R. v. Morin, 2010 ONCJ 726

Information No. 092115 Citation: R. v. Morin , 2010 ONCJ 726 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. ROBERT MORIN ********** R E A S O N S F O R J U D G E M E N T BEFORE THE HONOURABLE JUSTICE R.E.W. CARR, on November 23, 2010, at TIMMINS, Ontario **********

APPEARANCES : Mr. Cox Counsel for the Crown Mr. Sloan Counsel for Robert Morin CARR, J. (Orally): The defendant, Robert Luke Morin, stands charged with having committed two criminal offences; specifically, impaired operation of a motor vehicle and operation of a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood. The offences allegedly took place at approximately two o’clock a.m. on Sunday, November 29 th , 2009 on Cedar Street South in the City of Timmins. Constable M.

Tambeau of the Timmins Police Service was westbound on Second Avenue at the intersection of Second and Cedar Street when he noticed a motor vehicle in the parking lot on the southwest corner of that intersection. There are bars within a short walking distance from the parking lot. As he sat at the intersection he observed a vehicle in the parking lot backing out of its parking spot and then stopping suddenly in the lot. The officer’s suspicions were aroused given the time – two a.m., place – close to bars, and the sudden stop. He thought that the driver may have seen the cruiser and stopped for that reason.

Officer Tambeau turned left onto Cedar Street and proceeded south to the entrance to the parking lot which he entered, but as soon as he approached the other vehicle it suddenly began to move out of the parking lot and onto Cedar Street and in so doing drove over the curb. Officer Tambeau backed up, turned on the emergency lights and the defendant – who was driving the other vehicle, pulled over immediately on the right side of Cedar Street South – some 60 or 70 feet from where he had left the parking lot.

The defendant driver was told that he was being stopped because of his suspicious behaviour including his driving over the curb. This was at 1:59 a.m. The defendant told Officer Tambeau that he saw the officer coming and wanted to get out of his way and for that reason proceeded onto Cedar Street. As the defendant was speaking, Tambeau could smell an “obvious” (as opposed to “slight”) odour of alcohol on the defendant’s breath.

The defendant denied having had anything to drink and then Officer Tambeau said this at 2:01 a.m.; “...I then asked him that because I can smell the odour of alcohol on his breath I requested that he attend my vehicle so that I can administer a roadside screening test.”

He reiterated in cross-examination much the same, saying the following; “While he was sitting in his vehicle, I asked him to come out of the vehicle and come to my vehicle so I can administer the roadside screening tests. I was just advising him that I needed him to come out, come to my vehicle so I could do the test.” Upon cross-examination by Mr.

Sloan as to whether or not the officer actually told the defendant why he was being asked to come to the cruiser, the officer replied; “I would not have a person come out of the driver’s seat without him knowing why I’m asking him to get out of the vehicle.” After he was asked to leave his vehicle to attend the cruiser, the defendant exited his motor vehicle but walked some 15 to 20 feet in a direction away from the cruiser but then stopped, turned and walked back and to the cruiser.

Officer Tambeau radioed to headquarters for the roadside screening device to be brought to him from headquarters at 2:01 a.m. – some two minutes after he stopped the defendant’s vehicle. Officer Tambeau knew that, “the A.S.D. unit would be delivered very shortly because I was told that Sergeant McGee was going to be picking it up and Sergeant McGee had driven by not long prior. He expected the machine to be delivered within three to six minutes,” he said.

A formal section 254(2) demand for the roadside screening device test was made at 2:05 a.m. when the defendant was in the cruiser and it read as follows; “I demand that you provide a suitable sample of your breath directly into an approved screening device to enable the proper analysis of your breath to be made and that you accompany me for the purpose of enabling the sample to be taken.” The roadside screening device arrived at 2:05 a.m. Officer Tambeau instructed the defendant as to how a breath sample should be provided and the defendant complied registering a “fail” at 2:07 a.m.

At this time, the section 254(3) demand for the breathalyzer test was read, the defendant was cautioned, rights to counsel pursuant to

section 10(

b) of the Charter were given and he was placed formally under arrest. The defendant was taken to Timmins police station. He did exhibit other signs of impairment – red and glossy eyes, swaying as he walked and strange behaviour such as stretching, heavy swallowing (whatever that is), drinking copious amounts of water and bending over, et cetera . It is not clear as to when this behaviour started, i.e., when the glossy, red eyes were noticed, therefore, it has not been considered as being part of the package of factors which grounded the officer’s suspicion that the defendant had alcohol in his body.

The defendant ultimately provided two breath samples which confirmed that his blood alcohol ratio was over the prescribed maximum of 80 milligrams of alcohol in 100 millilitres of blood at the time he was operating the vehicle. Issue Number 1 : Mr. Sloan, for the defendant, argues that Officer Tambeau did not have the requisite reasonable grounds to suspect that the defendant had alcohol in his body when the demand for an approved screening device sample was made. In my view, Officer Tambeau clearly had the reasonable grounds for this suspicion.

He testified that he did have the suspicion and the suspicion is certainly justifiable from an objective point of view bearing in mind the time – 2 a.m., location of the vehicle – near many bars, the unusual driving, that is the sudden stop and sudden starting again of the defendant’s motor vehicle – going over the curb, and most significantly the obvious smell on the defendant’s breath when the officer first approached the defendant while he, that is the defendant, was sitting behind the wheel. By the way, in the Thorburn decision, proffered by Mr.

Sloan [2009] OJ No. 5812 , the investigating officer was not certain as to where

the smell of alcohol was coming from in the vehicle that is from the defendant or from his passengers. This is certainly not the case at bar. Issue Number 2 : Mr. Sloan also argues that the 2:01 a.m. demand was no demand at all insofar as section 253(2) is concerned. Therefore, did the request of Officer Tambeau at 2:01 to the defendant constitute a demand pursuant to section 253(2)? The Ontario Court of Appeal dealt with this issue in the case of R. v Torsney 2007 ONCA 67 (CanLII) , [2007] O.J. No. 355. In this case the court held as follows; “We agree with the

summary conviction appeal judge that the missing word ‘forthwith’ did not render the demand invalid. The demand need not be in any particular form, provided it is made clear to the driver that he or she is required to give a sample of his or her breath forthwith. This can be accomplished through words or conduct, including the ‘tenor’ [of the officer’s] discussion with the accused...What is crucial is that the words used be sufficient to convey to the detainee the nature of the demand...In this case, the demand was...clear and the appellant understood.

He knew that he was to provide a sample as soon as the machine arrived and he responded accordingly.” In my view, there can be no doubt that Officer Tambeau told the defendant, in the case at bar, that (1) because of the odour of alcohol on the defendant’s breath, (2) the defendant was to attend the officer’s cruiser, and (3) so that the officer could administer a roadside screening test. Implicit in this request/demand was that (

a) the roadside screening test would be administered to the defendant, and (

b) it would take place in the cruiser within a short period of time, that is to say, forthwith. I should add that in the case of R. v Seo 1986 CanLII 109 (ON CA) , [1986] OJ No. 178, the Ontario Court of Appeal held that “forthwith” does not mean immediately and is the same as “forthwith or as soon as practicable”. I am of the view that the demand at 2:01 a.m., therefore, qualifies as a proper section 254(2) demand and given that it was made two minutes after the traffic stop, it was certainly made in a timely fashion.

Issue Number 3 : Did the Crown establish that the roadside screening device used at the scene was an “approved” roadside screening device? Mr. Sloan, for the defendant, did not posit this in his Charter application but argued same after the Crown’s case was in. To be fair to Mr. Sloan, the issue was, in all likelihood, not apparent until the Crown’s case was completed and Mr. Sloan was alert and argued that. Mr. Sloan argued that there was no evidence proffered by the Crown to establish that the device was approved as registered by

section 253(a). Mr. Sloan is correct in that Officer Tambeau did not specifically state that the device was approved nor was he asked that question directly by Crown counsel, but it is clear from questions asked by both lawyers with respect to matters collateral to this issue and by answers given by Officer Tambeau to these questions that he, that is Officer Tambeau, believed that the instrument was an approved instrument. “Question [by Mr. Verbeek]: Now what were you doing between the time that Mr. Morin was in your vehicle to the time that the approved screening device arrived?

Answer: I basically had the door open and I was monitoring Mr. Morin in the back seat of the vehicle. Question: What time did the A.S.D. unit arrive? Answer: Um, I don’t have that in my notes but I would imagine that it would have arrived at approximately 2:05 which is when I would have made the demand...” Question by Mr. Sloan: “Question: Do you remember being, when you asked for the A.S.D. to be brought over, if anybody told you how long that the delay would be?

Answer: No, nobody did.” In an answer to another question by Mr. Sloan, Officer Tambeau said; “...I did know that the A.S.D. unit would be delivered very shortly because I was told that Sergeant McGee was going to be picking it up and Sergeant McGee had driven by not that long prior to.” And once again Mr. Sloan asks; “...You didn’t say anything and you have no notes in your notebook about the calibration of this approved screening device? [emphasis mine] Answer: I do have an entry in my notebook.

It was tested on November 15 th ...” It is clear, therefore, that Officer Tambeau believed that the roadside screening instrument was “approved” and counsel for the Crown and defence appreciated and understood this fact – when I say “this fact” I mean the fact of the officer’s belief. Having said that, remember that when the roadside screening device arrived at 2:05 another more formal demand was made requiring, among other things, that the defendant provide a suitable sample of his breath directly into an APPROVED screening device.

At this stage I rely upon the formal 2:05 a.m. demand, not for the purpose of confirming compliance with section 253(2), i.e., the demand was made, but only insofar as it speaks to the issue of an approved device. In the case of R. v Gundy , Rosenberg, J.A. for the Ontario Court of Appeal said this; “Where, as here, the officer states that she made a demand that the motorist provide a sample for analysis by the approved screening device, surely the trier of fact can reasonably infer that the officer used an approved device. That was the holding of the trial judge in this case and I agree with that decision.

As Langdon J. said in R. v James , [1995] O.J. No. 190 (Gen. Div.) at para. 5 , ‘what is the likelihood that the O.P.P. would supply its constables with an unapproved device with which to enforce the R.I.D.E. programme?’” Issue Number 4 : Was the Intoxilyzer demand made as soon as reasonably practicable? Mr. Sloan, for the defendant, in his notice of Charter challenge, placed before the court his concerns that the section 254(3) breath test was not administered as soon as practicable.

It is clear to me that the process moved along with realistic and practical alacrity and that in all the circumstances the section 254(3) test was, in fact, administered in a fashion that could best be described in the circumstances as having been conducted as soon as practicable. This issue was not pursued by Mr. Sloan to any extent in his submissions in any event. Because the seizure of the defendant’s breath at roadside and the more cumbersome Intoxilyzer testing at the police station were warrantless searches, the Crown bears the burden of establishing compliance on a balance of probabilities.

In my respectful view, the Crown has done so. For the purpose of this analysis I assume that the issues were all framed within the context of a Charter challenge altogether it is not altogether clear that they all were so framed. However, I am proceeding on that basis insofar as the burden of proof is concerned. That is to say the burden of proof is on the Crown.

In the event that I am wrong with respect to any of the issues discussed and if, in fact, a Charter breach was established – in my respectful view of the evidence so obtained, would not be excluded pursuant to section 24(2) of the Charter, bearing in mind the principles set forth in the Grant decision 2009 SCC 32 (CanLII) , [2009] SCJ No. 32, that is, (

a) seriousness of the charge infringing state conduct, (

b) impact of the breach on the rights of the defendant, and (

c) society’s interest in the adjudication of the case on the merits. So there will be a finding guilty. I’d like to thank counsel.

********** Transcript Ordered: November 26, 2010 Transcript Completed: December 11, 2010 Ordering Party Notified: December 13, 2010