R. v. Pulla, 2011 ONCJ 436

COURT FILE No.: Toronto Region Citation: R. v. Pulla , 2011 ONCJ 436 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) D. Emmami, ) for the Crown ) — AND — ) ) ) JOHN PULLA ) P. Leckey, ) for the accused ) ) ) ) HEARD: January 5, June 27, August 8, 2011 FELDMAN J.: [ 1 ] John Pulla entered not guilty pleas to charges of Operation Impaired and Exceed 80.

It is alleged that while having more than the legal limit of alcohol in his blood system he rear-ended a TTC bus. [ 2 ] The Crown called the arresting officer in support of its case and, in addition, adduced a videotape of the defendant’s breath testing at the police station. Mr. Pulla submitted himself to cross-examination on his affidavit to back up his claim that his Charter rights under ss. 8, 9, and 10(

b) were violated, all as part of a blended proceeding, with the weighing of the defendant’s testimony limited to issues raised in the Charter application. Mr. Pulla also argued that the police lacked reasonable and probable grounds to make an arrest, his breath tests were not taken as soon as practicable and there was a reasonable doubt on the evidence that his ability to drive was impaired by alcohol. [ 3 ] I must weigh the credibility of the witnesses and the evidence in making my findings of fact. I am mindful of the burden of proof on the Crown The Evidence [ 4 ] On October 19, 2009 at 5:30 a.m., P.C.

Darryl Guy and his escort were stopped at a red light in the outside lane on Comstock Rd. in Scarborough. A TTC bus was also stopped beside the police cruiser. The officer told the court he heard noise and then saw smoke from a collision in which the defendant’s pickup truck drove into the back of the bus sustaining significant front end damage. The circumstances of the accident permitted the inference of inattention. P.C. Guy described the truck as completely demolished and inoperable and agreed the two front air bags had deployed.

As the officer went over to the driver’s side of the truck, the accused stepped out. The time was 5:32 a.m. [ 5 ] P.C. Guy testified that he saw the defendant stumble in getting out of his truck, that he was unsteady on his feet, and, as well, unable to stand without supporting himself against the side of his vehicle. He recalled the accused said he was not hurt and that he refused the services of an ambulance. He said he did not observe signs of shock and relied for this in part on Mr. Pulla answering questions well and not seeming cold or unaware of his surroundings.

However, the officer conceded that the defendant’s lack of balance may have been caused by the effect on him of the impact of the accident or the air bags. [ 6 ] The officer also noted there was a strong odour of alcohol on the defendant’s breath and that his speech was extremely slurred. Mr. Pulla told the officer he had consumed 3 vodka and cranberry juice. [ 7 ] As a result of these observations and the inference that the unexplained collision may have been caused at least in part by the effects of alcohol, P.C.

Guy concluded he had reasonable and probable grounds to arrest the accused and did so, telling him the reason for it and, at 5:44 a.m, reading him his rights to counsel from the back of his notebook. The officer told the court that when asked if wished to speak to counsel now, the defendant said, no. He denies that Mr. Pulla said, “No, I don’t have a lawyer”. He told the court that had the accused said this, he would have later called duty counsel for him. The breath demand followed. [ 8 ] At 6:02 a.m., P.C. Guy left with the accused for the nearest station set up for breathalyser testing, arriving at 6:42 a.m.

He told the court he lost about 15 minutes of travel time because his GPS wasn’t working properly. On route, the officer saw that the defendant was upset and crying. [ 9 ] P.C. Guy informed the parading Sergeant that he had given the accused his rights to counsel and also told him he had access to free legal aid advice. The videotape of this process recorded the superior officer telling the defendant of his right to call a lawyer of his choice or duty counsel for free advice and that he could make reasonable use of a telephone. When asked if he understood, Mr.

Pulla shook his head in the affirmative. [ 10 ] After being paraded, the defendant was placed in a holding room for officer safety until the Intoxilyzer instrument was ready for use. He was taken to the breathalyser room at 7:15 a.m. Prior to the first test, the accused told the breath technician he had not spoken to duty counsel, but when asked if he wished to speak to a lawyer, the defendant said, “not at the present time, sir”. P.C. Guy

said that at no time did the defendant ask to speak with counsel or use the phone. [ 11 ] When brought in for a second test at 7:36 a.m., the defendant was asked how much he had to drink and said he was “2-3 drinks over”, including 3-4 vodka with water and ice at the end of his shift at work. He also reported having consumed 4 glasses of wine at home at 4-5 p.m. [ 12 ] Mr.

Pulla also told the breathalyser technician he had dropped off two friends after work and on his way home was exhausted and believes he fell asleep prior to driving into the back of the bus. [ 13 ] The truncated breath readings were 160 and 150 mgs, respectively. Defence Evidence [ 14 ] On October 19, Mr. Pulla left his work as a bouncer at a nightclub at 3:15 a.m. He testified to consuming 3-4 vodka and cranberry juice commencing at around 2 a.m. when the patrons began leaving.

Prior to his shift that began just after 10 p.m. he said he consumed 3 regular glasses of wine while at home. [ 15 ] The defendant told the court that after dropping off his co-workers he was driving home at 5:30 a.m. when he collided with the bus. He said the road conditions were dry despite the fact it was drizzling. He agrees that when investigated, he did not tell the arresting officer he was in shock because he says he was never asked, or that he was not feeling well as he was never given an opportunity, in my view of the evidence, a questionable assertion at best.

He says he did not indicate he was feeling shaken and dazed as he thought the feeling would go away, as it ultimately did. I view this self-serving evidence in the context of his having declined the offer of an ambulance. [ 16 ] Mr. Pulla also agreed he had slurred speech, but says that occurs when he is exhausted. He explained the smell of alcohol in his car as possibly the result of his having earlier broken up a fight at the bar.

This latter minimizing claim was unnecessary given his admission of drinking prior to leaving work. [ 17 ] The defendant says he knew he could call a lawyer, but denies, while at the roadside, telling the officer he didn’t want one, rather, he claims, indicating he didn’t have one.

Not sure the police would comply, he said he wanted a moment to consider the situation and so leaned on his vehicle, he explained, but instead claimed he was accused of being “wasted” by the officer who was not otherwise, in his view, paying attention to him. [ 18 ] The defendant told the court he felt overwhelmed, exhausted, sad and emotional for a variety of reasons, including long hours, the accident and the stress of the arrest, but says he is sure his 3-4 drinks had nothing to do with his emotional dissembling. [ 19 ] lt is clear on the videotape that when paraded the defendant was offered an opportunity to speak to counsel, although incomprehensibly he denies being asked.

At the same time he concedes he heard police discussing his right to a lawyer, but says he didn’t request one because he was too emotional to respond, a seemingly contrived assertion that is not apparent on the video recording. [ 20 ] While in the breathalyser room, Mr. Pulla was again informed of his right to speak in private to counsel, but responded, “not at the present time”, incongruously suggesting in testimony that he thought the police would tell him when he could make that call.

He says he didn’t want duty counsel and was “stuck” on having his own lawyer that he expected the police to provide without ever expressing himself in that regard. He denies being suspicious when required to provide breath samples without first speaking to counsel, but says he felt he had to first go through the process. He did not ask for counsel when told his readings were over the legal limit, nor did he raise the issue upon his release, behaviour more consistent with choosing not to speak to a lawyer. Credibility Findings in Relation to Charter Issues [ 21 ] I would rely on the evidence of P.C. Guy.

He was solicitous of, but appropriate in his dealings with the accused. He was not seriously challenged on the material issues of fact and was fair in conceding evidence where appropriate. [ 22 ] By contrast, I found the defendant’s evidence on some material issues of fact to be unreliable. On the evidence, I reject his testimony that he was never given an opportunity to indicate the purported effects on him of the collision and how he was feeling, particularly in light of his being asked if he needed an ambulance. I accept in this regard that the officer was mindful of possible injuries and made enquiries.

In relation to the slurred speech, the defendant may well have been tired, but it is significant that he also admitted having had a number of drinks prior to leaving the bar. [ 23 ] There is much about the defendant’s discussion of counsel that I find to be contrived and self-serving.

He is clearly wrong to indicate that while paraded he wasn’t asked if he wanted to speak with a lawyer and in my view of the evidence, including a review of the videotape, self-serving to suggest he was too emotional to ask for an opportunity to consult counsel, in the same manner he said that he wanted a moment while at the roadside to consider the issue of counsel and so leaned against his truck, all examples, in my view, of convenient evidence. [ 24 ] Additionally, with regard to the police offering the defendant an opportunity to speak with counsel, Mr.

Pulla’s spin about how he responded in the breathalzyer room when offered a chance once again to consult counsel, beggars common sense. On this evidence, including a review of the videotape, I reject the notion he was too emotional to respond while the police were discussing his rights in this regard.

As well, I don’t accept the illogical contention he was waiting for police to provide him with counsel without ever informing the authorities that he wanted his own, not duty counsel, or taking any steps, even up to the point of his release, to assert that right made available to him a number of times. [ 25 ] On the evidence I am not left in reasonable doubt that the defendant declined counsel both at the roadside and later at the station in circumstances where the informational component of his right to speak with counsel was apparent and a reasonable opportunity to do so was on offer.

Legal and Charter Issues (

a) Reasonable and Probable Grounds [26] It is clear on the evidence that P.C. Guy subjectively believed he had grounds to arrest the accused. Those grounds,however, must also establish on an objectively reasonable basis that the accused’s ability to operate a motor vehicle was impaired byalcohol: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254; R. v. Cooper, [1993] O.J. No. 501 (Ont. Prov. Ct.). [27] In Cooper, Justice MacDonnell indicated that a review of the officer’s belief involves more than a search for somecircumstance supporting that belief.

Rather, it is the totality of the circumstances known to the officer at the time of his or herinvestigation, including those both supporting and undermining the belief, which must be assessed to determine if the appropriatestandard has been met.

While the officer may rely on the cumulative impact of any relevant factors as circumstantial evidence ofimpairment, he or she must, as well, consider their shortcomings in the analysis. [28] The court must be satisfied there is an objective basis for the opinion, that is, whether a reasonable person placed in theofficer’s position would conclude there were reasonable and probable grounds. This is not to be viewed as an onerous threshold: R. v. Censoni, [2001] O.J. No. 5189, 22 M.V.R. (4th) 178 (Ont. Sup. Ct.).

Some deference should be paid to the ability of a trained policeofficer to draw inferences and make deductions that might well elude an untrained person: R. v. Jacques (1996), (SCC), 110 C.C.C. (3d) 1 (S.C.C.). [29] In concluding there are grounds for arrest, the officer must have a reasonable belief that there is more than slight evidenceof impairment affecting the accused’s functioning and ability to drive: R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d)380 (Ont. C.A.), affirmed (1994), (ON CA), 104 C.C.C. (3d) 160n (S.C.C.); R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta.

C.A.). [30] Where there is an unexplained accident, even when combined with a strong odour of alcohol, it is important to understandthat a conclusion the driver was probably impaired is not the only inference where a collision may be explained by factors other thanimpairment: R. v. Ruelland (1998), 37 W.C.B. (2d) 420 (Ont. C.J.) (Gen. Div.). [31] On the evidence in this case with regard to the totality of roadside information available to the investigating officer there isin my view an objectively reasonable basis to support a finding of reasonable and probable grounds for the arrest.

To the reasonableperson at the scene there would be no rational explanation for the collision in the circumstances in which it occurred. This importantinference is to be weighed together with the usual signs of impairment noted earlier, qualified by P.C. Guy’s acknowledgement that theimpact may have had some effect on the defendant’s balance.

Given the low threshold for reasonable and probable grounds in thecontext of the Stellato standard, I am of the view that the objective basis for the officer’s conclusion in this regard has been established. [32] Even were the objective basis questionable, and infringements of Charter sections 8 and 9 found, the available evidence insupport of reasonable and probable grounds would make this such a close case that on a Grant analysis [2009 S.C.R. 353] I would notexclude the breath readings on an s. 24(2) application: see R. v. Winski, [2002] O.J. No. 4522 (Ont. S.C.); R. v. Boek, 2005 ONCJ 306, [2005] O.J.

No. 5382 (Ont. C.J.), affirmed (Ont. S.C.). (

b) As Soon as Practicable [33] The onus is on the Crown under Code s. 258(1)©(ii) to prove that the breath tests were taken within a reasonably prompttime and that in doing so the police acted reasonably: R. v. Payne (1990), (ON CA), 56 C.C.C. (3d) 548 (Ont. C.A.); R. v. Letford (2000), (ON CA), 150 C.C.C. (3d) 225 (Ont. C.A.). The court should look at the whole chain ofevents, bearing in mind that the prosecution is not required to provide a detailed explanation of what occurred during every minute theaccused was in police custody: R. v. Vanderbruggen, (ON CA), [2006] O.J. No. 1138 (Ont. C.A.).

The statutory twohour limit from the time of the offence to the taking of the first test serves to encourage prompt police investigations and importantly, topreserve the scientific integrity of the breathalyser process: R. v. Deruelle (1992), (SCC), 75 C.C.C. (3d) 118 (S.C.C.); R. v. Campbell, [2007] O.J. No. 1261 (Ont. S.C.). Any unexplained or unnecessary delay must be seen in that context. [34] As noted earlier, Mr. Pulla was arrested at 5:44 a.m. and transported at 6:02 a.m., arriving at the police station at 6:42 a.m.

The 18 minutes spent at the scene, although unexplained, is unexceptional and not unreasonable. The breath demand, securing thedefendant in the back of the cruiser and arranging and waiting for a tow truck all take some time. [35] The 40 minute gap between departure and arrival at the nearest division with a breathalyser instrument is, however, asignificant one, 15 minutes of which was lost due to a faulty GPS.

Counsel submits that the court ought not to submit to police policyrestricting the number of stations with the appropriate technology because of limited resources causing such delay where he suggests onthe authorities that to acquiesce in this way is to permit others to impermissibly stretch the judicial definition of “as soon as practicable”and create the perception or risk of diminishing the scientific integrity of the breathalyser process. [36] In R. v. Bouchey (1998), 39 M.V.R. (3d) 125 (Ont. C.J.) (Gen.

Div.), the police took the accused past a police stationlocated only a few miles from the scene to a station located more than twenty-five miles away where a breathalyzer instrument wasavailable. Wright J. was of the view, following R. v.

Brigham, [1994] O.J. 3075, that there must be some flexibility in the judicialscrutiny of the police conduct to include rejection in some circumstances, for example, in rural settings, that there is only one machinefor a particular area. [37] In relation to this issue, the amount of time required here to get the defendant from the scene to the station, given the GPSflap, is close to the line. As counsel pointed out, a phone call could have provided directions.

At the same time, it is reasonable toaccept that in the real world financial and manpower resources can place some limit on the number of breath testing centres in thisjurisdiction. As an explanation was provided for this specific time frame, it is to be noted that it ultimately did not result in combinationwith other aspects of the investigation to fall outside the statutory two hours.

[38] At the police station, 33 minutes were taken up following the defendant’s arrival at the sallyport, admission to the bookingprocess and participation in the first breath test. There is no evidence how long it took to complete the parading, nor was any reasonprovided why it took until 7:15 a.m to turn over custody of the accused to the breathalyser technician.

The second breath sample wastaken 21 minutes after the first. [39] While there was no detailed explanation for the delay, to have the testing process commence here about one-half hour afterthe accused was brought into the station, given the administrative responsibilities of the officers and preparation for testing, in additionto security concerns, is acceptable in the circumstances. [40] The police could have been slightly more efficient in speeding up the investigation. The explanations for any delay couldhave been clearer. More centres for breathalyser testing would be preferable.

But in the circumstances here, given the practical realitiesin investigating and transporting detainees in this large jurisdiction, I am satisfied upon a review of the entire chain of events and in thecontext of the two hour limit that the police acted reasonably and that in light of the explanations provided the tests were taken in areasonably prompt time. © Right to Counsel [41] I have found that at the roadside the defendant was provided right to counsel, as well as cautioned, but declined that right. In that regard, I am assisted by the testimony of P.C.

Guay, which on all the evidence I accept as persuasive, that had the defendantindicated at the roadside he had no lawyer, as he alleges, the officer would have ensured that at the station his detainee had access toduty counsel. [42] As well, Mr. Pulla concedes he was aware during the booking procedure that the police were offering him an opportunityto speak with counsel or a free legal aid lawyer, but testified he was too emotional to respond beyond indicating he understood that right.

On all the evidence, including the videotape, I find this claim self-serving and reject the notion he was incapable of speaking up orasserting his interests. [43] I view in this context, Mr. Pulla’s seemingly qualified response to the breathalyser technician’s offer of an opportunity tospeak to counsel, one that serves to belie his claim that he misunderstood his s. 10(

b) rights and believed it was up to the police to informhim when he might speak with a lawyer. On the evidence, I reject this assertion as not credible and in the circumstances do not acceptthe submission that the defendant did not understand his right was immediate or that his waiver was neither clear nor equivocal, asrequired in R. v. Bartle, (SCC), [1994] S.C.J. No. 74 (S.C.C.) and discussed more recently in R. v.

J.W.C., 2011 ONCA550, at paras. 23-30. [44] As I find no breach, a consideration of Charter s. 24(2) is unnecessary and the application is dismissed. [45] The Charter application having been dismissed, the Crown on this evidence has met its onus of proof in relation to theessential elements of the Exceed 80 charge. There will be a finding of guilt. Operation Impaired [46] This offence under Code s. 253(

a) is made out by proof of any degree of impairment of one’s ability to drive ranging fromslight to great, a relatively low threshold: R. v. Stellato, supra. In R. v. Andrews, supra, Conrad J.A. noted the important differencebetween slight impairment of one’s functional abilities, as distinct from one’s ability to drive, the latter representing the appropriate test.

He went on to explain, at p. 402, that, “…in most cases, if the conduct of the accused was a slight departure from normal conduct, itwould be unsafe to conclude beyond a reasonable doubt that his ability to drive was impaired by alcohol”. [47] That is not this case. P.C. Guay observed the defendant stumble while getting out of his car and noted he was unsteady onhis feet and unable to stand without supporting himself against the vehicle. The officer also smelled a strong odour of alcohol on theaccused’s breath and noted his speech to be extremely slurred. In addition, Mr.

Pulla’s emotions were at times labile. [48] This evidence is qualified by the possibility the defendant’s balance was affected by the collision, its inferentialsignificance diminished somewhat by the fact that the officer saw no signs of shock, in addition to the defendant refusing the offer of anambulance.

I consider, as well, the defendant’s reasonably normal functioning apparent in the videotape recording of the booking andbreathalyser procedures. [49] The evidence of impaired indicia is, however, enhanced in its import when weighed together with the collision and theunexplained circumstances surrounding its occurrence.

There is no rational reason for the accident beyond inattention or diminishedmotor skills, both of which permit the reasonable inference on all the evidence that the defendant’s ability to drive was affected byalcohol. [50] It is my view that on all the evidence, the prosecution has met its onus of proving that the accused’s ability to drive wasimpaired by alcohol. In the result, there will be a finding of guilt. [51] As these are related delicts, there must be a stay of one of the findings of guilt. The Crown has asked for a stay of theExceed 80 charge without objection by the defence.

That charge will be stayed.

Released: August 15, 2011 Signed: “Justice L. Feldman”