R. v. Sidie, 2017 ONCJ 283

ONTARIO COURT OF JUSTICE CITATION: R. v. Sidie, 2017 ONCJ 283 DATE: 2017·04·25 COURT FILE No.: Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — Robyn Sidie Before Justice R. Bigelow Heard on October 11, 12, 13, 2016; February 27, 28, 2017 Reasons for Judgment released on April 25, 2017 Ms. M. Goldenberg ................................................................................. counsel for the Crown Ms. K.

Schofield ............................................................................... counsel for the defendant Contents Basic Non-Controversial Facts . 2 Positions Of The Parties . 2 On the Charter Application . 3 On the Merits . 3 Validity Of The DRE Demand . 3 The Evidence . 3 Charter

Section 10(a) 5

Section 9 . 6 Section 24(2) 6 Seriousness of the Charter Breaches . 6 Impact on the Accused’s Charter protected Rights . 7 Societies Interest in a Trial on the Merits . 7 Ruling of Charter Application . 7 The Merits . 7

Bigelow J.: [ 1 ] Ms. Sidie is charged that: on or about the 3 rd day of February in the year 2012, in the city of Toronto, Toronto Region, while her ability to operate a motor vehicle was impaired by drugs, did have the care and control of a motor vehicle, contrary to the Criminal Code . Basic Non-Controversial Facts [ 2 ] The basic non-controversial facts are that on 3 February 2012 at approximately 11 PM an auxiliary police officer noticed Ms. Sidie was in a motor vehicle in a live lane of King Street in the city of Toronto stopped with her head leaning on the steering wheel of the vehicle.

He approached the vehicle, knocked on the window and after getting Ms. Sidie’s attention he asked her to move the vehicle to the curb which she did and then asked her to get out of her vehicle. Shortly thereafter other officers arrived on scene and took over the investigation. One of those officers dealt with a child who was in the rear of the motor vehicle and the other had a conversation with Ms. Sidie.

That officer eventually made an SFST demand (section 254(2)(a)) and later turned her over to a qualified SFST officer who made a further SFST demand and at the conclusion of the SFST he made a demand that she submit to an drug recognition evaluation (DRE) by an evaluating officer (section 254(3.1)). At the conclusion of that evaluation, the evaluating officer was of the opinion that Ms. Sidie was impaired by a “narcotic analgesic” and made a demand that she provide a urine sample (section 254(3.4)(a)).

That sample was analysed by the Centre for Forensic Sciences and found to contain: Methadone, Cocaine, Benzoylecgonine, Levamisole, Temazepam, Oxazepam, Methamphetamine and Amphetamine [ 3 ] However, an expert from the Centre for Forensic Sciences was unable to indicate when those substances may have been ingested or whether they had any effect on Ms. Sidie at the time that she was in care and control of her car. Positions Of The Parties [ 4 ] Counsel on behalf of Ms.

Sidie has brought an application for the exclusion from evidence of the results of the DRE as well as the results of the analysis of a urine sample provided by Ms. Sidie based on alleged violations of her client’s rights under sections 8 , 9 and 10(

a) of the Canadian Charter of Rights and Freedoms . [ 5 ] Both parties are in agreement that, with respect to the alleged breach of

section 8, since the SFTS, DRE and the urine sample demands constituted warrantless searches the onus is upon the Crown to establish that the searches were reasonable on a balance of probabilities and with respect to the alleged breaches of

section 9 and 10 (

a) the burden is on the applicant to establish that her rights were infringed. On the Charter Application [ 6 ] Although counsel for Ms. Sidie concedes that the SFST demand was lawful, she submits that the DRE demand was not lawful in that the officer making the demand did not have objectively reasonable grounds for the making the demand and that all evidence obtained subsequent to that demand should be excluded. [ 7 ] Crown counsel submits that there was no breach of any Charter provisions and further that, if the court finds that any such breach occurred, nevertheless the evidence should be admitted.

On the Merits [ 8 ] Counsel for Ms. Sidie submits that even if the evidence of the results of the DRE and the urine sample are admitted into evidence nevertheless the Crown has not established impairment beyond a reasonable doubt. The Crown on the other hand submits that the case has been proven beyond a reasonable doubt. Validity Of The DRE Demand [ 9 ] Section 254(3.1) of the Criminal Code provides that: If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1) (

a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle ….is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose. [ 10 ] Therefore, the officer making the demand of Ms.

Sidie must have “reasonable grounds to believe” that she was operating a motor vehicle while impaired by a drug or combination of alcohol and a drug and the test for determining whether the officer had reasonable grounds has both an objective and subjective component.

The Evidence [ 11 ] Officer Mugford stated that he had been trained and qualified to perform SFST in 2011 and that this was the 3 rd time that he conducted such a test. A SFST test consists of the following tests: (

a) the horizontal gaze nystagmus test; (

b) the walk-and-turn test; and (

c) the one-leg stand test. [ 12 ] The officer stated that he observed horizontal gaze nystagmus and that it was: …the most pronounced I’ve seen. They [her eyes] were jerking far to the right and back to the centre again. So, at that point I believe she had horizontal gaze nystagmus. So I didn’t go through the whole battery of the tests I just stopped there and said, “it’s present,” and I left it. [ 13 ] On the walk and turn test he stated: I don’t know if there is a main complaint.

I mean, there is the, she uses her arms throughout as balance, and those are supposed to be stiff at your side; she stopped walking once instead of continuing the heel to toe; she stepped off the line that she was walking, she stepped left and right off of it; and then, I guess the main complaint was the turn, that it wasn’t done as I showed it was done. [ 14 ] In cross-examination the officer was asked if he had examined the roadway where Ms. Sidie had stepped off the line stated that he did not know. He also could not recall if he had used a flashlight when examining Ms.

Sidie’s eyes for nystagmus. [ 15 ] With respect to the one leg stand test he indicated that she put her foot down twice extended her arms contrary to instruction. [ 16 ] He did not have a detailed recollection of the training he took to become qualified to give the SFST at the time of trial nor was he able to state how he applied his training to his analysis of the results of the tests. [ 17 ] I have a number of concerns with respect to the reliability of the officer’s evidence including the following: • His evidence with respect to Ms.

Sidie pacing in an exaggerated manner is not supported by the evidence of the 2 officers or the auxiliary officer who observed Ms. Sidie. • His evidence that Ms. Sidie’s pupils were dilated, although supported by Officer Forcillo is contradicted by the evidence of the DRE officer who found them to be constricted when he examined them roughly 1 ½ hours later. • His evidence both that Ms. Sidie did not complain of the cold or express concern about performing the tests in 4 inch high heels is in conflict with Ms.

Sidie’s evidence as well as inconsistent with the admitted fact that she complained of both the cold and the problems with the shoes immediately upon being placed in the scout car where her comments were recorded.

It also seems contrary to common sense that an individual outside for up to ½ hour without a coat on a cold February night would not be effected by the cold. • His failure to give any consideration to the impact that the cold may have on her ability to perform the tests as well as the lack of evidence on what effect the uneven and cracked pavement may have had on her ability to perform the tests raises concerns about the weight that can be reasonably attached to the test results. • His evidence with respect to observing the worst horizontal nystagmus he had ever seen cannot be given much weight given that this was only his 3 rd SFST.

Additionally, the DRE officer directly contradicted his evidence when he indicated that: Well as I stated in my evidence in chief, there wasn’t any horizontal gaze nystagmus. There was no nystagmus at, there is no distinct and sustained nystagmus at maximum deviation. There was no angle of onset nystagmus. • His evidence with respect to Ms. Sidie chewing her lip constantly was not supported by the evidence of any of the other officers who gave evidence. • He relied upon information that Ms.

Sidie “behind the wheel of a car passed out” but only recorded in his notebook that he received information that she “was possibly impaired by drugs.” There is nothing in his notes with respect to her being passed out and the officer who provided him with background information indicated that she was being detained for falling asleep behind the wheel which is substantially different from passing out. [ 18 ] Given my concerns about the reliability of the evidence of the officer who made the DRE demand I find that I am not satisfied that the Crown has meet its onus to establish that the DRE demand was lawful and therefore it constituted a breach of

section 8 of the Charter . Charter

Section 10(a) [ 19 ]

Section 10(

a) of the Charter provides that “everyone has the right on arrest or detention to be informed promptly of the reasons therefor.” [ 20 ] Counsel for Ms. Sidie submits that her client was detained as soon as the auxiliary officer directed her to get out of her car

and that she was not informed of the reasons for her detention until Officer Forcillo made the SFST demand. Crown counsel submits that it was obvious to Ms. Sidie why she was being detained and nothing further was required. [ 21 ] The Supreme Court of Canada has stated with respect to

section 10 (

a) that: When considering whether there has been a breach of s. 10 (

a) of the Charter , it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10 ( b ). [1] [ 22 ] I take no issue with the fact that the court must consider all the circumstances including what was obvious to the detainee. However, in this situation Ms.

Sidie was given no information with respect to the reasons for her detention. Ms. Sidie stated in her evidence that she had no idea she was being investigated for impaired driving until the SFST demand was made which evidence I accept. In all of the circumstances I am satisfied that Ms. Sidie

section 10(

a) rights were violated in that she was not provided with sufficient information to make reasonable decision with respect to her situation.

Section 9 [ 23 ] Ms. Schofield submits that the detention of her client became illegal at the time that DRE demand was made in that the since the demand was not legal the continued detention of her client was unlawful. I agree. Section 24(2) Seriousness of the Charter Breaches [ 24 ] In my view the Charter breaches are serious. The Criminal Code gives police officers powers to detain individuals but also prescribes the situations where that power can be used.

To detain any individual, require them to perform physical tests and provide urine samples is a serious intrusion upon their rights to be free from state interference without reasonable cause. [ 25 ] The breach here is exacerbated by the attitude of the officers involved to a woman standing outside without a coat on a February night with one of the officers indicating he “wasn’t interested in whether she was cold”. [ 26 ] In my view the seriousness of the breach supports the exclusion of the evidence.

Impact on the Accused’s Charter protected Rights [ 27 ] In my view the facts establish a pattern of breach of rights. A review of all of the evidence supports a finding that the police made a decision upon first seeing Ms. Sidie that she was a drug addict based on little or no reliable data (the scars on her face were “meth face”, chewing one’s lip meant one was using drugs) and treated her accordingly. [ 28 ] In my view this factor also supports exclusion of the evidence.

Societies Interest in a Trial on the Merits [ 29 ] There is no question that society has a substantial interest in trial on the merits of allegation of impaired driving given the carnage on the roads caused by impaired drivers. Clearly this factor would support inclusion of the evidence. Ruling of Charter Application [ 30 ] Balancing the Grant factors and looking at the long term impact on the public confidence in the justice system, I find that the evidence obtained as a result of the DRE demand should be excluded from evidence.

The Merits [ 31 ] Based on the admissible evidence has the Crown proven the offence beyond a reasonable doubt? [ 32 ] As indicated above I have significant concerns about the reliability of the evidence of the Officer Mugford. I have similar concerns about the evidence of officer Forcillo. He decided almost immediately upon seeing Ms. Sidie that she was a drug addict based on her “meth face” and failed to take into account anything which might contradict his assumption, a perfect case of tunnel vision. [ 33 ] Although I have some concerns about portions of Ms.

Sidie’s evidence I do not reject her evidence with respect to her explanations for the behaviour noted by the auxiliary police officer and Officer Mota.

[ 34 ] Accordingly I find that the Crown has not proven beyond a reasonable doubt on the admissible evidence that Ms. Sidie was impaired by a drug at the time she was in care and control of her car on the date in question and dismiss the charge. Released: April 25, 2017 Signed: “Justice R. Bigelow”