R. v. Harper, 2021 ONCJ 571

CITATION: R. v. Harper , 2021 ONCJ 571 DATE: October 21, 2021 Information No. 2811-998-19-37550-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. WAYNE HARPER * * * * * * * * BEFORE THE HONOURABLE MR. JUSTICE G.R. WAKEFIELD OCTOBER 19, 2021 at OSHAWA, ONTARIO R E A S O N S F O R J U D G M E N T APPEARANCES : K. Buker, Ms. Counsel for the Crown D. Gravesande, Esq. Counsel for the Defendant Wakefield J (Orally)

Mr. Wayne Harper stands charged that on the 6 th day of September, 2019, did operate a conveyance while impaired by alcohol or by drug. Additionally, on the same day, he refused to provide a sample of his breath. Among other issues, the applicability of R. v. McColman, 2021 ONCA 382 as to the police attendance on a private driveway to investigate. The trial had been estimated to take one full day and commenced on December 14 th , 2020, continuing March 1 st , 2 nd , 3 rd and June 23 rd , 2021. The Crown case comprised of the testimony of PC Boodhoo, PC Bell, and the booking and breath room videos.

The defence case comprised of calling another involved officer, PC Golias, the defendant, only for the purposes of the Charter application, and several photographs of the entry driveway to the defendant’s residential condominium. Given the lengthy duration of the trial, I directed both counsel to prepare written submissions rather than set further court dates for oral submissions, and I appreciate the work that both counsel put into that. PC Boodhoo testified as to receiving a radio call regarding a civilian complaint as to a driver being possibly impaired, and that the civilian was following the suspect vehicle.

The vehicle was described as a white Ford pickup truck with a licence plate of AR64 594. The dispatch apparently included information that the civilian had described the vehicle driving at 40 kilometres per hour eastbound on Rossland Road, except that PC Boodhoo’s notes did not reflect that. The vehicle was described as having tinted black windows and drifting into other lanes. Apparently the vehicle at some point was being followed by Air-1, the Durham Regional Police Service helicopter.

The officers self- dispatched themselves to follow up and confirm, that the radio call was prior to 11:02; however, the officer was unsure how long before nor what his location was when he heard the call. He was unsure if he checked the reported licence plate prior to his attendance on the scene. I find he must have in order to attend at the address of the defendant’s residence, and that is indeed corroborated by PC Golias. He advised that he attended there due to the civilian advising the direction of the suspect vehicle, which made less sense to me.

The officer proceeded to Civic Centre Drive and Petra Way where he observes the defendant’s vehicle. He observes the motor vehicle moving slowly and swerving into the oncoming lane, albeit a lane without road markings. He advised the truck was estimated to be traveling on Civic Centre at approximately 25 to 30 kilometres per hour, and that it had a 50 kilometre per hour limit. He followed the vehicle along Petra Way until it approached the parking garage, where the officer activated his emergency lights. The officer did not see any response, so tapped on its horn to get the truck to stop, which it then did.

His report, however, sets out first observing the defendant as he approached the garage, which would be on Petra Way. The officer asserts an independent recollection of first seeing the defendant on Civic Centre. The report was silent as to the observed speed of the vehicle, and again the officer asserted an independent recollection, and that the speed limit was 50 kilometres per hour due to it being a residential street, and then amended that recollection to then being unsure of the speed limit on Petra Way.

Both duty memobook and typed occurrence report were silent on the issue of observing the defendant on Civic Centre, silent as to the speed, and silent as to the officer’s observations of swerving into the oncoming, unmarked lane. Each of these omissions are important observations which would be important not only for refreshing the officer’s memory 15 months later, but also important disclosure for the Crown and the defendant preparing for trial.

The officer advised that he had no explanation for these omissions in his notes and typed occurrence report, however asserted that he had previously satisfied himself as to the accuracy

of his notes, but then advised that he did not recall if he had realized any significant omissions. The officer asserted that his independent recollections were a result of reviewing those notes while testifying, despite those notes being silent on these issues. I must also note that the officer in question, at the time of testifying, had been up for over 24 hours straight, given his duties, and that the trial was occurring when he would otherwise have been sleeping.

In my view, it certainly seems more consistent with the officer first seeing the defendant on Petra Way than earlier on Civic, given the otherwise delay in pulling the defendant over, if that was the officer’s intention. I also note that the officer, unlike his earlier testimony on the previous date, testified he had not followed the defendant but only observed him briefly, which is not consistent with first observing the defendant on Civic Centre.

In any event, the officer then clarifies that he briefly observed the defendant just as he turned onto Petra Way, and the officer “proceeded to locate the defendant’s vehicle”. He confirmed that he found the vehicle at the parking garage. He confirmed that the driveway into the parking garage was 50 to 60 feet to the garage door. The officer’s recollection was that he could not dispute the suggestion that the defendant’s vehicle was just 6 feet from the garage door, which would mean the defendant was 40 to 50 feet into the condominium driveway.

However, in re-direct, the officer’s recollection is that only the front wheels of the defendant’s vehicle were on the decline towards the garage door and most of the vehicle was still on Petra Way, which would be quite inconsistent with the length of the driveway he had testified to. He confirmed that he did not engage his emergency lights prior to the defendant being in the residential driveway, despite observing swerving. He denied having been parked on Petra Way awaiting the defendant’s return to his residence. The officer confirmed that he was not in hot pursuit of the defendant, nor chasing him.

The officer confirmed he had not obtained any authorization from the condominium management to enter the private property of the building. His duty memobook entry as to the information from the dispatcher was only that there was a possible impaired driver, with truck and licence plate information. The entry lacked any indicia of the type of driving. The officer also confirmed that he lacked any articulable cause when he first observed the defendant swerving on Civic Centre Drive, and that the stop of the defendant was less than a minute later.

He advised that he now had articulable cause from seeing the truck’s licence plate. He confirmed that he did not advise the defendant that the defendant was now detained. He advised the defendant that he was investigating a possible impaired driver, but agreed that he did not tell the defendant that it was the defendant who was the suspect. The officer tapped on the defendant’s window resulting in the window being partially lowered, and then tapped again to have the defendant lower the window some more. The officer noted the defendant had glassy red, bloodshot eyes.

He smelled an odor of alcohol, as he testified to as being directly from the defendant’s breath when he was about one and a half feet from the defendant’s mouth. He also described the defendant as staring forward. And his notes lacked the specificity of the odor emanating from the defendant’s breath. I note the difficulty in confirming an odor coming from the mouth if the suspect driver was not facing the officer but, as the officer described, was facing forward.

The officer made observations of the defendant’s eyes, which apparently were from before the window was lowered, through the glass, while the defendant was, again, staring forward. The officer directed the defendant to put the truck into park and upon being asked why, he advised the defendant he was investigating an impaired driver. The delay in complying with the direction to place the vehicle in park was only about 30 seconds, which in re-direct asserted was a long time with officer safety risk.

The officer sees the defendant swaying within the driver’s seat as the defendant stared straight ahead, which is not an observation corroborated by PC Golias. The officer agreed that he did not have grounds to arrest the defendant when directing the defendant to exit the vehicle. However, he confirmed that he arrested the defendant as soon as the defendant exited the vehicle. The defendant was described exiting the car slowly, using the door frame, and then bracing himself against the side of the vehicle.

The witness felt the need to grab the defendant due to the swaying and stumbling in fear of the defendant falling down. I note that none of these physical indicia were apparent to me from viewing the in-station videos. The officer decided he had reasonable and probable grounds and arrested the defendant, directing him to the rear of the cruiser, describing how he had to assist the defendant in walking to and getting into the cruiser. This took about two minutes to actually get the

defendant into the rear of the cruiser. When trying to read rights to counsel, the defendant was described as continuing to interrupt, including swearing over three attempts, and when asked, Do you understand, he did not get any affirmative answer, which the officer took as a response, as the officer concluded the defendant was being difficult by the continuing assertion that he did not understand. Again, I am concerned that the officer’s recollection is not reflected in its entries in the computer onboard the cruiser, but similar entries were made by PC Golias on the onboard computer.

Over about seven minutes with the defendant yelling at the officer, resulting in the officer deciding to let the defendant vent, that conduct continued through the caution and the breath demand. The defendant did not ask to speak to a lawyer. The officer took his time stamps from the onboard computer. He arrived at the police station at 11:19 or 17 minutes after first being there at Civic Centre. The defendant was placed in cells while the officer searched for a sergeant to conduct the parade.

The officer’s memory challenges were also reflected in the testimony of PC Bell who advised that PC Boodhoo gave grounds, which included advising the defendant, when asked if he had been drinking responded “not much”, of which conversation either with the defendant, nor with PC Bell did PC Boodhoo have any recollection whatsoever, nor such entry in his notes. PC Bell, the qualified breath technician, testified as to the circumstances of the defendant’s refusal to provide a breath sample. He corroborated PC Boodhoo as to accessing Duty Counsel.

He confirmed that the video of the breath room was an accurate recording. He asserted that the defendant was uncooperative, including the defendant’s inquiries as to whether the Duty Counsel was even a lawyer. The booking video depicted the defendant walking in at the booking desk. While he was shuffling, I did not perceive any overt indicia of impairment in circumstances in which the request for the washroom was delayed until the booking and search was complete. The breath test video recorded a clear refusal to provide a sample. While he spoke with an accent, I did not hear any suggestive of slurred speech.

I do find the defendant was uncooperative with PC Bell. The civilian complainant was not called by the Crown, and the Crown case was closed. The defence called PC Boodhoo’s partner, PC Golias, who advised that rather than being self-directed, they were actually on a different call and were re-directed. He testified that the officers first spot the defendant vehicle on Petra Way and parked behind it, but then said that was when he first saw the vehicle. The defendant was at the top of the ramp about to head down into the basement parking lot.

The officer does not recall if his notebook entry of the defendant having bloodshot and glassy eyes arose from an observation made before or after the defendant rolled down his window. The elapsed time between the traffic stop and arrest, according to PC Golias, was about three seconds. PC Golias confirmed that the defendant’s licence plate was checked and confirmed the defendant was the owner and his address on Petra Way prior to the arrival on scene.

He confirmed it was due to the licence plate check and confirmation of the address that the officers went directly to Petra Way, a somewhat different sequence of events as described by PC Boodhoo. The defendant testified solely on the Charter application. He confirms he was on the ramp to the garage, which is consistent with PC Boodhoo’s estimate that the defendant was about six feet from the garage door. However, the defendant estimated that the front of his vehicle was only about four feet from the garage door.

When the police were knocking on his window, he was now confused and scared because he did not know what was going on. He denied being told why he had been stopped, nor told he was under arrest until on route to the station. He did not remember rolling down the rear window first and agreed it could have happened. He testified that he was unaware of what “counsel” meant or “retainer” or “retain and instruct”. To his credit, he also advised that he does not remember if he was told about the breath sample demand on the way to the

station. However, he confirmed he was told about his rights to counsel four times but asserted that he did not understand. He asserted that he told the police that he wanted to talk to his own lawyer. If so, that would not be consistent with his choice during the booking video, and which video the defendant asserted was not accurate. He testified that he told the police that he wanted a different lawyer as the Duty Counsel identified himself as a Government lawyer, which was not recorded in the breath video when discussions were made about access to lawyers.

He testified that he was not on Civic Centre but had taken a different route to his residence, which is a condominium which he has owned a unit within for twenty years and resided there himself the past six years. Despite seeing the two videos played in court, the defendant asserted he was not being difficult. Photographs of the entrance driveway leading up to the ramp were filed which clearly show signage that it was private property and that unauthorized vehicles would be towed away.

Despite the concerns I have as to some aspects of the reliability of PC Boodhoo’s recollections, I find the defendant was the driver of the suspect vehicle. I find that there was a clear unequivocal refusal in the breath room. I find the defendant’s vehicle was indeed stopped while on a private driveway of the condominium and no more than six feet from the garage door.

Given PC Boodhoo’s testimony as to observations and the mere three seconds from the car being stopped to arrest, I am concerned as to the risk of his memory having been conflated with other arrests when he was so tired, and I am not prepared to find those observations sufficient to convict on the impaired count, especially given my observations of the defendant on the videos which show a difficult detainee without observable indicia consistent with PC Boodhoo’s recollection of the defendant’s demeanor outside of the truck.

Those three seconds between traffic stop and arrest in any event undermine the objective grounds, to some extent, as described by the officer. But the test for reasonable and probable grounds is not a high one. Here, I have no reason to disbelieve the officer having a subjective grounds basis, and given the officer’s knowledge of the earlier driving from dispatch, and his belief as to his observations of the defendant, I find that there was indeed a valid arrest, though very, very close to the line.

However, given those concerns I have as to PC Boodhoo’s memory, together with my observations of the defendant on video, and disabusing myself of the hearsay evidence of the complainant and Air-1, I am not convinced beyond a reasonable doubt that he was impaired and there will be an acquittal on that count. Nor am I prepared to accept the defendant’s testimony without corroboration as I do not accept the professed confusion over words such as “counsel” or “retainer”. Any disquieting as to the advice from the Duty Counsel would have been easily stated on the breath video when PC Bell inquired about counsel.

In my view, whatever basis the defendant believed that the access to Duty Counsel at the police station meant that they worked in collusion with each another, without testimony from Duty Counsel as to their conversation, is, in my view, uncorroborated and without merit. The defendant has not met his onus regarding a s. 10(

b) violation. I agree with the Crown’s submissions regarding an earlier contact with Duty Counsel in the cruiser is indeed impracticable for providing privacy, and if it had occurred in the presence of the officers would rightly be the subject of a Charter attack. Had the officers left the cruiser to permit privacy, and there was any type of medical issue while in the custody and responsibility of the officers, that too would be the subject of criticism. The first reasonable opportunity to provide access to counsel was indeed at the station.

Indeed, the defendant’s denial of what actually occurred and what was actually recorded on the video seriously undermines his credibility and reliability. This, in my view, is not a situation paralleling the Supreme Court decision in R. v. Le . While I agree that a court should consider how a racialized individual may perceive the police, and I do accept that a black male, such as the defendant, may justifiably be unsettled or even frightened by being pulled over by the police at night.

His demeanor on video is demonstrative, in my view, of an individual sufficiently confident in the situation to refuse the breath sample and to stand firm in his posture of not understanding the charges or his rights. Given my concerns with the defendant’s testimony, I do not accept that PC Boodhoo neglected to provide the defendant his Charter rights and accept that he did so in circumstances where the defendant was being uncooperative, similarly as to his demeanor on video. And for the same reasons, I accept that the appropriate breath demand was made by PC Boodhoo.

The delays in processing the defendant and accessing Duty Counsel are reasonable, given the difficulties created by the defendant. Furthermore, there is the applicability of R. v. McColman and the defendant being stopped on the private property of the condominium.

Although I may be sympathetic for minority reasons, I am bound by the majority, and the question becomes, does it apply to this case. I find that the condominium driveway was in excess of 40 feet, and that the front of the defendant’s vehicle was no more than 6 feet from the garage door. If the cruiser was parked directly behind the defendant and the cruiser was not parked on Petra Way but certainly, to some extent, on the condominium’s driveway leading to the garage. And in McColman the driveway was a shared private driveway at that accused’s parents’ residence and a commercial establishment.

Here, the condo driveway was noted as private property of the condominium of which the defendant was a resident owner of a unit there. In my view, a condominium driveway is more private than one shared with a commercial establishment, despite its shared usage by a number of residential unit owners. In McColman , there was no signs of impaired driving observed by those officers whatsoever, nor any indicia or knowledge of, and similarly none that I am prepared to accept in the case here such as swerving on Civic Centre, which was un-noted in the memobook, nor observed by the partner officer.

However, in the case at bar, while hearsay at trial, there was a report describing the defendant vehicle swerving into oncoming lanes, together with a licence plate and vehicle description of the defendant’s truck. As such, at least as to grounds, PC Boodhoo had more information on which to base a traffic stop than did the officers in McColman . However, PC Boodhoo also agreed that he lacked articulable cause or articulable grounds until he saw the licence plate, which was after the defendant truck was on the driveway on my finding of facts.

However, that prior knowledge of the driving complaint takes this case, in my view, out of the fact situation in McColman as here PC Boodhoo just needed the licence plate to have articulable cause, which, in addition to the other information he believed he had heard triggered the investigation, and as such I find that the McColman case does not apply to this fact situation, though again it is very, very close to the line. As such, I am left with a clear, unequivocal refusal of the breath demand for which Mr. Harper has a legal obligation of which to comply.

He refused to do so, and in so doing was guilty of the charge of refusal. The defendant has also brought an 11(

b) delay application. I agree that the 20 months delay calls out for an examination. Having said that, in my view this application can be dealt with quite quickly. The matter was pre-tried. Both Crown and defence bear equal responsibility to ensure a trial estimate is sufficient. Even with the Crown not calling one witness and a contested application to permit defence to cross-examine a police officer taken out of the mix, this was a trial which time estimate was sorely under estimated.

An uninterrupted trial date comprises of between four and a half and five hours of actual testimony, once the luncheon and recess breaks are taken into account. There was indeed a late start to the trial on the first date given it being traversed into my court from its original location. Then again, the first witness was not completed until the third day of trial.

Whatever the tactical decisions made by both Crown and defence regarding which witnesses were called and how to question them, this trial was never going to finish in under five hours, and by under estimating the required time for completion, even necessitating written submissions rather than wait for additional court days, the trial estimate was poorly assessed. That under estimation prevented the trial being completed in December of 2020, and the actual cause of the delay, without which the trial would have been completed within the Jordan guidelines.

In my mind, a pre-trial Crown binds the trial Crown of both concessions and time estimates, just as defence counsel is also expected to bind themselves for trial. Both have an equal obligation to the administration of justice to prevent unnecessary continuations due to an overly optimistic expectation of trial time.

For a one day estimate to be valid, excluding the civilian witnesses, in this case would have required that the four witnesses each would take less than half an hour with each lawyer for something almost four hours of duration, that submissions would have lasted no more than 15 minutes by each lawyer, to permit the trial judge to render a judgment in under half an hour. I rarely experience trials of any type of charge meeting that short a time limit, especially when setting up the Charter issues involved.

As such, I find the defendant has not met its onus on the 11(

b) application, and as such the conviction for the refusal does indeed stand. ********* CERTIFICATE OF TRANSCRIPT SUBSECTION 5(2) EVIDENCE ACT I, JULIE COUSSONS , CERTIFY THAT THIS DOCUMENT IS A TRUE AND ACCURATE TRANSCRIPT OF THE RECORDINGS IN THE MATTER OF R. v. WAYNE HARPER, IN THE ONTARIO COURT OF JUSTICE, HELD AT 150 BOND STREET EAST, OSHAWA, ONTARIO, AND TAKEN FROM RECORDING #2811_107_20211019_123116 6_WAKEFIG, WHICH HAS BEEN CERTIFIED IN FORM 1 BY LUKE LEVINE. ................................ JULIE COUSSONS - CCR/ACT, CERTIFIED COURT REPORTER, AUTHORIZED COURT TRANSCRIPTIONIST.