R. v. Driffield, 2011 ONCJ 596

COURT FILE No.: Toronto Region Citation: R. v. Driffield , 2011 ONCJ 596 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) T. Pittman, ) for the Crown ) — AND — ) ) ) RAY DRIFFIELD ) N. Stanford, ) for the accused ) ) ) ) HEARD: October 7, 17, November 18, 2011 FELDMAN J.: [ 1 ] Ray Driffield entered not guilty pleas to Operation Impaired and Blow Over 80.

It is alleged that he committed certain highway traffic infractions while operating his motor vehicle in the course of which his ability to drive was impaired by an amount of alcohol in his blood system that was over the legal limit. [ 2 ] The Crown called the two investigating officers in support of its case. I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the onus of proof on the Crown. The Evidence [ 3 ] On October 17, 2010, at about 5:03 a.m., P.C. Ryan Sharpe was a passenger escorting P.C.

Darryl Mckinnon, the driver of a police vehicle that was on general patrol westbound in the middle lane on Lawrence Ave. East just east of McCowan Rd. in Scarborough. Mr. Driffield was driving his car in front of the cruiser at the speed limit. P.C. Sharpe testified that he saw the right tires of the defendant’s car cross into the curb lane for 4-7 seconds, straddling the white line, and then observed the vehicle veer back into its lane. [ 4 ] P.C.

McKinnon described the defendant as having trouble maintaining lane position, with his passenger side tires initially moving into the curb lane for 3-4 seconds, the vehicle correcting itself, and then half the car veering again into the curb lane for about 6 seconds before returning to the middle lane. [ 5 ] P.C. Sharpe testified that the defendant slowed down as he approached a red light at McCowan Ave, but did not stop and went through the intersection. The officer said the traffic signal had been red a matter of seconds as Mr. Driffield approached the intersection. P.C.

McKinnon told the court that there were no other cars at that intersection. More specifically, he said that at about 5:04 a.m., he saw the light turn from amber to red and the accused slow down to about 20 kmh, perhaps less, about 10 metres from the intersection before continuing without braking through the red light. [ 6 ] P.C. McKinnon activated his emergency lights and came up behind the defendant’s vehicle. P.C. Sharpe said he thought it took about 5-6 seconds before Mr. Driffield pulled over. [ 7 ] P.C. Sharpe went over to the driver’s side and asked the defendant to put his window down fully.

He said the accused just stared ahead while holding onto the steering wheel with both hands. He had to ask a second time. When the window came down, P.C. Sharpe smelled alcohol from inside the vehicle. He told the accused the reasons for the stop, but says the accused did not respond and continued to stare ahead. [ 8 ] P.C. Sharpe said that when he asked the defendant where he was coming from, Mr. Driffield began to ramble while still staring out the front window. He could smell alcohol coming from the driver’s breath. His request that the motor be turned off was complied with. P.C.

McKinnon noted that at one point as his escort was speaking to him, the defendant turned from looking forward, stared at him for 8-10 seconds and then looked out the front window again, all the while having his hands on the steering wheel. [ 9 ] P.C. Sharpe twice asked for the accused’s driving documents but says he did not respond and stared ahead each time, occasionally turning to look at the officer, but eventually complying. P.C. McKinnon observed the defendant opening the glove box and shifting some papers that fell on the floor. Mr.

Driffield did not produce his documents. [ 10 ] Regarding indicia of impairment, P.C. Sharpe told the court that in addition to his driving, in determining reasonable and probable grounds for arrest, he considered the smell of alcohol on the accused’s breath, red eyes, a flushed face, his staring ahead while being unresponsive and the moving of his head back and forth, as well as side to side. He did not note any slurring of speech. The officer said that Mr.Driffield twice denied having consumed alcohol, but then admitted having had 2 beers. [ 11 ] P.C.

Sharpe arrested the accused at 5:08 a.m. and asked him to step outside his vehicle. He said both officers had to assist him so that he wouldn’t fall and escorted him back to the cruiser. P.C. McKinnon said he was unsteady on the walk back to the police vehicle. The defendant was provided his rights to counsel at 5:10 a.m. but required they be read to him three times before indicating he

understood them. A breath demand was made. [12] Another police unit arrived, having earlier been called to attend to the towing of the defendant’s vehicle. The officers leftthe scene at 5:23 a.m. having been dispatched to 32 Division, arriving at 5:41a.m. P.C. McKinnon said that on route the accused wastalking a lot and exhibited mood swings, being angry at some points, swearing at the witness and telling him he didn’t like him, thenbeing cooperative at others and crying when they reached their destination. P.C.

Sharpe testified that the officers again had to assist thedefendant into the parading area as he was stumbling. He was paraded from 5:47-59 a.m. after which he was placed in the report roomprior to breath testing. The video indicates that during that process, Mr. Driffield was upset with P.C. McKinnon, swearing at the officerfor pulling him over on the street and calling him an “asshole”. [13] Mr. Driffield asked to speak to duty counsel. P.C. Sharpe placed a call at 6:12 a.m. A call was returned at 6:19 a.m. Thedefendant spoke in private to counsel until 6:33 a.m. when he was escorted into the breath room.

The officer agrees the accused wasable to walk in and out of the room on his own and that his speech was normal. [14] Mr. Driffield completed his first breath test at 6:42 a.m. and was returned to the report room where he was handcuffed to abench. P.C. Sharpe said the defendant’s mood there was unpredictable. This included talking frequently, at times becoming excited andat other times being apologetic or calm. [15] He returned for his second test at 7:00 a.m., completing it by 7:12 a.m. He walked out normally on his own.

In relation toboth tests his truncated blood-alcohol concentration was 190 milligrams. [16] P.C. McKinnon testified that at 7:25 a.m., he served the defendant with “exact copies” of the Certificate of QualifiedTechnician. He said he showed Mr. Driffield that they were exactly the same and reviewed them with him, but told the court that theaccused refused to sign his name as having received the certificate. Mr. Driffield was later transported to 43 Division to be held andprocessed. Positions of the Parties [17] Mr.

Stanford, for the accused, submits that the evidence does not establish to the requisite standard that Mr. Driffield wasgiven reasonable notice of and served with a true copy of the Certificate of Qualified Technician, as required by Code s. 258(7). In fact,he says there is no evidence the defendant actually received the certificate. [18] In addition, he submits that the defendant’s breath tests were not taken as soon as practical, as required in s. 258(1)(c)(ii). Finally, he says that the Crown has not proven beyond a reasonable doubt that Mr. Driffield’s ability to drive was impaired by alcohol. [19] Mr.

Pittman, for the prosecution, focused on the Operation Impaired charge and submits that the evidence amply supportsthe conclusion that he has at least met the Stellato standard of ‘slight impairment’. Analysis Was there Reasonable Notice and Actual Service of a True Copy of the Certificate? [20] P.C. McKinnon told the court that later in the morning he served exact copies of the certificate on the defendant andreviewed them with him prior to his transfer to 43 Division. Mr.

Stanford raises the issue of whether the evidence permits the reasonableinference the accused directly received and retained a true copy of the certificate. [21] He makes reference to R. v. Dhillon, 2007 ONCJ 647, where the certificate was read in its entirety to the accused whosigned the document acknowledging receipt of it.

The officer told the defendant he would leave it with his personal effects to bereturned to him upon his release. [22] Justice Bourque was of the view that on a balance of probabilities he was satisfied that the defendant received a copy of thedocument as required in s. 258(7). [23] I agree with the result in Dhillon and the onus of proof applied in relation to reasonable notice that in its plain wordingimplies a practical approach to its implementation as a pre-requisite to the weighing of the contents of the certificate on the traditionalcriminal standard.

For example, as a practical matter, both notice and service of the document are sufficient if made on a law studentappearing to fix a date or on the accused’s counsel: R. v. Meyer (1973), (BC CA), 29 C.C.C. (2d) 165 (B.C.C.A.). [24] I hold to a different view of the standard of proof required to establish that a “true copy” of the certificate has been servedon the accused.

The court need be satisfied beyond a reasonable doubt that the information in the document and its copies, one of whichis left with the accused, is exactly the same before the prosecution is entitled to rely on the presumptions of proof that flow fromadmission of this certificate evidence. [25] The evidence in this case barely meets this standard. I take the plain meaning of the officer’s evidence to indicate he serveda comparably accurate copy of the certificate on the accused and reviewed it with him.

On the evidence, I draw the reasonable inferencefrom the word “served” that the defendant received the certificate. The evidence could have been clearer. However, I would not giveeffect to this submission As Soon as Practicable [26] In order to rely on the presumption extrapolating the breath test results back to the time of driving the Crown must establishthat those tests were taken as soon as practicable, as set out in s. 258(1)(c)(ii). This means within the context of the police actingreasonably that the tests were taken within a reasonably prompt time under the circumstances.

It does not mean as soon as possible: R.v. Vanderbruggen, (ON CA), [2006] O.J. No. 1138 (Ont. C.A.).

[27] Justice Rosenberg went on to say, at para 13, that this is an issue of fact for the trial judge who “should look at the wholechain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking ofthe first test”. He said there is no requirement that the Crown provide a detailed explanation of what occurred during every minute thatthe accused is in custody. [28] Mr.

Stanford submits that there are three unexplained periods of time that in combination in the context of the entirety ofthe investigation raise a reasonable doubt that the tests were taken as soon as practicable. He initially makes note of the 13 minutes from5:10 a.m., when the defendant was provided his rights to counsel, until 5:23 a.m. when the police left the scene to take him to 32Division. The evidence indicates that the police had to read Mr. Driffield his Charter rights three times before he said he understoodthem.

In addition, one of the officers requested another police unit to attend to deal with the towing of the accused’s vehicle in order thatthe police were able to transport their detainee. I draw the inference that at least some of the delay was attributable to waiting for thesecond cruiser. In this regard, P.C. McKinnon was concerned about leaving the vehicle on the road as there would soon be morningtraffic. [29] Counsel also makes reference to an unexplained 6 minute period of time from arrival at the station at 5:41 a.m. until thedefendant was presented to the parading officer at 5:47 a.m.

The evidence does not assist in clarifying this brief time frame beyondindicating the officers had to help the accused, who was stumbling, walk into the station from outside the sallyport, permitting aninference another police vehicle was inside holding them up. [30] As well, Mr. Stanford points to the 13 minutes between the end of the parading process at 5:59 a.m., when Mr. Driffieldwas taken to the report room, until 6:12 a.m. when P.C. Sharpe called duty counsel for the defendant. Mr. Driffield was handcuffed to abench in the report room.

It is unclear when he asked to speak to duty counsel. [31] Finally, counsel adds that it is unclear why the officers drove for 18 minutes to 32 Division rather than choose a closerdestination. P.C. McKinnon told the court they were dispatched there, in this court’s experience, an indication it was the closest stationwith breathalyser equipment and a technician available for breath testing. [32] I am not left in reasonable doubt that the tests were taken as soon as practicable and that the police acted reasonably in thecontext of the 2 hour limit for the taking of the first breath sample.

It was reasonable in the circumstances to wait for a second cruiser tooversee the towing the defendant’s car. There was some minimal delay at the sallyport necessitating the defendant being walked in fromoutside that secure area. I infer the defendant asked to speak to duty counsel at some unknown point prior to 6:12 a.m. [33] The evidence could have been clearer, but I am satisfied there is a sufficient accounting of steps taken by the authorities tofacilitate breath tests in a timely manner as required by the Code.

I cannot give effect to this ground. [34] Counsel concedes that if he is unsuccessful on these two issues, there is no impediment to a finding of guilt on the DriveOver 80, the essential elements of that offence having been made out on the evidence. In the result, there will be a finding of guilt in thatregard. Operation Impaired [35] Mr. Driffield was seen by police to drift on two occasions into another lane and each time straddle two lanes for severalseconds. He then went through a red light without braking and at which he had ample time to stop.

The arresting officer smelled alcoholon the defendant’s breath and noted red and blood shot eyes. He found the defendant to be rambling in some answers and unresponsiveto others, inappropriately staring ahead for some time. The defendant spilled some documents when looking through his glovecompartment. He stumbled getting out of his car and was unsteady at times.

He demonstrated emotional instability, includingbelligerence, on the way to the station and during the parading process. [36] In weighing the evidence, I am mindful that even slight impairment of the defendant’s ability to operate a motor vehicle issufficient to make out the offence: R. v. Stellato I1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), affd (1994) (SCC), 90 C.C.C. (3d) 160n (S.C.C.). [37] In R. v. Andrews (1996), 1996 ABCA 23 , 104 C.C.C. (3d) 392 (Alta.

C.A.), the court noted the importantdifference between slight impairment of one’s functional abilities as distinct from one’s ability to drive, explaining, at p. 402, that “inmost cases, if the conduct of the accused was a slight departure from normal conduct, it would be unsafe to conclude beyond areasonable doubt that his ability to drive was impaired by alcohol”. [38] In this case, Mr. Driffield demonstrated some indicia of impairment. His driving was at times unfocused and careless. When initially investigated, he was unresponsive to questions. He was unsteady on his feet.

His emotions were up and down whilebeing transported and at the station. [39] The evidence satisfies me beyond a reasonable doubt that the defendant’s ability to drive was at least slightly impaired byalcohol in the manner contemplated in Stellato. He will be found guilty of Operation Impaired. In the circumstances, I will stay theDrive Over 80 finding of guilt.

Released: November 18, 2011 Signed: “Justice L. Feldman”