HER MAJESTY THE QUEEN — v. —, 2018 ONCJ 867

ONTARIO COURT OF JUSTICE CITATION : R. v. Eastmond , 2018 ONCJ 867 DATE : December 10, 2018 Scarborough - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — HAROLD EASTMOND ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) For the Crown A. Bergen For the Defendant J. Rosenthal Heard: September 20, 21, October 09, 2018 REASONS for JUDGMENT RUSSELL SILVERSTEIN, J.: A.

INTRODUCTION [ 1 ] Harold Eastmond is charged with impaired driving and operation of a motor vehicle with a blood alcohol concentration over 80 milligrams in 100 milliliters of his blood. [ 2 ] In the early morning hours of June 3, 2017 the accused was found by police, alone and asleep behind the wheel of his stopped car, facing a green light, pointing south, parallel to and against the west curb on McCowan Road. [ 3 ] Officer Gillegean approached the driver’s side and engaged the accused in conversation.

The officer soon made a demand pursuant to s. 254 (2) that the accused provide a sample of his breath into an approved screening device (ASD) and asked his partner to call for one. While waiting for the arrival of the ASD, Officer Gillegean had further dealings with the accused which culminated in his arrest for impaired driving before the arrival of the ASD. A breath demand under s. 254 (3) was made and the accused was transported to the station where he registered 160 mg/100 ml at 04:16 am and 170 mg/100 ml at 04:40 am. [ 4 ] At the end of the evidence, Mr.

Bergen told the Court that he was not seeking a finding of guilt on the impaired driving

charge, but was seeking a finding of guilt on the offence of care and control over 80 mg. Defence counsel, Mr. Rosenthal, conceded thatthe accused was in care and control of his motor vehicle at the material time. [5] There are four issues in this case: (1) was the detention of the accused arbitrary, (2) was the officer’s seizure of Mr.Eastmond’s breath samples reasonable, (3) was the accused’s right to counsel infringed, and (4) if any of these Charter rights wereinfringed, should the breath results be excluded pursuant to s. 24 (2) of the Charter. [6] The seizure of the accused’s breath sample was warrantless.

The Crown thus bears the onus of proving on a balance ofprobability that the officer had reasonable and probable grounds to make the breath demand. R. v. Bernshaw, (SCC),[1994] S.C.J. No. 87; R. v. Shepherd, 2009 SCC 35 , [2009] S.C.J. No. 35 at para 16. [7] As concerns the alleged ss. 9 and 10(

b) breaches, the onus is on the accused to prove the alleged breaches on a balance ofprobabilities. R. v. Collins, (SCC), [1987] S.C.J. No. 15. B. EVIDENCE (

a) Introduction [8] Three witnesses testified for the Crown;

(1) The arresting officer, Benjamin Gillegean; (2) his escort, Officer Brandon Reeve;and (3) the breath technician, Officer Ali Perez. These officers’ testimony was supplemented by in-car video and audio of what occurredat the roadside (ICC), video of what occurred before the booking sergeant and audio and video of what occurred in the breath room. [9] The accused called no evidence. (

b) The evidence of what occurred at the roadside [10] On July 3, 2017 Officers Gillegean and Reeve were operating a marked police car heading south on McCowan Road nearAlton Towers. They observed the accused`s vehicle stopped against the west curb of the southbound lane. Its rear lights were on. It faceda green light at the next intersection, which was two car lengths away. [11] They stopped their car behind the accused`s car and approached it. The accused was alone in the driver’s seat, slumped overthe steering wheel. He appeared to be either asleep or unconscious.

The dashboard of the accused’s car was illuminated. [12] Gillegean approached the driver`s side window and began to knock and yell at the accused in an attempt to rouse him, initiallywithout success. When the accused finally came to, approximately two minutes later, he turned and smiled at Gillegean through thewindow. According to Gillegean, the accused’s eyes were not clear and crisp, but rather, cloudy or hazy. [13] Approximately 30 seconds later the accused unlocked the door and Gillegean opened it, stepping into the gap created by theopen door.

As he put it, he was immediately “hit with the smell of alcohol, or at least what [he] believed was alcohol”. The odour wascoming from inside the accused’s car. [14] At this juncture Gillegean, with Reeve’s help, put on the microphone that was attached to the police in-car video, and thebalance of his discussion with the accused was video and audio recorded. Gillegean reviewed the recording before he testified. [15] Gillegean asked the accused if he had had any alcohol and the accused responded in the negative.

Gillegean asked the accusedwhere he was heading and the accused said he was going home to Markham, Ontario. Gillegean found this odd since the accused`s carwas pointed south and Markham was north of their location. [16] It was Gillegean`s opinion that the accused’s speech was “a little slurred…a little bit slow”. Officer Reeve had no recollectionof the accused’s speech being slurred. [17] As a result of his observations of the accused, Gillegean suspected that the accused “was perhaps impaired with alcohol”. Hethus read the accused a demand that he provide a sample of his breath into an ASD.

Gillegean told the accused that he was beingdetained and why, cautioned him and told him, without reading the prescribed wording in the back of his notebook, that he had the rightto speak to a lawyer and provided a number for Duty Counsel. The accused said that he was a lawyer and said he didn’t want to call one. [18] Gillegean asked Reeve to call for an ASD since they did not have one. [19] The accused waited in his car at first but soon exited the vehicle and told the officers that he needed to urinate. The officerspointed out that there was no bathroom nearby.

The accused asked to cross to the east side of the road to urinate in the bushes. Theofficers, concerned about having the accused cross the road, instead directed him to the bushes on the west side of the road. According toGillegean, when the accused walked over to the bushes he appeared to “stumble”. Gillegean described the accused as “not walkingnormally”, “kind of like as if you’d been on a boat and then you got back on dry land”. When the accused went from one bush to anotherGillegean saw him “kind of stagger”. The accused was “unsteady on his feet”.

He also had difficulty doing up his belt when he wasfinished urinating. [20] The ICC shows that just as the accused leaves the frame of the video on his way to the bushes, Gillegean comments for thevideo/audio that the accused “is stumbling on his feet”. He also comments to the effect that the accused was “having a little bit ofdifficulty with his buckle”. [21] In my opinion, the video shows that the accused was indeed somewhat unsteady on his feet just after mounting the curb on his

way to the bushes, and again upon his return from urinating. [ 22 ] Now that the accused was out of the car and Gillegean was dealing with him face to face in the open air, Gillegean could tell that the odour of alcohol was coming from the accused’s breath. Gillegean asked the accused if he was suffering from any medical condition that might explain his observations.

The accused said that he wasn’t. [ 23 ] In light of these further observations since the accused’s exit from the car, Gillegean believed he now had reasonable grounds to believe that the accused “was impaired by alcohol” and arrested him for impaired driving and made a demand for a breath sample into an approved device.

After a brief search, Gillegean again informed the accused of his right to counsel and again the accused said he didn’t want to consult a lawyer. [ 24 ] Constable Reeve corroborated Gillegean’s testimony as concerns the accused’s reaction to Gillegean’s approach to the driver’s side door, although he positioned himself on the passenger’s side of the accused’s car and thus didn’t hear all the details of Gillegean’s discussion with the accused. [ 25 ] According to Reeve, when the accused approached the officers after getting out of his car he was unsteady on his feet.

As he mounted the curb to go to the bushes he was “kind of rocking back and forth, staggering as he was walking”. He looked as though “he was walking on a moving boat, the rocking of the water”. In Reeve’s opinion, the accused was “impaired”. (

c) The evidence of what occurred at the police station [ 26 ] According to Gillegean, the accused remained unsteady on his feet while being paraded before the officer-in-charge at the station, so much so that it appeared as if he might lose his balance and fall down. While waiting for the breath technician the accused fell asleep a few times. While at the station the accused again declined the offer of access to counsel. Officer Reeve testified that the accused exhibited no balance problems while back at the station. [ 27 ] The evidence of the breath technician, P.C.

Perez, as supplemented by the video and audio of the breath room procedure was to the effect that the accused exhibited glassy bloodshot eyes and a strong odour of alcohol on his breath. His speech and fine motor control were good and he was not unsteady on his feet. [ 28 ] According to Perez, Gillegean did not relate to him his roadside observations of the accused. (

d) The cross-examination of the officers and the video evidence [ 29 ] The cross-examination of the roadside officers revealed several inconsistencies in their evidence, both individually and as between them.

The fundamental question is whether the cross-examinations and the video evidence leave me unconvinced as to Officer Gillegean’s reasonable and probable grounds for his arrest and the subsequent breath demand, bearing in mind the onus and standard of proof alluded to in paragraph 6, supra . [ 30 ] Officer Gillegean consistently denied reviewing the times of critical events with Reeve although there seems to be no other explanation for the fact that their notes show identical incorrect times for several events.

When first asked, Reeve insisted that he and Gillegean had not consulted each other regarding the time that certain events had occurred. He testified that he had consulted the ICAD (a police data base) report for his times. When Mr.

Rosenthal demonstrated to Reeve that the ICAD did not contain the time of the arrest, and that both he and his partner had the same incorrect time in their notes regarding the arrest and the booking procedure he finally grudgingly admitted that they did indeed compare notes as to times. [ 31 ] At one point in his cross-examination as to the times he wrote in his book, Gillegean explained that the reason he noted the booking as taking 10 minutes, when it in fact took only seven minutes was that his watch wasn’t working properly and that it “told him” that the booking had indeed taken 10 minutes. [ 32 ] Gillegean went further and denied reviewing the synopsis of the events at the roadside that Reeve had prepared back at the station, even though Reeve testified that he himself had prepared the synopsis and had solicited Gillegean’s input as to what it should contain. [ 33 ] It was pointed out to Gillegean that the video shows that Gillegean told Reeve that while he could smell something emanating from the car, he was not sure what it was.

In chief, Gillegean said that he had been “hit by” the smell of what he believed to be alcohol. Mr. Rosenthal submits that this is a significant discrepancy in Gillegean’s evidence. I don’t agree. Officer Gillegean never said that he was sure that the strong odour emanating from the car was the odour of alcohol. He thought it was, but he wasn’t sure. His evidence, and his statement to Reeve are consistent in this regard.

Indeed, he admitted that after his encounter with the accused while the accused was still seated in the car, he had no more than a suspicion that the accused had consumed alcohol. [ 34 ] On cross-examination, and after reviewing the in-car video, Gillegean conceded that the accused was not unsteady on his feet just after exiting his car. Nor, in his opinion, does the video depict the accused “stumbling” as he makes his way towards the curb on his way to urinate. Gillegean insisted, however, that the accused did stumble as he made his way off camera into the bushes.

He also believed that the accused can be seen “stumbling” as he reappears on camera on his way back from the bushes. [ 35 ] Mr. Rosenthal argues that Gillegean’s use of the word “stumbling” is problematic. He argues that Gillegean is inconsistent in his description of the accused’s gait; sometimes describing the accused as “unsteady on his feet” and sometimes describing the same event as “stumbling”.

[36] This inconsistency loses its impact when one examines Gillegean’s use and understanding of language. A close review of histestimony reveals that to him, “stumbling” and “unsteadiness” are the same. While many might differ from him in their understanding ofthese words, as I do, I find nonetheless that Gillegean honestly believed them to be synonymous. It is interesting to note that the MerriamWebster dictionary provides several

definitions for the word “stumble”, two of which are: (1) to trip in walking or running, and (2) towalk unsteadily or clumsily. [37] There was a significant discrepancy between Gillegean’s recollection of the accused’s balance while being booked by theofficer-in-charge, and the video of this encounter. Gillegean testified that he had to hold onto the accused lest he fall to the ground. Thevideo shows no such thing. Although Gillegean admitted his recollection was wrong, he had no explanation for it.

There was nothing inhis notes to the effect that the accused was unsteady on his feet while being booked. [38] Gillegean denied discussing the case with Reeve and denied reviewing his notes. Mr. Rosenthal asked Gillegean if he had anyexplanation for the fact that both he and Reeve used similar boat similes in describing the accused’s unsteadiness. Gillegean testified thatit was merely coincidence. There was no mention of Gillegean’s boat simile in his notes. C. ANALYSIS (

a) The alleged

section 9 breach [39] Mr. Eastmond’s detention began with Officer Gillegean’s ASD demand, made while the accused was still seated in his car.Gillegean testified that he made the demand because he suspected the accused “was perhaps impaired by alcohol”.

He suspected as muchbased on the following observations: (1) the accused was asleep or unconscious behind the wheel; (2) he was slow to respond; (3) hiseyes appeared hazy; (4) an odour of what Gillegean suspected was alcohol was emanating from the car; and (5) the accused’s speech wasslurred. [40] Notwithstanding the difficulties I have with the reliability of Gillegean’s testimony, which I shall discuss in greater detailbelow, I accept his evidence as concerns these initial observations.

Even though his expressed state of mind does not accord with therequirements of s. 254 (2), I am satisfied that a suspicion that the accused was “impaired by alcohol” subsumes the required state ofmind, i.e. that the accused had “alcohol in [his] body”. The ASD demand and the detention arising therefrom were lawful. R. v.MacPherson, (ON CA), [2000] O.J. No. 4777 (C.A.). (

b) The alleged

section 8 breach [41] More significant is the s. 254 (3) demand that soon followed. The questions I must answer as concerns the arrest and demandare: (1) did Officer Gillegean honestly believe that the accused’s ability to operate a motor vehicle was impaired by the consumption ofalcohol (the subjective component of the test), and; (2) would such a belief have been reasonable in the circumstances (the objectivecomponent of the test). [42] The Crown’s case on these issues depends to a significant extent on the testimony of Officer Gillegean. I found his testimony tobe at times quite perplexing.

He was often evasive, especially as concerns his communications with Reeve after the incident. At timeshis recollection was completely at odds with the video evidence, especially as concerns the accused’s balance in the booking hall. Hisevidence alone would not have convinced me that no Charter breach had occurred. [43] Officer Gillegean’s testimony does not stand alone, however.

The significant portions of his testimony are corroborated by theICC and the evidence of Officer Reeve. [44] Dealing first with Reeve’s testimony, I found it to be generally more reliable than Gillegean’s, although he too was evasive asconcerns his discussions with his partner back at the station. That both Reeve and Gillegean resorted to almost identical similes todescribe the accused’s unsteadiness suggests that they did speak to each other about their observations. [45] The most important corroboration, and indeed the most important original source of evidence is the in-car camera video andaudio.

It is the most reliable source of information as to Gillegean’s state of mind at the material time and the most reliable source ofdata regarding the accused’s behaviour on the night in question. [46] The three sources of evidence as to the state of affairs at the roadside, i.e. the two officers’ testimony and the video, convinceme that when he arrested the accused and made the s. 254 (3) demand, Officer Gillegean honestly believed that the accused’s ability tooperate a motor vehicle was impaired by the consumption of alcohol.

Even though his testimony was problematic, his contemporaneousobservations made on the audio seem to me to be accurate and sincere. Mr. Rosenthal argues, at least implicitly, that when Gillegeansays on the video that the accused was stumbling and having trouble with his buckle, or when he says on the video that the odour ofalcohol had become stronger, I ought not to accept these contemporaneous observations. I do not accept that argu​ment. The video showsthat the accused was indeed unsteady on his feet.

Moreover, Officer Gillegean’s generous and helpful attitude towards the accusedthroughout his dealings with him, as evidenced by the two videos, belies any suggestion that Gillegean was out to get the accused andwould exaggerate his observations for the audio he knew was being recorded. [47] Even though Gillegean expressed his state of mind in his testimony in different terms than those required by s. 254 (3), thevideo and audio, along with the balance of his testimony convince me that he indeed believed that the accused’s ability to operate amotor vehicle was impaired by the consumption of alcohol, or that the accused had, within the preceding three hours committed anoffence under s. 253.

His failure to mimic the wording of the

section is not fatal. R. v. Martin, [2005] O.J. No. 670 (S.C.J.) at paras. 15 –18; R. v. Harris, [2007] O.J. No. 675 (S.C.J.) at para. 45

[48] As for the reasonableness of this belief, my review of the three sources of evidence on this subject leads me to accept that: (1)the accused was unconscious or asleep behind the wheel of his car facing away from his stated destination; (2) his speech was slow andslurred; (3) his breath smelled of alcohol (this is corroborated as well by the breath technician); (4) he was unsteady on his feet and hestruggled with his belt buckle. These observations, taken together, amply support the reasonableness of Gillegean’s arrest and breathdemand. R. v. Shepherd, supra; R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.) (

c) The alleged

section 10 (

b) breach [49] Immediately upon his detention the accused was entitled to be informed of the reason for his detention and entitled to be givenan opportunity to consult counsel if he so chose. Officer Gillegean made it clear to the accused why he was being detained. His initialreading of the accused’s right to counsel while not “by the book” did convey to the accused the fact that he had the right to consultcounsel immediately and the phone number for duty counsel. Minutes later, the subsequent reading of the accused’s 10(

b) rights after hisarrest for impaired driving was indeed according to the proper formula at the back of every officer’s notebook. It is apparent to me thatthe accused, himself a lawyer, fully understood his right to consult with counsel. His refusal to avail himself of that right was firm,repeated and unequivocal. I find no breach of the accused’s 10(

b) Charter rights. R. v. Sinclair, 2010 SCC 35 , [2010] S.C.J.No. 35; R. v. Brydges, (SCC), [1990] S.C.J. No. 8; R. v. Owens, 2015 ONCA 652 , [2015] O.J. No. 4972(C.A.), leave refused [2015] S.C.C.A. No. 481 D. CONCLUSION [50] Given the defence concession that the accused was in care and control of his car at the material time, and given that thechallenges to the admissibility of the breath results fail, Mr. Eastmond is guilty of the over 80 care or control charge. Released on December 10, 2018 Justice Russell Silverstein