R. v. Vladar, 2017 ONCJ 270

CITATION: R. v. Vladar , 2017 ONCJ 270 DATE: March 10, 2017 Information No. 15-13350 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. ANDREW VLADAR R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE J. STRIBOPOULOS on March 10, 2017, at BRAMPTON, Ontario

Legend [sic] indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) indicates preceding word has been spelled phonetically. APPEARANCES : H. Gluzman Counsel for the Crown R. Wulkan Counsel for Andrew Vladar ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S WITNESSES WITNESS : Examination In-Chief Cross- examination Re- examination EXHIBITS EXHIBIT NUMBER ENTERED ON PAGE Reasons for Judgment .................................. Page 1 Transcript Ordered: .......................... March 13, 2017 Transcript Completed: ........................ April 2, 2017

Sent for Judicial Review: .................... April 2, 2017 Ordering Party Notified: ..................... FRIDAY, MARCH 10, 2017 R E A S O N S F O R J U D G M E N T Stribopoulos, J. (Orally): The defendant, Andrew Vladar, is charged with two offences. It is alleged that on the evening of October 14 th , 2015, he operated a motor vehicle while his ability to do so was impaired by alcohol, and further, that his blood alcohol concentration was over the legal limit at the time. In deciding this case, I am required to address four issues.

First, whether or not the arresting officer, Constable Newark, had the required grounds to arrest Mr. Vladar for impaired driving. If he did, then the arrest and subsequent breath demands were lawful and Charter compliant. If he did not, then the arrest and taking of breath samples violated Mr. Vladar’s rights, respectively his

section 9 and

section 8 Charter rights. Second, if a constitutional violation is made out, I must next address whether or not any evidence that was obtained in a manner that violated Mr. Vladar’s Charter rights should be excluded under section 24(2). Third, if no Charter violation is made out or if the evidence is nevertheless admitted, I must go on to address whether or not the Crown has proven the charge of operating a motor vehicle with a blood alcohol level in excess of the legal limit.

This essentially turns on whether or not the Crown is entitled to rely on the presumption of identity -- found in subsection 258(1)(c) -- in the circumstances of this case. Lastly, I must also address whether or not the Crown has proven the charge of impaired operation beyond a reasonable doubt. I will address each of these issues in turn, with reference to the relevant evidence as it relates to each. I therefore begin with whether or not Constable Newark had reasonable and probable grounds to arrest Mr. Vladar for impaired driving and demand breath samples from him.

In terms of explaining his decision to arrest Mr. Vladar on the night in question, Constable Newark made reference to a number of different factors. First, he was responding to a radio call that was precipitated by a motorist who called 911 concerning a suspected impaired driver. That motorist described a vehicle that matched the vehicle driven by Mr. Vladar, both in terms of his vehicle’s make and model. Second, the motorist advised that the suspect vehicle exited Highway 410 at Steeles Avenue. The radio call came through at 10:44 p.m. Within a few minutes of that call, Constable Newark encountered Mr.

Vladar’s vehicle a couple of kilometres west of Highway 410, travelling westbound on Steeles Avenue, and therefore away from Highway 410. As a result, not only did Mr. Vladar’s vehicle match

the make and model of the vehicle referenced by the caller, the timing and the location supported an inference that they were the same vehicle. (At this point I note parenthetically that Constable Newark testified that Mr. Vladar’s vehicle also had the same license plate number as that supplied by the caller. However, the only person who apparently called 911 that evening about the suspect vehicle, Ms. Demes, gave evidence that she never managed to take down the license plate for the vehicle she observed.) Third, Constable Newark testified regarding some bad driving that he observed on the part of Mr. Vladar.

He gave evidence that as he approached Mr. Vladar’s vehicle he saw him: “swerving all over the place”. This necessitated that other vehicles steer away from his vehicle in order to avoid a collision. This was followed by some apparent confusion by Mr. Vladar, who stopped at a signal in front of the Shoppers World plaza that was only directed at buses. Mr. Vladar, seeming to realize his error, then proceeded to the actual intersection where the light was red and he came to a stop. Fourth, Constable Newark testified that while Mr.

Vladar was stopped at the red light, in the curb lane, he pulled up behind his vehicle, engaged both the lights and the sirens on his fully-marked police cruiser, and then exited his cruiser to approach Mr. Vladar and speak to him. He testified that he and Mr. Vladar made eye-contact in the driver's side rear-view mirror of Mr. Vladar’s vehicle, as Constable Newark was approaching. At that point, despite having a marked police cruiser immediately behind him, with its lights engaged, and a police officer only steps away from his window, Constable Newark testified that Mr.

Vladar inexplicably proceeded to make a right turn into the Shoppers World plaza, driving deep into the parking lot before stopping. During questioning later inside the breath room, Mr. Vladar confirmed this had taken place, but explained his behavior as motivated out of concern for the officer. His comment suggested that he thought it would be safer for the officer to deal with him in the parking lot. Constable Newark did not see the matter that way, thinking it inappropriate and unsafe for Mr. Vladar to drive away in the circumstances.

Fifth, Constable Newark also cited the observations he made once he approached Mr. Vladar and began to deal with him in explaining his reason for arresting him. He testified that as he approached the driver's side door of Mr. Vladar’s vehicle, Mr. Vladar opened the door and had one leg off the seat as though he was about to exit the vehicle. Just as the officer arrived at the driver’s side door Mr. Vladar said to him: “What’s going on?” With this, the officer testified that he immediately detected a strong odour of an alcoholic beverage emanating from Mr. Vladar’s breath. Mr.

Vladar had turned the vehicle off and had the keys to the vehicle in his hand, which Constable Newark took from him for safety reasons. According to Constable Newark, Mr. Vladar’s speech was slurred, and his eyes were bloodshot, watery, and red-rimmed. At this point, with Mr. Vladar half in and half out of the Yukon, Constable Newark testified he placed him under arrest for impaired driving. Lastly, during the very late stages of cross-examination, when pressed as to the reasons for the arrest, Constable Newark suggested in terms that were, frankly, difficult to follow, that there was also something about Mr.

Vladar’s movements while still inside his vehicle that also somehow contributed to his grounds for arrest. I note that Constable Newark did not mention this to Constable Halfyard, the qualified technician, when relaying his grounds for arrest to him back at the police division. Further, he also described the sequence somewhat differently to Constable Halfyard, explaining that Mr. Vladar exited the vehicle and then stumbled before he decided to arrest him.

Ultimately, Constable Newark maintained that it was the collection of all these things, the bad driving and the various observations that he made virtually simultaneously as he began to actually interact with Mr. Vladar once he was stopped, including the slurred speech, the odour of alcohol, the red-rimmed and glassy eyes, and his physical movements inside the cabin of the vehicle, that caused him to carry out an arrest for impaired driving. Constable Newark also testified regarding his dealings with Mr. Vladar following his arrest. He testified that Mr.

Vladar was unsteady on his feet as he exited his vehicle and as he accompanied him back to the police cruiser. During cross-examination Constable Newark described the level of unsteadiness he observed as “extreme” and suggested that, at least at one point, as he moved from his own vehicle back to the police cruiser, Mr. Vladar almost completely fell to the ground and needed to be assisted by the officer. However, in the notes he made regarding his investigation Constable Newark had recorded: “Male fell and was extremely uneasy on foot while exiting vehicle”.

During cross-examination Constable Newark elaborated, explaining: “the stumbling and the falling is two terminologies that the -- while exiting the vehicle it -- I guess you could say he stumbled out of the vehicle, while getting off of the seat and then fell and then proceeded over to the cruiser while I was assisting him to stand straight at the times that he obviously needed it.” He testified that Mr. Vladar was “all over the place” as he walked him back to his police cruiser.

I turn to a consideration of the question immediately before me; did Constable Newark have reasonable and probably grounds to arrest Mr. Vladar for impaired driving? On behalf of Mr. Vladar defence counsel, Mr. Starkman, argues that I should reject Constable Newark’s evidence and find that both the arrest and the taking of the breath samples were unlawful and violated Mr. Vladar’s Charter rights. In taking this position, Mr. Starkman advances a number of arguments in support of his claim that Constable Newark’s testimony is not credible. First, Mr. Starkman contends that Constable Newark’s testimony that Mr.

Vladar was unsteady on his feet as he was walking once they were back at the police division, and swaying at other points in time, is simply not supported by the video evidence. The video recordings that became exhibits at trial capture all of Mr. Vladar’s movements at police division on the night in question. Mr. Starkman argues that the video evidence flatly contradicts Constable Newark, and that his insistence, at points, that the recordings show unsteadiness and swaying, when they do not, undermines his credibility as a witness. Second, Mr.

Starkman points to some apparent inconsistencies in Constable Newark’s account. For example, Constable Newark had recorded in his notes that Mr. Vladar had found the situation funny at the roadside, but he did not repeat this in his testimony. Rather, he testified that Mr. Vladar’s reaction in that regard was limited to when they were back at the police division. Another example involves an apparent inconsistency between Constable Newark’s notes and the information he supplied to Constable Halfyard. Constable Halfyard testified that when relaying his grounds Constable Newark told him that Mr.

Vladar had almost hit another vehicle when he pulled into the parking lot. In contrast, Constable Newark testified that Mr. Vladar did not nearly hit another vehicle inside the parking lot; he maintained that this happened out on the roadway when other motorists had to steer clear of Mr. Vladar to avoid a collision. Third, Mr. Starkman argues that Constable Newark’s late-breaking reference to something peculiar about Mr. Vladar’s movements inside the cabin of the vehicle, before his arrest, should be concerning.

He notes that Constable Newark did not mention this to Constable Halfyard when outlining his grounds to him on the night in question, did not make any notation about these observations, and said nothing about this during his direct testimony. Finally, Mr. Starkman argues that Constable Newark’s characterization of Mr. Vladar’s reaction inside the breath room to the mention of another case involving an impaired driver who killed four people was simply unfair and inaccurate. Contrary to Constable Newark’s evidence, Mr. Starkman argues the breath room video betrays Mr.

Vladar did not laugh when the other case was mentioned, but became angry at being compared to an impaired driver who had caused four fatalities. Given all of this, Mr. Starkman contends that Constable Newark is simply not a credible or reliable witness. As a result, he submits that I cannot safely rely upon his testimony. Without his evidence there is an absence of reasonable and probable grounds to justify Mr. Vladar’s arrest and the seizure of his breath samples.

I have carefully considered Constable Newark’s evidence in light of all of the other evidence heard at trial, including the video recordings from inside the police division and the breath room video. There are indeed a few instances where video recordings showing Mr. Vladar’s movements inside the police division were played during the trial and that Constable Newark testified demonstrated unsteadiness where I frankly did not see what the officer claimed to observe. That said, on my viewing of the same videos there are at least a few instances when Mr.

Vladar seems less than sure footed and his gait appears somewhat unnatural, even sluggish. Similarly, there are points in time when Mr. Vladar is standing before the booking desk when he is noticeably swaying, albeit to a slight degree, and not nearly to the extent that Constable Newark seemed to suggest. The other concerns raised by Mr. Starkman in argument regarding Constable Newark’s evidence are also fair. Nevertheless, each is also consistent with an honest witness remembering and then testifying about events somewhat differently than how those events were memorialized nearly 14 months earlier.

In that regard, I am not of the view that any of the inconsistencies, either alone or cumulatively, are of such a magnitude as to prove fatal to Constable Newark’s credibility. Finally, I am disinclined to view Constable Newark’s characterization of Mr. Vladar’s behaviour in the breath room as misleading. I

have carefully reviewed Constable Newark’s testimony as it relates to this issue -- see the transcript from December 20 th , 2016, from pages 82 to 84. That

section of the transcript betrays what was apparent at several points during his evidence; Constable Newark is not an especially articulate witness. Constable Newark struggled to precisely explain why Mr. Vladar’s behaviour in the breath room struck him as odd. In my view, it is that struggle rather than an effort to mislead which is apparent on a fair reading of his evidence. Nevertheless, the combined effect of the various shortcomings relating to Constable Newark’s testimony although not fatal to his credibility are reason, in my view, to approach his evidence with some degree of caution.

That said, any concerns that I might otherwise have regarding Constable Newark’s testimony are assuaged by the existence of corroborative evidence with respect to the key observations he makes in support of the existence of reasonable and probable grounds. First, there’s Mr. Vladar’s bad driving. This is corroborated by two sources, Ms. Demes and Mr. Vladar. Given that the vehicle Ms. Demes described matched Mr. Vladar’s both in terms of model and colour, and was closely connected in terms of geographic and temporal proximity, I think it more likely than not that it was Mr.

Vladar who she observed driving at a high speed and all over the road while travelling northbound on Highway 410. Further, Mr. Vladar confirmed through comments he made inside the breath room that he drove off into the Shoppers World plaza even though he saw Constable Newark walking up to his vehicle. Second, there is Mr. Vladar’s speech. It will be recalled that Constable Newark described it as slurred. I must confess that when the breath room video was played in open court the acoustics of the speaker used in court made the words spoken by everyone in the room difficult to hear.

However, outside of court I watched and listened to the breath room video with the benefit of a headset and the audio was much clearer. As a result, I share the view that, at least at a few points, Mr. Vladar’s speech sounded a bit slurred. I note that Constable Halfyard, who impressed me as a careful and candid witness, expressed the same opinion. Third, Constable Newark testified that at the roadside he noted that there was a strong odour of alcohol on Mr. Vladar’s breath and that his eyes were bloodshot, watery, and red-rimmed. On these key points Constable Halfyard gave similar evidence.

He testified that he detected a strong odour of alcohol on Mr. Vladar’s breath, that his face was flush, and that his eyes were bloodshot and watery. When I consider Constable Newark’s evidence together with all the other evidence I am satisfied on a balance of probabilities that he arrested Mr. Vladar for impaired driving because of the combination of: • his very poor driving as described by Ms. Demes, and as observed by Constable Newark; • his slurred speech; • a strong odour of alcohol on his breath; and • his bloodshot, watery, and red-rimmed eyes.

I also accept that within moments of the arrest, as he was exiting his vehicle and being accompanied back to the police cruiser, Mr. Vladar exhibited at least some unsteadiness on his feet. I am mindful of the requirements of the reasonable and probable grounds standard as it applies in this context. See R. v. Bush (2010), 101 0.R.(3d)641 at paragraphs 46 to 48 (C.A). In short, “The test is whether, objectively, there are reasonable and probable grounds to believe the suspect’s ability to drive was even slightly impaired by the consumption of alcohol.” Bush at paragraph 48.

Based on all of the evidence I am satisfied that when Constable Newark arrested Mr. Vladar for impaired driving he had the required grounds to do so. It therefore follows that the police had the authority to demand that Mr. Vladar furnish samples of his breath for analysis by an approved instrument. As a result, I have concluded that Mr. Vladar’s Charter rights were not violated in this case. Given this conclusion, it is unnecessary to consider the exclusion of evidence under section 24(2).

This brings me to the third live issue in this case, whether or not the Crown has proven the charge of operating a vehicle with a blood alcohol level in excess of the legal limit. This depends on whether or not the Crown has established the necessary preconditions to rely on the presumption of identity found in section 258(1)(

c) of the Code .

In this case, Mr. Vladar was stopped by Constable Newark at 10:47 p.m. Less than one hour later, at 11:41 p.m., Mr. Vladar provided his first breath sample, which registered a reading of 213 milligrams of alcohol in 100 millilitres of blood. A second breath sample was taken at 12:03 a.m., it registered a reading of 247 milligrams of alcohol in 100 millilitres of blood. The qualified breath technician, Constable Halfyard, testified that the training he received from the Centre for Forensic Sciences required that the truncated breath sample reading should be within 20 milligrams of one another.

Upon truncation, the first two samples taken from Mr. Vladar were, respectively, 210 and 240 milligrams of alcohol per 100 millilitres of blood. Given this variation, in light of his training, Constable Halfyard testified that he decided to obtain a further breath sample from Mr. Vladar. A third sample was obtained at 12:27 a.m. and it registered a reading of 221 milligrams of alcohol in 100 millilitres of blood. Pursuant to section 258(1) (

g) of the Criminal Code , Constable Halfyard prepared a Certificate of a Qualified Technician, which sets out the truncated breath testing results from the first and third tests, reflecting a BAC of 210, and 220 respectively. That certificate was entered as an exhibit at trial, subject to the Charter application that I have now dismissed. Constable Halfyard also gave evidence to explain the reason for the significant variation between the blood alcohol concentration registered for the second breath sample as compared to the first and third samples. He testified that given Mr.

Vladar’s level of impairment he appeared to struggle to provide a suitable sample in the first and third occasions, although he ultimately managed to do so with both. In Constable Halfyard’s opinion, Mr. Vladar blew hardest and longest with respect to the second sample and it therefore contained the truest reflection of his blood alcohol concentration because it would have captured the air deep in his lungs. On behalf of Mr. Vladar, Mr. Starkman argued that the variation in the breath test results was reason for concern.

He argues that given Constable Halfyard’s training, that the different breath test results should be within 20 milligrams of alcohol per 100 millilitres of blood, it follows that any variation greater than that gives rise to a reasonable doubt regarding whether or not the approved instrument was functioning properly. In light of that, he argues that the Crown is not entitled to rely upon the presumption of identity found in subsection 258(1) (c). In this case, the qualified technician, Constable Halfyard, gave evidence regarding the operation of the approved instrument on the evening in question.

He testified that it passed a series of diagnostic checks at 11:06 p.m. This was followed by a calibration check at 11:07 p.m., for which the approved instrument also registered a pass. Finally, Constable Halfyard furnished a sample of his own breath into the approved instrument and his sample registered a zero. He testified that this was indicative of a pass, given that he had not been drinking alcohol on the night in question.

Finally, as noted, Constable Halfyard gave opinion evidence that served to explain the reason for the significant variation between the breath testing results as between the first and third samples, as compared to the second sample. That explanation was corroborated by the video recording from the breath room, which confirms that Mr. Vladar appeared to blow longest and hardest with respect to the second breath sample that he provided. I therefore accept Constable Halfyard’s evidence on this point.

Based on all of the evidence, I am satisfied beyond a reasonable doubt that the approved instrument was operating properly on the evening in question, and I am also satisfied that there was no unreasonable delay in the administration of the breath test in this case. Therefore, the Crown is entitled to rely on the presumption of identity. With the benefit of that presumption, I am satisfied beyond a reasonable doubt that Mr. Vladar was operating a motor vehicle with a blood alcohol concentration in excess of the legal limit on October 14 th , 2015. He is therefore found guilty of that offence.

What remains is whether or not the Crown has proven the charge of impaired operation beyond a reasonable doubt. I must decide whether the evidence establishes to that standard that Mr. Vladar’s ability to operate his vehicle was impaired by alcohol. The Court of Appeal has explained that, “If the evidence of impairment established is any degree of impairment ranging from slight to great, the

offence has been made out.” R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 at 384 (Ont. C.A.), aff'd (SCC), [1994] 2 S.C.R. 478n. Obviously, the very same evidence that served to furnish Constable Newark with reasonable and probable grounds to arrest Mr. Vladarfor impaired driving also supports the Crown’s case with respect to that charge. I have already reviewed that evidence in detail and Itherefore do not intend to repeat it. Beyond that, there is also the recording from inside the breath room.

Having watched the breath room video twice, I share the viewexpressed by both Constable’s Newark and Halfyard that there were notable peculiarities in terms of Mr. Vladar’s attitude anddemeanour inside the breath room. It is clear that both officers struggled to fairly articulate precisely why it was his behaviour hadstruck them as odd. Nevertheless, I share their impression. Mr. Vladar was talkative and overly friendly in the breath room. Hisreaction when the tragedy of a recent impaired driving case involving four fatalities was raised seemed unwarranted and overlyemotional, punctuated by anger and profanity.

Further, when questioned in the breath room, Mr. Vladar repeatedly struggled to recall where he had been coming from on the night inquestion, the route he had travelled, where he was stopped, or to provide an estimate of the time of night. In

summary, the recording from the breath room supports an inference that Mr. Vladar was suffering from the effects of alcoholimpairment on the night in question. When I consider all of the evidence together, the testimony of Ms. Demes, Constable Newark, Constable Halfyard, and the breath roomvideo, I am satisfied beyond a reasonable doubt that Mr. Vladar operated his motor vehicle on October 14, 2015 at a point in time whenhis ability to do so was impaired by alcohol. Accordingly, Mr. Vladar is found guilty of both offences.

FORM 2 Certificate of Transcript Evidence Act, Subsection 5(2) I, Wendy Ponka, certify that this document is a true and accurate transcription of the recording of R. v. Andrew Vladar in the OntarioCourt of Justice held at 7755 Hurontario Street, Brampton, Ontario taken from Recording 3111_303_20170310_091814__30_STRIBOJ,which has been certified in Form 1. Date: April 24, 2017 ____________________Electronic Transcript Signed Digitally April 24, 2017

Wendy Ponka, COA, CVR, ICDR, ICDT, CVR, CLR, CSU, ACT (Commissioner of Oaths, Certified Verbatim Reporter, Internationally Certified Digital Reporter, Internationally Certified Digital Transcriptionist, Certified LiveNote Reporter, Certified SpeechCAT User, Authorized Court Transcriptionist #5076574572)