R. v. Wilson, 2011 ONCJ 24

Citation: R. v. Wilson, 2011 ONCJ 24 ONTARIO COURT OF JUSTICE BETWEEN: ) ) Mr. J. LalondeHER MAJESTY THE QUEEN ) for the Crown ) ) — AND — ) ) ) Anita wilson ) Mr. S. May ) for the defendant ) ) ) ) lipson J.: [1] Ms. Wilson has pleaded not guilty to a charge of operate vehicle over 80 mgs. [2] The Crown concedes that there is insufficient evidence to prove beyond a reasonable doubt that Ms. Wilson wasoperating a motor vehicle prior to her arrest.

Instead the prosecution seeks a finding of guilt on the included offence of care or controlover 80 mgs. [3] The issue in this case relates to a Charter application brought by Ms. Wilson to exclude the evidence of her breath testresults. It is submitted that the arresting officer lacked reasonable and probable grounds for her arrest and this resulted in a

section 8Charter violation and that evidence obtained following her arrest, particularly the breath test results, should not be admitted pursuant tosection 24(2) of the Charter. The Crown submits that the arresting officer had reasonable and probable grounds to arrest Ms. Wilson. Inthe alternative, it is submitted that should the court find that there was a breach of Ms. Wilson’s

section 8 Charter right, an application ofthe analytic framework set out by the Supreme Court of Canada in R. v. Grant 2009 SCC 32 , [2009] S.C.J. 32 (S.C.C.) shouldnot lead to the exclusion of the evidence of the breath test results. [4] I would first briefly summarize the evidence in this case. The Crown called one witness, the arresting officer P.C. Meam.No witnesses were called by the defence. On November 20, 2009 P.C. Meam was on general patrol in the city of Ottawa.

At 1:30 a.m. hewas dispatched to Chinatown area of Ottawa to respond to a complaint concerning an intoxicated female driver who was seen “stumblingdown the street” and get into a car which was then seen to “peel off”. The information contained a licence plate number as well as adescription of the car, a silver Saturn. Some seven minutes later P.C. Meam located a Saturn vehicle with the same licence plate numberparked on Somerset Avenue West. The Saturn’s colour was gold, not silver. P.C.

Meam parked his marked police car behind the Saturnand after running the plate number on his computer approached the driver’s side of the vehicle. Ms. Wilson was seated in the driver’sseat. The car was not running. According to P.C. Meam, the defendant appeared to be staring straight ahead, deep in thought. Sheappeared to be unaware of her surroundings. After standing for a few seconds beside the driver’s door, the officer knocked on thewindow to get Ms. Wilson’s attention. Instead of rolling down the driver’s side window, Ms. Wilson opened the car door. The officercould smell alcohol coming from the car.

Her eyes were bloodshot. P.C. Meam requested Ms. Wilson to produce her driver’s licence.She seemed confused and she produced an insurance slip instead. The officer could smell alcohol coming from her breath. He testifiedthat Ms. Wilson seemed to be “staring through me”. After she produced the insurance slip, he again asked for her licence and she saidshe didn’t have it. She verbally identified herself and the officer notices that she slurred or exaggerated the letter “a” in Anita. The officertestified that it was at this point that he formed the grounds to arrest the defendant for impaired operation.

He confirmed her identity onthe police computer and then went back to Ms. Wilson and placed her under arrest. She was asked to hand over her car keys and exit thecar. Ms. Wilson said she didn’t have the keys. The officer asked her how she had driven to that location and she then found her keys onthe passenger seat beside her. On the way to the police cruiser, Ms. Wilson was unsteady on her feet. She seemed to be trying very hardto keep her balance and was swaying side to side. Ms.

Wilson was transported to the central Ottawa police station and eventuallyprovided two samples of her breath at 3:08 a.m. and 3:36 a.m. Her readings were 195 and 186 milligrams of alcohol in 100 millilitres ofblood. [5] In cross examination, P.C. Meam acknowledged that prior to arresting the defendant, he did not employ an approvedscreening device or conduct roadside sobriety tests. P.C. Meam was of the view that the use of those investigative tools was unnecessaryin the circumstances. He came to the opinion that Ms.

Wilson was intoxicated and that her ability to operate a motor vehicle wasimpaired by alcohol after a very brief investigation. [6] As indicated earlier, the issue is whether PC Meam had the requisite grounds to arrest Ms. Wilson. The Crown submitsthat he did.

The defence contends that at most the officer had the grounds to make an approved screening device but not an approvedinstrument demand. [7] Several cases concerning this issue of reasonable and probable grounds were referred to in argument. [8] The relevant legal principles were recently summarized by Durno J., sitting ad hoc, in the Ontario Court of Appeal in R. v.Bush, 2010 ONCA 554 at paras.36-40: Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol in his or

her body, the standard for an Approved Screening Device (roadside) demand pursuant to s. 254(2) of the Criminal Code. At the otherend of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator’s ability to operate a motorvehicle was impaired by the consumption of alcohol or that the driver’s blood alcohol concentration was over the legal limit. Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds.

Section 254(3) of the Criminal Codeauthorizes peace officers to demand Intoxilyzer breath samples provided the officer “has reasonable and probable grounds to believethat a person is committing or at any time within the preceding three hours has committed” the offence of impaired operation or driving‘over 80.’ (emphasis added) Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima facecase: see Censoni at para. 31 and R. v. Shepherd 2009 SCC 35 at para. 23. Reasonable and probable grounds have both a subjective and an objective component.

The subjective component requires the officer tohave an honest belief the suspect committed the offence: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 at para. 51. Theofficer’s belief must be supported by objective facts: R. v. Berlinski, (ON CA), [2001] O.J. No. 377 (C.A.) at para.3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude thatthere were indeed reasonable and probable grounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 at p. 250. In Storrey v.

The Queen, supra at 323, Cory J. articulated the overarching context of drinking/driving investigations - the need forreasonable balance between the individual's rights to liberty and the need for society to be protected from the menace of impaired drivers.Every year, drunk driving leaves a terrible trail of death, injury, and destruction: The Queen v. Bernshaw, supra at 204; Regina v.Saunders (1988), (ON CA), 41 C.C.C. (3d) 532 (Ont.

C.A.) at 537, 539, 541 per Cory J.A. (as he then was). [emphasisadded] In Storrey, Cory J. addressed the importance of the requirement that officers have reasonable grounds as follows at p. 249-250: The importance of this requirement to citizens of a democracy is self-evident. Yet society also needs protection from crime. This needrequires that there be a reasonable balance achieved between the individual's right to liberty and the need for society to be protected [9] The determination of whether reasonable and probable grounds exist is a fact-based exercise dependant on all circumstances in acase.

As well, the court should not lose sight of the fact that police officers in drinking and driving cases are involved in making quickand, hopefully, informed decisions as to whether there are reasonable grounds. [10] In Bush at para. 61, Durno J. reiterates the well-established principle that an officer can rely on hearsay in formingreasonable and probable grounds.

As well, the court recognizes at para. 71 that the length or brevity of the investigation is notdeterminative with this observation: That an opinion of impairment of the ability to operate a motor vehicle can be made in under a minute is neither surprising or unusual. [11] The court also reiterates at para. 60 that if an officer subjectively and objectively has reasonable and probable grounds,there is no requirement that a roadside sample be taken. [12] I am satisfied that P.C. Meam, both subjectively and objectively, had reasonable and probable grounds to arrest Ms. Wilsonfor impaired operation.

Here the officer had information that an intoxicated female was stumbling down the street and getting into a carwhich “peeled off”. I am satisfied that the officer reasonably and correctly believed that Ms. Wilson as that intoxicated female driverdescribed in the dispatch. She was in the driver’s seat of a Saturn with the same licence plate number described in the dispatch. Further Iaccept the uncontradicted evidence of P.C. Meam that he made a number of observations of Ms.

Wilson that, when consideredcumulatively, reasonably led him to conclude that the defendant’s ability to operate a motor vehicle was impaired by the consumption ofalcohol. In addition to the hearsay information, Ms. Wilson smelled of alcohol, had bloodshot eyes. Initially she appeared to the officer tobe unaware of her surroundings. During the brief investigation, she appeared confused and disoriented. There was some slurring whenshe identified herself. Instead of rolling down her window to speak to the officer, she opened the car door.

She produced an insuranceslip when she was asked to produce her driver’s licence. [13] I am not persuaded that there was a

section 8 Charter breach in this case. The application is dismissed on that basis. [14] Even if it could be said that the officer fell slightly short of having reasonable and probable grounds at the time of the arrestand that a

section 8 violation had taken place in this case, I would not exclude the evidence of the breath results pursuant to section24(2). I note that immediately following the arrest, Ms. Wilson displayed further indicia of impairment such as confusion about whereher car keys were and was unsteady on her feet before she was placed in the police cruiser. In other words, if the officer’s grounds fellshort of the requisite standard at the moment of arrest, any doubt on the issue would have been put to rest in the moments immediatelyfollowing her arrest. If there was a breach here, it was not, in my view, serious.

This is not a case where an arrest was made on speciousor flimsy evidence leading to an unjustified interference with the liberty of the accused. I am satisfied that the arresting officer acted ingood faith and was not being careless when he arrested Ms. Wilson without resort to the ASD or roadside sobriety testing. Anassessment of the three groups of factors in the Grant analysis weigh against excluding the evidence in this case. [15] I am satisfied beyond a reasonable doubt on the evidence that prior to her arrest, Ms. Wilson was in care or control of hercar.

She also had in excess of the legal limit of alcohol in her system. She is found guilty. Released: January 13, 2011 Justice T. Lipson