part of the investigation. Cst. Norman was satisfied that the Intoxilyzer 8000C was in proper working order and that the solution was suitable for use. She took custody of the accused from Cst. Degray at 1:31 a.m. [ 18 ] At 1:33 a.m., Cst. Norman read the accused his rights, caution and repeated the demand. Mr.

Day stated that he had spoken to a lawyer and that he understood his rights and caution. Cst. Norman testified that if the accused had expressed any dissatisfaction with the advice he was given, she would have stopped what she was doing and given him an opportunity to speak with counsel. [ 19 ] Mr. Day provided the first sample of his breath directly into the Intoxilyzer 8000C, providing a suitable sample on his first attempt at 1:36 a.m. The sample registered a reading of 238 mg of alcohol per 100 ml of blood.

The second sample was provided at 1:57 a.m. and registered a reading of 231 mg of alcohol per 100 ml of blood.

[20] During the interview with the accused between the breath samples, Cst. Norman made a series of observations which includedthat the accused took several minutes to tell her about an ailment and why he was taking Nyquil. The accused told Cst. Norman that hehad not been drinking and that he had taken Nyquil six to seven hours previously. The officer further noted that the accused fell asleepwhile she was with him. Cst. Norman also made note of the smell of alcohol on the accused’s breath. [21] The three Crown witnesses provided their evidence in a clear and straightforward fashion.

I found them to be credible witnessesand I found their evidence reliable. The Issues, the Law and the Court’s Findings Issue 1: Did the officer have the requisite reasonable suspicion to make the breath demand pursuant to section 254(2)? [22] Section 254(2) provides that a peace officer may make a demand, requiring a person to provide a sample of his breath foranalysis into an approved screening device where the officer has reasonable grounds to suspect that the person has alcohol in his bodyand that the person has operated a motor vehicle within the preceding three hours.

In making the determination as to whether the facts ofthis case support a finding that the officer had sufficient grounds to make the demand, I must consider all of the circumstances andevidence presented. [23] The requirement that an officer have a reasonable suspicion that the accused has alcohol in his body in order to proceed with thetesting into an ASD is not only a statutory requirement but also a constitutional precondition to a lawful search under

section 8 of theCharter. (R. v. Shepherd, 2009 SCC 35 , [2009] S.C.J. No. 35). [24] Defence counsel argues that Cst. Degray did not have a reasonable suspicion in this case as the evidence before him wasindicative of a person who was simply tired and who had just awoken from a deep sleep. [25] The standard of “reasonable suspicion” was thoroughly reviewed by the Supreme Court of Canada in the matter of R. v. Chehil,2013 SCC 49 , [2013] S.C.J. No. 49.

At paragraphs 26 to 28, Justice Karakatsanis wrote: Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then besubjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the circumstances.

In Kang-Brown, Binnie J. provided the following definition of reasonable suspicion, at para. 75: The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is anexpectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something morethan a mere suspicion and something less than a belief based upon reasonable and probable grounds.

Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be groundedin objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. Asa result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demandingreasonable and probable grounds standard.

The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police willreasonably suspect that innocent people are involved in crime. [26] I find that Cst. Degray reasonably suspected that the accused had alcohol in his system and that this belief was reasonably heldin the circumstances. Cst. Degray was aware that Mr. Day had fallen asleep for some time in the McDonald’s drive thru. He was alsoaware that his movements were slow and that he had slurred speech.

Finally, he considered the accused’s choice to exit onto BrookdaleAvenue rather than the usual way via Thirteenth Street, if he was going home from that location. On the totality of the evidence,including the absence of the odour of alcohol and the accused’s denial of alcohol consumption, I find that the evidence before the officeramply meets the “reasonable suspicion” standard, the prerequisite to making the breath demand pursuant to section 254(2).

Issue 2: Did the Crown fail to demonstrate that the s. 254(3) demand at roadside was reasonable given the lack of evidence thatthe officer was trained in the use of the ASD or that he subjectively knew that a failure on the ASD provided the grounds forarrest? [27] An officer need not have anything more than reasonable and probable grounds to believe that a driver committed the offence ofimpaired driving or driving with a BAC exceeding 80 mg of alcohol per 100 ml of blood before making a demand under

section s. 254(3)(R. v. Shepherd, 2009 SCC 35 , [2009] S.C.J. No. 35). [28] When the officer makes the breath demand, he must subjectively and objectively have reasonable and probable grounds to do. In stating his grounds, the officer need not say the “magic words” of the statute that in his opinion, the accused’s ability to operate amotor vehicle was impaired by alcohol or that the accused was operating a motor vehicle with a BAC which exceeded 80 mg of alcoholper 100 ml of blood. The Court may infer from the circumstantial evidence that the officer had the requisite belief. [29] In the present case, Cst.

Degray testified that he would have immediately arrested the accused without the benefit of the readingon the ASD on the facts before him if he had smelled alcohol. He testified that he had the requisite suspicion to proceed with thedemand to provide a sample into the ASD but that he could not rule out a medical issue until he had the results of the ASD testing. [30] Cst. Degray testified that if the accused’s behaviour was as a result of intoxication by alcohol, he wanted to know the “level ofalcohol”.

He conducted a self-test and obtained a “0” reading which was accurate and provided assurances that the device was workingproperly. Upon seeing the accused’s result, the officer arrested the accused for driving with a BAC exceeding 80 mg of alcohol per 100ml of blood. I find that the officer was aware that a fail reading on the ASD provided him with the reasonable and probable grounds

required to affect the arrest and make the section 254(3) demand both because these were the officers’ immediate subsequent actions andbecause the officer demonstrated concern prior to proceeding with the ASD that there could be a medical reason, unrelated to excessivealcohol consumption, which might explain the accused’s behaviour. [31] In this case, Cst. Degray had objectively reasonable grounds to make the demand based on the failure of the ASD test. I alsofind that subjectively, he was aware of this reality. Cst.

Degray was a careful and thoughtful witness who wanted to be certain thatexcessive alcohol was responsible for the accused’s actions before proceeding to the next step in his investigation. I find that Cst.Degray’s actions were constitutionally unobjectionable. Issue 3: Was there a breach of the Applicant’s rights under s. 10(

b) of the Charter when he was not permitted to dial the numberfor duty counsel himself? [32] Counsel argues that the institutional practice of not allowing an accused to dial the number of his counsel of choice and theapplication of this practice to Mr. Day constitutes a breach of the Applicant’s

section 10(

b) rights. [33] The onus is on the Applicant to prove a breach of his Charter rights on a balance of probabilities. Mr. Day did not testify. Hedid not raise any concerns about the advice he received from counsel with anyone, including Cst. Norman who advised Mr. Day a secondtime of his rights to counsel. Mr. Day answered that he had spoken to counsel.

The Applicant did not testify on the voir-dire that hemisunderstood his rights at the time, that he would have wanted to speak to someone else or that the police officers affected his ability toproperly exercise his rights when they did not allow him to dial the number himself. Quite the contrary, I find that when Cst. Normanadvised the Applicant of his rights and Mr. Day told her that he had spoken with a lawyer, he effectively communicated that he wassatisfied. [34] Defence counsel relies on the decision of Justice Burstein in the matter of R. v. Ali, 2018 ONCJ 203 , [2018] O.J.

No.1662 in support of his position, conceding that if this Court finds that there has been a breach of his client’s s. 10(

b) rights on thisargument, that this breach alone would not reasonably lead to the exclusion of Mr. Day’s breath readings. With respect to JusticeBurstein, this court disagrees with his view that affording a detainee the right to receive a telephone call from someone the police havecalled on the detainee’s behalf seems constitutionally suspect. In the case of Mr. Day, given the level of impairment exhibited by theaccused, it seems doubtful to me that the accused could have dialed the number even if it had been given to him. Mr. Day took aninordinate amount of time to explain to Cst.

Norman why he was ill and that he had taken Nyquil. In my view, if police officers leaveaccused’s persons to dial their own numbers in cases such as these, it will inevitably lead to unnecessary delays and, far too often, towrong numbers being dialed and accused persons being denied their right to speak to counsel at all. Mr. Day was significantlyimpaired. Officers did not know at that point that he would register readings in excess of 200 mg of alcohol per 100 ml of blood. He wascooperative but severely intoxicated.

The police practice of dialing the number for an accused and allowing him to receive a telephonecall from someone who the police have called on the detainee’s behalf is entirely appropriate in my view and ultimately leads to a moreeffective exercise of an accused person’s s. 10(

b) Charter rights. [35] Having found that there has been no constitutional infringement in this case, I need not turn to the admissibility question framedby s. 24(2) of the Charter. If I were to be found in error upon review, I would not have excluded the breath samples or the officers’observations as requested, as there was no bad faith or misconduct on the part of the officer, the taking of the breath samples isminimally intrusive and there is a significant public interest in having cases of this nature decided on the merits given the continuednegative effect drinking and driving is having on our society.

Issue 4: Has the Crown established that the accused’s ability to operate a motor vehicle was impaired by alcohol beyond areasonable doubt? [36] The impairment of one’s ability to drive is generally understood as meaning the impairment of one’s judgment and the decreasein one’s physical abilities. Evidence which establishes any degree of impairment of that ability, if proved beyond a reasonable doubt, issufficient to sustain a conviction (R. v. Stellato, (SCC), [1994] S.C.J. No. 51, affg (ON CA), [1993]O.J.

No. 18 (C.A.). [37] The Crown need not show direct evidence of bad driving to prove that the accused’s ability to operate a motor vehicle wasimpaired by alcohol. That being said, I find that the Crown has demonstrated significantly poor operation of a motor vehicle through theevidence of Ms. Trudell who observed the accused slouched down on his seat, passed out, while he was expected to proceed through tothe drive-thru window. The subsequent observations of Cst. Norman included the odour of alcohol on the accused’s breath and that theaccused fell asleep again during the breath testing at the detachment. Both Cst.

Degray and Cst. Norman noted a slowness to theaccused’s behaviour, in his movements as he retrieved his documents and in the time it took him to describe his ailment. Cst. Degraydetected slurred speech. When I consider the totality of the evidence presented relating to impairment by alcohol, I am convincedbeyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol and that the evidence to supportthat conclusion was overwhelming in this case.

Although the accused may very well have also been fatigued, I have no doubt that alcoholwas a contributing factor to the accused’s impairment. [38] The Crown has established the elements of both of these offences beyond a reasonable doubt. There will be a finding of guilt onboth counts.

Released: December 5, 2018 Signed: Justice Diane M. Lahaie