2017 QCCQ 16226, 2017 QCCQ 16226

R. c. Visitor 2017 QCCQ 16226 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI TOWN OF VAL-D’OR Criminal and penal division No: 615-01-021273-134 DATE: March 22, 2017 ______________________________________________________________________ BY THE HONOURABLE LUCILLE CHABOT, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN COMPLAINANT v. PHILIP VISITOR ACCUSED ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr.

Visitor is accused of the following offences : 1. On or about April 12, 2013, in Val-d’Or, district of Abitibi, did operate a motor vehicle, having consumed alcohol in such a quantity that the proportion thereof in his blood exceeded 80 milligrams of alcohol in 100 milliliters of blood, committing thereby the offence punishable on

summary conviction provided by sections 253

(1) b) and 255(1) of the Criminal Code . 2. On or about April 12, 2013, in Val-d’Or, district of Abitibi, did operate a motor vehicle, while his ability to drive a motor vehicle was impaired by alcohol or a drug, committing thereby the offence punishable on

summary conviction provided by sections 253(1)

a) and 255(1) of the Criminal Code . [ 2 ] The defence presents a motion under the Canadian Charter of Rights and Freedoms that alleges infringements pursuant to sections 8, 9, 10a) and 10b) of the said Charter . The defence asks that all elements of evidence obtained after the accused’s arrest be excluded under section 24(2) of the Charter . [ 3 ] The Court proceeded first with the constitutional voir dire . Two police officers testified for the prosecution and Mr. Visitor took the stand on this motion.

The parties agreed that the evidence tendered by the prosecution will also be the whole evidence for the trial itself. The Court was also informed that if the motion under the Charter is denied, there will be no evidence to offer for the defence. [ 4 ] On April 12, 2013, around 3:00 a.m., officers Tanguay and Boisvert were patrolling downtown Val-d’Or to detect impaired drivers. [ 5 ] They were heading west on 2 nd Avenue when they noticed a black pick-up truck near the Pub restaurant which is adjacent to Mitto public parking lot. [ 6 ] They crossed the accused’s vehicle. The two drivers, officer Tanguay and Mr.

Visitor, looked at each other. Officer Tanguay identified Mr. Visitor as the driver of the pick-up truck. [ 7 ] The officers saw the pick-up back up and park. Nothing special was noticed in the way the manoeuvre was done. The vehicle was correctly parked between the lines. [ 8 ] The driver got out and went to meet with another individual. [ 9 ] At first, the officers were under the impression that the pick-up was about to leave the parking on 2 nd Avenue. They assumed that the driver changed his mind when he saw the police cruiser.

Tanguay says that, at that time of the night, vehicles usually leave the parking lot so they found it suspicious [1] . [ 10 ] The officers decided to go meet Mr. Visitor, wanting to ask him some questions and verify what was going on. [ 11 ] The very first question was if he had consumed any beers during the evening [2] . Tanguay had to repeat the question many times because he had difficulty understanding Mr. Visitor as he had a hard time pronouncing his words [3] . At that moment, Tanguay

detected a smell of alcohol on Mr. Visitor’s breath. [ 12 ] Mr. Visitor was asked to provide a sample for the screening device and the result was “Fail”.

He was ordered to come to the police station for breathalyser tests. [ 13 ] In cross-examination, Tanguay admits that he didn’t know where the pick-up truck was coming from. [ 14 ] He could not say if the driver succeeded at his first attempt to park because at a certain point, they lost sight of the vehicle. [ 15 ] There was no infraction of the Val-d’Or by-laws nor was there infraction under the Highway Safety Code [4] . [ 16 ] About his motives for intervention, Tanguay stated: “Avant moi j’ai voulu l’interpeller parce que j’ai trouvé ça suspect que quand que moi j’ai rembarqué sur la deuxième (2

e) Avenue, là on circulait assez lentement, j’ai vu le véhicule s’immobiliser devant le, le pub. [5] [...] Puis après ça il est resté quelques secondes là, puis après ça il est allé se, se stationner dans le stationnement Mito (sic). [6] […] Ça fait qu’à cette heure de la nuit là, moi j’ai, j’ai trouvé ça suspect ça fait que j’ai voulu aller en savoir plus là. [7] […] Bien… moi ce que j’ai trouvé suspect, c’est que dans le fond moi là je crois, ce que je crois c’est que le véhicule là, il quittait le stationnement puis en me voyant, bien le véhicule est allé…l’individu est allé se restationner dans le fond pour pas être en possession de son véhicule.” [8] [ 17 ] And further: “Ça a attiré mon attention le fait qu’il s’immobilise là puis qu’après ça qu’il reparte se stationner à reculons.” [9] […] Okay.

Did, did you give him the choice to follow you near the, the police, the police vehicle? […] traduction Bah … je l’ai invité. […] traduction Could Mister have, could have the driver just walk away at that time? […] traduction Oui, j’avais pas encore senti l’odeur d’alcool à ce moment-là. [10] […] Je l’ai interpellé à savoir si lui avait consommé de l’alcool dans la nuit ou dans la soirée.” [11] [ 18 ] The account of the events of that night as recounted by officer Boisvert is mostly similar to the one of his colleague. [ 19 ] When she first saw the accused’s vehicle, Mr. Visitor seemed to be waiting.

She had the same impression that something strange or suspicious was going on when the pick-up truck parked. At the time, she was convinced that he parked the vehicle because he saw the police car. [12] They then decided to go meet the driver to verify if he had consumed alcohol. They started to talk to him in French and then Tanguay switched to English. Her colleague told her that he had detected an odour of alcohol from Mr. Visitor. [ 20 ] Mr. Visitor was at the Rock Inn with his girlfriend.

She left and they were supposed to reconvene at the Cocktail bar later on. [ 21 ] When he arrived there, it was about closing time so, around 3:00 a.m. She was already gone. [ 22 ] He had parked his pick-up truck behind the Home Hardware store. It had already been decided that he and his friend would go back home by taxi. As the pick-up was parked in the store’s parking, he decided to move it in a public parking lot to prevent it from being towed. He also retrieved his wallet, which he had left in the vehicle. He said “I was good enough to move it.

It took two minutes to park on a distance from 25 to 50 feet.” He saw the police cruiser in his mirror when he had just finished his manoeuvre. His friend was waiting for him at the corner. He exited the pick-up. The police cruiser parked in front of them and they invited him to their vehicle. [ 23 ] He said that he had three to four beers and, even if he felt he could drive, he decided to take no risk. [ 24 ] Position of the defence: [ 25 ] The question raised is: “Was the interception legal?” [ 26 ] There are two possible grounds for an interception :

Section 636 of the Highway Safety Code :

“636. Every peace officer recognizable as such at first sight may, in the performance of his duties under this Code, agreements entered into under

section 519.65 and the Act respecting owners, operators and drivers of heavy vehicles require the driver of a road vehicle to stop his vehicle. The driver must comply with this requirement without delay.” Or

Section 495 of the Criminal Code : “495 (1). A peace officer may arrest without warrant • (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; • (

b) a person whom he finds committing a criminal offence; or • (

c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in

Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.” [ 27 ] The defence submits that Mr. Visitor was detained when intercepted. They point out that

section 636 of the Highway Safety Code should not be used for inquiry purposes. Concerning

section 495 of the Criminal Code , the defence is of the opinion that the police had no reasonable motives to believe that the accused committed a crime and that a vague intuition is not a sufficient basis to act. So the detention and the arrest were illegal, arbitrary, and therefore, the evidence should be excluded. [ 28 ] Position of the prosecution: [ 29 ] The facts are pretty simple and eloquent – The police officers saw Mr. Visitor driving a few minutes before their intervention. • It was 3:00 a.m. when bars close; • It was near downtown bars; • It seemed that the manoeuvre done by Mr.

Visitor was to avoid the police when he saw them. [ 30 ] The police talked to Mr. Visitor and Tanguay noticed the smell of alcohol from his breath. He admitted having beers that night and he had a slurred speech. [ 31 ] The prosecution relies on

section 48 of the Police Act [13] and the obligation of police officers to prevent crimes. [ 32 ] Analysis: [ 33 ] This case is very similar to the case of R. v. Thibeault [14] where a car was parked near a bar, lights on with a person inside. Police went by, and when about to leave the parking lot, they saw that the person turned the lights off but nobody left the car. As it was 2:30 a.m., near a bar and, as they found the situation peculiar, they decided to intercept. [ 34 ] The first instance judge ruled that there was a breach of constitutional rights under

section 9 of the Charter and excluded evidence. In an appeal, judge Grenier stressed out that the police had the right to intercept under the Highway Safety Code , that they had articulable cause and that the evidence should not have been excluded. [ 35 ] The Supreme Court, in Ladouceur [15] , acknowledged the power of police officers to randomly intercept a vehicle to verify the sobriety of a driver.

Section 636 of the Highway safety Code authorizes such interception. [ 36 ] In Harvey, the Superior Court stated: “[…] ce n’est pas parce que l’intimée se trouve sur un terrain privé, alors que le policier vient de la voir conduire sur un chemin public, que ce dernier ne saurait se prévaloir des dispositions des articles 636 et 636.1 du C.S.R . ” [16] [ 37 ] In the case at bar, the police saw the accused driving in a parking lot a few minutes before they decided to intervene. [ 38 ] Moreover, as established in Cotnoir [17] , police also have the duty to prevent crimes.

In Dault [18] , the Court of appeal stated: “Il est de jurisprudence bien établie que les policiers peuvent patrouiller pour assurer la paix et la sécurité, prévenir la commission d’infractions et venir en aide à un citoyen. Il est aussi indéniable qu’en vertu de leurs pourvois généraux, les policiers peuvent interpeller des personnes et leur poser des questions dans le cadre d’une patrouille de routine comme l’écrivait la juge en chef du Canada et la juge Charron dans Grant : L’

article 9 de la Charte n’oblige pas les policiers à s’abstenir d’interagir avec les membres du public tant qu’ils n’ont pas de motifs précis permettant de rattacher une personne à la perpétration d’un crime. Bien entendu, les personnes interpellées n’ont aucune obligation de répondre et peuvent décider de s’en aller.” [ 39 ] It is exactly the answer given by Tanguay when he was cross-examined. The accused was invited towards the police cruiser and he could have left at this stage of their interaction. [ 40 ] In Durocher [19] , at night, a vehicle was parked near a bar, with the interior light on.

When police intervened, they neither had suspicion that the person was linked to a crime nor did they know that the person had consumed alcohol. The Superior Court decided that they acted within the range of their power.

[ 41 ] In Desaulniers [20] , the interception was also considered legal because police have the duty to prevent crimes and insure public safety. [ 42 ] In Chevrier [21] , a vehicle was parked near a bank with its lights on. The officer decided to go and verify the sobriety of the occupant and ask for what reason he was there at 1:52 a.m. When the officer talked to the man, he perceived an odour of alcohol.

The intervention and questions were considered legal by the Court and within the power of the officer. [ 43 ] In the case at bar, the situation is: • It was around 3:00 a.m., closing time for bars and policer were patrolling to detect impaired drivers. • It was downtown Val-d’Or, near bars. • The vehicle seemed to be waiting when the police cruiser first came by. • They saw the accused driving the vehicle. • Almost immediately after the encounter, the vehicle parked in the public parking lot, which was deemed suspicious by both police officers. • The very first time the police accosted Mr.

Visitor they were looking to see if he had been drinking that night and that was the very first question they asked him. • The police detected an odour of alcohol coming from the accused’s breath. • The accused said he had consumed beers. • The accused had a slurred speech. [ 44 ] The interaction of the police officers with Mr. Visitor stemmed from the fact that they were under the impression that he was about to leave and, when he saw the police cruiser, decided to park not to be in possession of the motor vehicle. [22] [ 45 ] Mr.

Visitor was not detained; he could have left. [23] [ 46 ] The only logical explanation was that police officers were within the boundaries of the Highway Safety Code as they intervened with Mr. Visitor to check if he had been drinking since they were already patrolling for that specific purpose. [ 47 ] From the ADA result, the police obtained “reasonable grounds to believe” and ordered the accused to provide samples at the police station. [ 48 ] The Court concludes that there were no breaches of sections 8 and 9 of the Charter . [ 49 ] In its final submissions, the defence renounced to invoke any violation under

section 10 of the Charter . [ 50 ] For the above-mentioned reasons, the motion under the Canadian Charter of Rights and Freedoms is denied. [ 51 ] The evidence revealed that the accused blew 223 and 212 % into the breathalyser. The defence declared having no evidence to tender. [ 52 ] The accused is declared guilty on count # 1. [ 53 ] There is not sufficient evidence to establish impairment: the accused was able to back up and park correctly; he was standing straight; he had a slurred speech, but that is far from enough to establish beyond a reasonable doubt that his ability to drive was impaired by alcohol.

Therefore, the accused is acquitted on count # 2. __________________________________ LUCILLE CHABOT J.C.Q. Mtre. André-Anne Gagnon Attorney for the Mtre. Pascal Jolic oeur Cliché, Matte, Jolicoeur Procureur pour l’accusé Date of hearing: May 13, 2015, August 17, 2015 (warrant for arrest), January 20, 2017

Annexe

Case law submitted by the defence: • R. v. Poirier 2009 QCCS 2030 • Elias Tsakalis v. The Queen 2014 QCCQ 4122 • R. v. Carrière 2007 QCCM 393 Case law submitted by the prosecution: R. v. Cotnoir (QCCA)R. v. Thibeault 2006 QCCS 1831 Case law considered by the Court: R. v. Hernandez 2012 QCCQ 1435Bachand-Leblanc v. The Queen 2015 QCCS 2917Gagnon v. The Queen 2015 QCCA 1138R. v. Achakji 2015 ONSC 4364R. v. Lessard 2007 QCCS 4793