R. v. Leach, 2012 ONCJ 363

Citation: R. v. Leach , 2012 ONCJ 363 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN Ñ AND Ñ JOHN LEACH ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) D. OÕConnor For the Crown P. Dotsikas For the Defendant Heard: May 29, 2012 REASONS for JUDGEMENT MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] There was a three-car fender-bender in crowded traffic on Lakeshore Boulevard in Toronto on the afternoon of June 11, 2011. John Leach, the defendant, was the driver of the third vehicle. He was arrested for driving while his ability was impaired by alcohol soon after the police arrived.

Subsequent breath tests led to a further charge of driving with an excessive blood-alcohol concentration (BAC). [ 2 ] As in every criminal trial, it is the CrownÕs burden to prove each essential element of the charges and to a standard that eliminates any reasonable doubt.

In this regard, the defence says that the evidence of impairment falls short of this requisite standard and that the evidence of the delay between the defendantÕs driving and the taking of his breath tests is so uncertain as to preclude reliance on a statutory presumption on which the Crown here depends to establish the defendantÕs excessive BAC.

As regards this latter charge, the defendant further argues, in the alternative, that his s. 8 Charter rights to privacy were violated when the police demanded he provide a sample of his breath for the purposes of BAC determination without having Òreasonable groundsÓ to make such demand. The defence bears the burden of proof, on the balance of probabilities, with respect to establishing this latter claim and any remedy that may flow from the constitutional infringement, if found. B. EVIDENCE

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a) Introduction [ 3 ] The defendant did not testify at his trial. The arresting officer (PC Fred Teatero) and the breath technician (PC John Andrews) did, as did the driver of the most forward of the three vehicles involved in the accident (Philip Lee). I begin with the latterÕs evidence. (

b) Philip LeeÕs Evidence [ 4 ] Lee was driving westbound on Lakeshore. The traffic had been Òbumper to bumperÓ for several miles and slowed to a halt around the CNE grounds between 4:00 and 4:30pm. Lee felt a rear impact soon after he stopped. A white Hyundai had slid into the back of his car. The Hyundai had, in turn, been rear-ended by a green pick-up truck. The defendant was the driver of the pick-up. All three vehicles moved from the curb lane onto the curb. The damage to LeeÕs car was ÒsuperficialÓ. [ 5 ] The woman driving the Hyundai had a young child and was very upset.

After trying to calm her down and exchange insurance information, Lee approached the defendant and requested his insurance documentation. He could smell alcohol on the defendantÕs breath. Further, the defendant appeared to have difficulty locating his insurance papers and writing things down. He dropped his pen and had difficulty retrieving it. Lee formed the opinion that the defendant, while not drunk, had been drinking. The defendant was not swaying or staggering. [ 6 ] At his urging, the woman driver called 911 and reported the accident. This was, in LeeÕs estimation, some 15 to 20 minutes after the collision.

Despite being advised of this call, Lee had no concern that the defendant would take off before the police responded. According to Lee, the police arrived about 25 to 30 minutes after the 911 call; this, he testified, was Òcloser to 5:00pm than 6:00pmÓ. Lee reported his observations and opinion of the defendant to the attending officers. In cross-examination he claimed, for the first time, said that the defendant had some difficulty walking. He did not mention this to the police during his on-scene statements to them. The defendant, says Lee, was cuffed by the police Òwithin 30 minutesÓ of their arrival. (

c) The Police Evidence [ 7 ] PC Fred Teatero received a radio dispatch about the accident, including information about the smell of alcohol on a driverÕs breath, at 5:49pm. A tow truck was already on the scene when he arrived five minutes later. There were no injuries, but Jenny, the driver of the middle vehicle, was very upset and Teatero spent some time attending to her. The defendant, when spoken to, identified himself as the driver of the truck. Lee asked to speak to Teatero in private and advised him that the defendant smelled of alcohol.

Teatero immediately noticed a strong smell of alcohol emanating from the defendantÕs breath when he first spoke with him and his eyes were glassy. He was also having trouble removing his documents from his wallet. In answer to TeateroÕs questions, the defendant explained that he was coming from a Blue Jays game where he had consumed one beer.

Based on the information he received, his observations of the defendant and the accident, Teatero formed the opinion that the defendantÕs ability to drive was impaired by alcohol and arrested him for this offence at 5:57pm, three minutes after he arrived on the scene. [ 8 ] Teatero listed seven factors or ÒgroundsÓ for the arrest: 〈 The radio call advising that alcohol was involved in the accident; 〈 LeeÕs report of the smell of alcohol on the defendantÕs breath; 〈 The officerÕs own observations of the odour of alcohol; 〈 The defendantÕs admission of alcohol consumption; 〈 The defendantÕs difficulty extracting his driverÕs license from his wallet; 〈 The defendantÕs glassy eyes; and, finally, 〈 The occurrence of the accident.

Teatero had no concerns regarding the defendantÕs balance, speech or mobility. The defendant, he said, was responsive to police questions both on the scene and at the station. The officer agreed in cross-examination that the first four of his enumerated grounds all spoke only to the consumption of alcohol. He also agreed that Òglassy eyesÓ could be attributed to many causes other than alcohol impairment, including fatigue and allergies. Teatero volunteered that he had never seen a sober driver have difficulty removing his driverÕs license from the plastic sleeve of a wallet.

The defendant, he agreed, did in fact extract the license as he had handed it to Teatero before his arrest and, so it appears, within a minute or, at most, two of the officerÕs request for it. [ 9 ] Teatero read the right to counsel and the conventional cautions to the defendant from the back of his memo book at 5:58pm, followed by an erroneous breath demand and, again, the defendantÕs right to counsel. At 6:05pm Teatero read the correct approved instrument demand to the defendant. No issue is taken with the wording of the final demand or the framing or timing of the cautions or the defendantÕs s. 11(

b) rights. [ 10 ] Teatero escorted the defendant from the scene of the accident about 6:10pm and arrived some eight minutes later at Traffic Services Division, the location of the closest on-duty breath technician. The defendant was re-advised of his right to counsel, paraded at 6:24pm and spoke with duty counsel for six minutes beginning at 6:51pm. Proper samples of his breath were taken at 7:05 and 7:28pm, with respective BAC readings of 120 and 116 milligrams of alcohol in 100 millilitres of blood Ð both well in excess of the legal limit.

The essential notices and certificates were served at 8:30pm and the defendant was released from the station on a Promise to Appear at 9:04pm. [ 11 ] A DVD of the defendantÕs breath tests and his appearances at the booking desk display a man who presents as somewhat

slow or thick-speaking. He does, however, appear both responsive and coherent. PC John Andrews, the qualified breath technician whoconducted the breath testing, described the defendant as having an odour of alcohol, bloodshot and glassy eyes, slow but not slurredspeech and a flushed face. Andrews allowed that the defendantÕs face, as he appeared in court, was also Òpink and flushedÓ. Thedefendant was polite and clean. Andrews formed the opinion that the effects of alcohol on the defendant were ÒmoderateÓ but that hisability to drive was impaired, although not extremely or obviously so. C. ANALYSIS (

a) Introduction [12] As noted earlier, the position of the defence is that the evidence led by the Crown fails to establish either impairment or thefactual predicate for reliance on the presumption of identity to the requisite legal standard and that, as a result, the defendant should beacquitted of both charges. Should I otherwise be prepared to find the defendant guilty of driving with excessive BAC, the defence, in thealternative, asks that I exclude the evidence of his Breathalyzer readings on the grounds that the police breath demand and the seizuresthat followed violated the defendantÕs Charter s. 8 rights. (

b) Impaired Driving [13] There is no definition of ÒimpairmentÓ in the Criminal Code. It is a factual question that must be decided on the evidence ineach case: R. v. Stellato, infra; Graat v. The Queen (1982), (SCC), 2 C.C.C. (3d) 365 (S.C.C.), at 400-401. The criticalquestion, however, is whether the requisite impairment occurred, not the degree of any impairment. As said by the Court of Appeal in R.v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380, at para. 10; affd. (SCC), 90 C.C.C. (3d) 160(S.C.C.), adopting the language of the Prince Edward Island Court of Appeal in R. v.

Campbell (1991), (PE SCAD),87 Nfld. & P.E.I.R. 269, at 320: It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether hisability to drive is greatly or only slightly impaired. [Emphasis added.] And later, at para. 14: [B]efore convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehiclewas impaired by alcohol or a drug.

If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as toimpairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight togreat, the offence has been made out. [Emphasis added.] [14] No defence challenge is taken to my concluding that the defendant consumed alcohol at some point prior to the accident onJune 11, 2011. The core issue, he says, is not whether the defendant drank and drove but whether that drinking impaired his ability todrive.

The legal basis for this argument is set out in the oft-quoted case of R. v. Andrews (1996), 1996 ABCA 23 , 104 C.C.C.(3d) 392 (Alta. C.A.), at paras. 19, 20, 24, 27; leave to appeal refd. 106 C.C.C. (3d) vi (S.C.C), which adopts, explains and applies thereasoning in Stellato: [I]t is so important not to deal with the issue of impairment separate from impairment of one's ability to drive. Stellato must not beunderstood to mean that a person who has anything to drink and then drives a motor vehicle commits the offence under s. 253(a) [now s.253(1)(a)]. Nor does it mean any lack of sobriety is sufficient.

É The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused'sability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction. É É [Stellato] speaks to degree of proof. In other words, as framed in Stellato, the conduct must be of such a nature that an impairment ofthe ability to operate a vehicle (be it slight or marked impairment) is proven beyond a reasonable doubt. É É It is not deviation from normal conduct, slight or otherwise, that is in issue.

What is in issue is the ability to drive. Wherecircumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidenceindicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment ofthe ability to drive, slight or otherwise. [15] As has been often said, one must have regard to the entire constellation of circumstances to determine the question of whetheran accusedÕs ability to drive was impaired by alcohol.

There is, here, no evidence of gross impairment Ð egregiously aberrant driving,difficulty standing or walking or severely slurred speech, for but three examples Ð that sometimes characterize prosecutions for thisoffence. At highest, the evidence incriminating the defendant as advanced by PC Teatero amounts to the following: evidence of theconsumption of alcohol; some difficulty retrieving his license from his wallet (although the defendant did so, unaided, within a minute orso of it being requested); glassy eyes, and his involvement in an accident.

PC AndrewsÕ only additions to this inventory of indicia arebloodshot eyes and a flushed face, which latter observation, he concedes, is no different than the observation he made of thedefendantÕs appearance in an apparently sober state while in court on the day of trial. I note that AndrewsÕ opinion as to thedefendantÕs impairment is cautious, advanced a couple of hours after the accident and formed after he had completed the Breathalyzertests establishing the defendantÕs legally elevated BAC.

As to TeateroÕs ÒgroundsÓ, apart from the qualifications I reviewed earlier Inote only that his reliance on the accident as a significant factor appears particularly unconvincing in the instant scenario. As I

understand the evidence, the defendant initiates a three-car rear-ender (with no consequent injuries and only minor vehicular damage) when bumper-to-bumper traffic comes to a sudden stop.

This is a commonplace accident; while, admittedly part of the calculus of impairment its weight is much less than that which might be assigned to a motor vehicle accident in a different context, one where, for example, the collision either is accompanied by patently hazardous driving behaviour or, unlike the situation before me, is completely unexplained or qualified by the surrounding circumstances. [ 16 ] Philip LeeÕs observations of the defendantÕs demeanour and conduct must also be considered.

His sudden suggestion in cross-examination that the defendant had difficulty walking is inconsistent with his evidence in chief, his prior statements to the police, the evidence of the two police officers who testified at trial, and my own observations of the defendantÕs videotaped behaviour at the police station. I reject LeeÕs critique of the defendantÕs mobility in view of these frailties and the contrary evidence, which I do accept.

The impairment of the defendantÕs fine motor skills, as reflected in LeeÕs evidence respecting his use of a pen, are of some weight, but are not echoed in the evidence of PC Andrews who closely observed the defendant as he followed his instructions in the breath room and whose evidence I find more reliable. In the end (and I shall return to this theme), I find Lee the kind of witness who did not allow the sketchiness of much of his recall to get in the way of doing his best to assist the Crown. [ 17 ] Driving demands a high degree of intellectual and motor-co-ordination. As I said in R. v.

Selvarajah, 2011 ONCJ 468 at para. 17 , The ability to drive necessarily encompasses a matrix of neuro-motor skills that is far more complex than that involved in more mundane tasks such as walking a dog or operating a cellphone. The task of the trier of fact is to determine, on the basis of what is almost always a constellation of circumstantial evidence, whether the inference of an alcohol-induced impaired ability to drive is satisfied beyond a reasonable doubt.

Speeding itself is unlikely to establish such inference; nor, standing alone, would an accident likely suffice; nor, by way of further example, would an odour of alcohol on a driverÕs breath. The Alberta Court of Appeal made a very similar point in Andrews , supra, at para. 25 , more than fifteen years ago: É The question is simply whether the totality of the accused's conduct and condition can lead to a conclusion other than that his or her ability to drive is impaired to some degree. Obviously, if the totality of the evidence is ambiguous in that regard, the onus will not be met.

Common sense dictates that the greater the departure from the norm, the greater the indication that the person's ability to drive is impaired. For instance, if one is assessing driving conduct, exceeding the speed limit is something that many people do whether or not they have consumed alcohol. Thus, that factor would naturally be less indicative of one's ability to drive being impaired, than would weaving back and forth from lane to lane, or travelling on the wrong side of the road.

In the end the test remains, is the ability to drive of the person impaired [by alcohol]? [ 18 ] The evidence of impairment may have afforded PC Teatero sufficient grounds to make an approved screening device demand of the defendant. It may also have objectively justified an arrest for the offence of impaired driving, although I refrain here from determining that issue. However, viewed globally and contextually the evidence of alleged indicia of impairment falls short of satisfying me beyond reasonable doubt that the defendantÕs ability to drive was impaired.

As said in Andrews , ÒifÓ, as I indeed find, Ò the totality of the evidence is ambiguous in that regard, the onus will not be metÓ. Accordingly, I find the defendant not guilty. [ 19 ] By way of addendum only, I note that Crown counsel did not seek to rely on evidence of the defendantÕs Breathalyzer readings to support his prosecution for impaired driving. Even if these elevated BAC readings are admissible at trial (a matter to which I now turn), they cannot, in my view, here add anything of substance to the calculus of impairment: see R. v. Veljovic , [2012] O.J. No. 2396 , at para. 20 . (

c) Driving with an Excessive BAC [ 20 ] One challenge to the CrownÕs successful prosecution of Òover 80Ó cases is persuading a court that a driverÕs BAC at the time of the alleged offence is the same, if not higher, than it was at the time it was analyzed and documented as Òover 80Ó on an approved instrument such as a Breathalyzer. As I explained in R. v.

Ventura , 2011 ONCJ 31 , at para. 16 : One method by which the Crown can endeavour to establish this critical fact (that is, the defendantÕs BAC at the time he was operating or in care or control of the vehicle) is to call a qualified expert, usually a toxicologist, to express an expert opinion on the matter. A much simpler method is afforded the Crown through what is known as the Òpresumption of identityÓ as set out in s. 258(1)(c).

Subject to a narrowly circumscribed basis for rebuttal, as long as the statutory pre-conditions are met the BAC results of a Breathalyzer analysis Òis conclusive proofÓ that the defendantÕs BAC at the time of the analysis and at the time when the offence was alleged to have been committed are identical.

One of the necessary pre-conditions to this evidentiary shortcut requires the Crown to establish that, É each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time É . [Emphasis added.] [ 21 ] Here, the Crown has called no expert evidence. Instead, it relies on the presumption of identity to establish the defendantÕs requisite elevated BAC at the time, as particularized in the Information, he Òdid operate a motor vehicleÓ.

No application was brought to amend the wording of the count so as to substitute Òcare or controlÓ for ÒoperateÓ nor was the argument joined on any issue other than that baldy advanced by the defence: that is, that the evidence led at this trial fails to establish to the necessary standard of proof beyond reasonable doubt that the first sample was in fact taken from the defendant Ònot later than two hoursÓ after he is alleged to have committed the offence of impaired operation of his pick-up truck. [ 22 ] The neat factual question is how much time actually passed between the last time the defendant drove his truck before his first breath test and the time of that first breath test.

The police evidence as to the timing of the latter event is not disputed: the first breath sample was taken from the defendant at 7:05pm. Accordingly, in order to rely on the presumption of identity the Crown must establish that the defendant drove his truck at some point after 5:04pm. [ 23 ] The evidence bearing on the temporal gap between the defendantÕs last period of driving and his first breath test is vague and

at least indirectly conflicting. Philip Lee recalls the accident occurring between 4 and 4:30pm, although he admits to some uncertainty as to times and no recall of the exact date. The three vehicles were quickly moved off the road and onto the curb (although there is no evidence as to how quickly) and the defendant thereafter awaited the arrival of the police outside his pick-up truck. There is no evidence that he ever re-entered his truck let alone drove it.

Fifteen to twenty minutes passed, says Lee, before the woman driver placed a 911 call and the police did not respond to that call until some 25 to 30 minutes later, arriving at some time closer to 5:00pm than 6:00pm.

Accepting, for analytical purposes only, LeeÕs estimate of the temporal window during which the accident occurred, but for removing the truck from the highway the defendantÕs last operation of his motor vehicle was some 2½ to 3 hours before his first breath test Ð well in excess, under either calculation, of the two-hour limit extended the Crown to invoke reliance on the presumption of identity. [ 24 ] LeeÕs memory of the timing of the critical events is almost impossible to square with that of PC Teatero. On LeeÕs estimates, the police did not arrive until sometime between 4:40 and 5:20pm.

No real challenge, however, is taken to Teatero fixing his arrival to 5:54pm Ð some 34 to 74 minutes after the window advanced by Lee. I have no difficulty accepting the evidence of an experienced police officer such as Teatero over that of a member of the public who was not taking notes and whose recall was admittedly vague in some areas. However, there is still no evidence that directly contradicts LeeÕs as to the duration of the delay between the accident and the arrival of the police.

Accordingly, if one subtracts LeeÕs estimate of a 40 to 50 minute delay from TeateroÕs 5:54pm arrival one is left with an accident time of 5:04pm to 5:14pm. The earlier of these two estimates falls, if only by a mere minute, outside the limit of statutory grace the Crown must establish to secure admission of the breath test results in this case. [ 25 ] Crown counsel rightly urges me to consider the time Teatero received the radio dispatch to attend at the accident in determining the reliability of LeeÕs evidence in this regard.

Teatero, as earlier noted, testified that he was first alerted to the accident at 5:49pm. Given that the accident occurred on a busy highway and involved an allegation of intoxication, Crown counsel asks me to infer that the dispatch very likely occurred within minutes of receipt of the 911 call.

Even allowing for a post-accident delay of 20 minutes before that call was made (reflecting LeeÕs broadest estimate) and for a few minutes for the dispatch to be transmitted, the accident, and related impugned driving, then occurred at approximately 5:25pm or, in any event, well after the outer limit of 5:05pm afforded by the presumption. [ 26 ] This is a facially attractive argument, but one that ultimately requires me to substitute speculation for evidence-founded inference drawing. I accept PC TeateroÕs uncontradicted evidence as to the time he first received a dispatch about the accident: 5:49pm.

I have no evidence before me, however, as to when the Toronto Police Service (TPS) communications division first received the 911 call. I have no evidence as to what, if any, competing demands for police services obtained at the time and whether the call was immediately dispatched to officers on patrol. Even if there was an immediate dispatch, I have no evidence as to whether it was radioed to the entire motorized police force or to select officers believed to be in the vicinity.

If the latter, I have no evidence as to the response of those selected officers and, more specifically, whether the dispatch to Teatero was part of that alert or a secondary and later dispatch when the selected first responders were unable to promptly attend. Because no evidence was called on the point, I do not even know whether my efforts to mentally reconstruct the response of the communications

section conforms to TPS protocol or its conduct on that day. And, further, I bear in mind that the event, as likely reported, may have been less urgent than many accident reports given the absence of any injuries or serious damage. In the end, I decline to speculate as the timing of the 911 call (and, accordingly, the accident) from the time Teatero says he first received the dispatch to attend.

I am left, instead, with the imprecision of LeeÕs recall. [ 27 ] The presumption of identity is frequently described as a statutory shortcut to proving the critical averment in prosecutions such as this: that an accusedÕs BAC was over the legal limit at the time he or she was driving a motor vehicle. As I have already commented, it is not the only means available to the Crown to establish this essential element of the offence.

An expert witness, typically a toxicologist, can be called to Òrelate backÓ an accusedÕs breathalyzer readings to the time of the driving and, indeed, this approach is frequently employed in situations where delays foreclose reliance on the presumption. No expert, of course, was tendered in this case. Nor were any witnesses other than Lee called as to the timing of the accident Ð not, for example, the woman driver of the sandwiched Hyundai or the tow truck driver who arrived sometime before PC Teatero. Nor was evidence called as to the time the 911 call was received by the TPS.

And, whether or not ultimately admissible, no notice was served that the Crown intended to rely on internal TPS documentation recording the timing of the 911 call and the police response. [ 28 ] Scrupulous compliance is required when relying on statutory presumptions. Has the Crown met its burden in this regard? Not in my view. I appreciate that LeeÕs evidence as to the timing of the critical events is somewhat vague, but there is no other evidence on the issue and no reason to completely reject it. Further, there is no reason to infer that Lee over- rather than under-estimated the delays.

I appreciate, as well, that a couple of minutes, at least, likely passed between the collision and the time the defendant drove his truck off the highway and onto the curb. However, the absence of evidence as to exactly when this occurred and the uncertainty of LeeÕs reconstruction of the windows of delay, and particularly their outer margins, leave me unsettled as to whether this conduct fell within or without the two-hour bracket. Put bluntly, I am left with a reasonable doubt as to whether the defendant drove within the two-hour period that preceded the taking of his first breath sample.

Accordingly, I find the Crown cannot rely on the presumption of identity. In the result, there is no evidence that the defendantÕs BAC at the time of his operation of his motor vehicle exceeded the legal limit. D. CONCLUSION [ 29 ] For the reasons I have just developed, I find the defendant not guilty of both counts. Released on June 8, 2012 __________________________ Justice Melvyn Green