R. v. ZORONECK, 2015 MBPC 69

CITATION: R. v. ZORONECK , 2015 MBPC 69 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Ayli Klein ) for the Crown ) and ) ) ) ZORONECK, Stuart ) Michael Dyck ) for the Accused ) ) ) ) Reasons for Decision delivered: ) December 21, 2015 DEVINE, P.J. [ 1 ] Mr. Zoroneck is charged with impaired driving and driving over .08. He brought a motion alleging that his

section 8 and 9 Charter rights were breached, rendering his arrest illegal and any evidence flowing from it tainted. All the evidence was heard in the context of a voir dire to determine its admissibility. It was agreed by counsel that my decision on the voir dire is determinative of the case. [ 2 ] The case turns on a narrow question. Did the officer have the requisite grounds to arrest Mr. Zoroneck for impaired driving, and demand a breath sample?

The defence alleges the officer may have had a reasonable suspicion that the Accused’s body contained alcohol, but he did not have reasonable grounds to believe the Accused was impaired by alcohol. FACTS [ 3 ] At 2:17 a.m. on March 15, 2014 Cst. Hill of the Ste. Anne Police Department was patrolling the town of Ste. Anne, Manitoba. He noticed the Accused driving towards him at a higher rate of speed than the posted speed limit. He made a u-turn to follow the vehicle and activated his emergency lights. [ 4 ] The Accused failed to pull over for about a mile after Cst.

Hill had activated his police emergency lights, which was unusual in Cst. Hill’s mind. There was very little if any traffic that night. [ 5 ] He noted that when the Accused finally pulled over, he swerved, which seemed to demonstrate an inability to effectively pull over. [ 6 ] The Accused testified that he was driving down Main Street and saw the police cruiser car driving on the other side of the street. At that point its flashers were not on. Then he saw the police car do a U-turn and turn its emergency lights on.

He testified that he did not pull over because the police vehicle was so far behind him, that he did not know if the police were pulling him over or if they were on another call. He said that once he knew it was him being pulled over, he pulled over. He also testified that he could not remember if there were other vehicles on the road at the time. He denied swerving. He said he straightened out his vehicle because it

was icy that night and there were a lot of potholes in the shoulder. [ 7 ] Cst. Hill could not remember the Accused backing up to straighten out the vehicle. [ 8 ] Cst. Hill said that when he walked over to the Accused’s vehicle he spoke to the Accused through the open driver’s side window. He testified that he had noted in his notes that the Accused exhibited deliberate speech and demonstrated slow response to his questions. Cst. Hill testified that the responses to his questions seemed delayed and overly considered given the simplicity of the questions. The Accused had glassy eyes. Cst.

Hill smelled alcohol in the vehicle. He asked the Accused if he had been drinking and the Accused said he had. He did not ask how much or when. The Accused remembered being asked if he’d been drinking by the officer and told him “a couple.” Then he kept repeating that he just lived down the road and just wanted to proceed to his home. Cst. Hill later learned the Accused’s house was half a block away. [ 9 ] At that point, Cst. Hill formed the opinion that the Accused’s ability to drive was impaired by alcohol. He asked Mr.

Zoroneck to get out of the car as he was placing him under arrest. [ 10 ] The Accused’s repeated requests to just go home ceased after he was arrested and placed in the cruiser car. [ 11 ] Cst. Hill testified that along with everything else, the repetition of words that he lived right there and just wanted to go home, formed a picture in his mind that he had cause to believe the Accused was impaired by alcohol. Cst.

Hill testified that saying things like “I just want to head home” is not typical in an interaction with a police officer. [ 12 ] There was a passenger in the vehicle, who was slurring, semi-conscious and exhibiting typical signs of impairment. Cst. Hill testified that the passenger seemed to be intoxicated. There were beer cans on his side of the vehicle. The officer could not testify as to how many beer cans and whether they were open or full. [ 13 ] The Accused testified that upon reading his driver’s licence, Cst. Hill smirked and seemed very happy about arresting him, as if he had achieved something.

He learned later that his father and Cst. Hill had a history together in the army reserves. The Accused’s father was the officer’s superior. In his testimony, Mr. Hill did not agree that he did not like the Accused’s father, and had not seen him in the ten years that had passed since they had been in the army reserves together, and in any event, the relationship was complicated. He also testified that he was not happy about arresting the Accused; in fact it was the opposite. He found it upsetting to be arresting the Accused, because of the past relationship with his father.

LAW AND ANALYSIS [ 14 ] The Accused was arrested for impaired driving pursuant to s. 253 of the Criminal Code and a sample of his breath was demanded pursuant to s. 254(3) of the Criminal Code . Subsection 254(3) requires that police officers may make the demand only when they have “reasonable grounds to believe” the person has committed the offence of impaired driving. This wording mirrors the wording of the arrest

section in the Criminal Code . Section 495(1) permits a police officer to arrest a person without warrant only where “on reasonable grounds, he believes” Embedded in both sections are the constitutional rights to be free from arbitrary detention in

section 9 of the Charter and free from unreasonable search or seizure in

section 8 of the Charter . [ 15 ] In this case, the issue is not whether the officer had a subjective basis for believing the Accused was impaired by alcohol.

It is clear from the evidence that he believed the Accused was impaired. [ 16 ] The issue is whether, objectively, he had reasonable grounds to believe the Accused was committing the offence of impaired driving at the point of the arrest. [ 17 ] The ultimate issue here is whether the officer had reasonable grounds to arrest the Accused and make the breath demand. [ 18 ] Defence counsel filed several cases in which trial judges found insufficient indicia of impairment to find that the Crown met its onus in establishing the reasonableness of the arrest or search. The Crown also filed a case on the issue.

Reviewing these decisions is helpful only insofar as the cases provide examples. Ultimately, I have to decide if Cst. Hill’s belief that the driver was impaired was reasonable. I found the following passage from R. v. Censoni , [2001] OJ 5189 (S.C.) helpful: While a particular aspect of a police officer’s roadside information, for example, observations of the driver or facts relating to the operator’s driving, may deservedly achieve greater prominence in the circumstances of a particular case, it must not be forgotten that reasonable grounds as to impairment to drive is essentially an opinion.

As such, the belief, based on perceived facts, is frequently a compilation of a state of facts that are too subtle and complicated to be narrated separately and distinctly: R. v. Graat , supra at 382. It is, accordingly, somewhat antithetical to this understanding that in reviewing whether reasonable grounds objectively existed we compel a police witness to unbundle the facts contributing to the impression of driving impairment. We do so, however, only to the extent necessary to secure the comfort that the grounds are objectively supported.

Sufficiency is never an examination of the articulated facts in isolation. (at para. 44) [ 19 ] I agree with Justice Hill’s articulation of the real question being posed and the difficulties in “unbundling” of the facts contributing to the police officer’s impression of impaired driving. [ 20 ] Accordingly, it is important to revisit the principles involved in making the determination about whether a police officer’s opinion that a driver was impaired by alcohol was reasonable. [ 21 ] The Supreme Court of Canada considered the meaning and purpose of “reasonable grounds to believe” in R. v. Storrey , 1990

125 (SCC), [1990] 1 S.C.R. 241, a unanimous decision of that court. The requirement protects society from excessive andunchecked police action while at the same time protecting society from crime. As Justice Cory stated, there must be . . . a reasonable balance achieved between the individual’s right to liberty and the need for society to be protected from crime. Thus thepolice need not establish more than reasonable and probable grounds for an arrest. (at para. 15) [22] The police are not required to have a prima facie case before arresting a person.

The arrest does not lead to conviction; thearrest leads to investigation of the offence. [23] The police officer is required to have a subjective belief that the person has committed the offence, as well as an objective one,that is, in the words of Storrey, It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest.Rather, it must be objectively established that those reasonable and probable grounds did in fact exist, that is to say, a reasonable person,standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest (at para.16) [24] In

summary, the Criminal Code requires that an arresting officer must subjectively have reasonable grounds on which to basethe arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed inthe position of the officer must be able to conclude that there were indeed reasonable grounds for the arrest. On the other hand, thepolice need not demonstrate anything more than reasonable grounds.

Specifically, they are not required to establish a prima facie case forconviction before making the arrest. (Storrey, at para. 17) [25] More recently, Justice Hill of the Ontario Superior Court reviewed the meaning of reasonable grounds in the impaired drivingcontext. He noted: In R. v. Ratelle (1996), (ON CA), 105 C.C.C. (3d) 58 (Ont. C.A.) at 68, Doherty J.A. noted in the context of adrinking/driving investigation, that the police are involved “in making a quick but informed decision of whether there are reasonable andprobable grounds to believe that the driver is impaired” (emphasis added).

Again, at pages 74-5, Doherty J.A. speaks of the police officerconfronted with making “a quick assessment” of the circumstances. (Censoni, at para. 41) [26] Justice Hill concluded as follows: Reasonable grounds in the context of a s.254(3) breath demand is not an onerous threshold. It must not be inflated to the context oftesting trial evidence. Neither, of course, is it so diluted as to threaten individual freedom.

All too often, however, the defendant invitesthe trial court to engage in minute decisions of the officer’s opinion — an opinion developed on the spot without the luxury of judicialreflection. (Censoni, at para. 43) [27] In R. v. Shepherd, 2009 SCC 23, the Supreme Court of Canada revisited the meaning of “reasonable grounds to believe” in theimpaired driving context.

Chief Justice McLachlin and Justice Charron reiterated that, . . . the officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offence ofimpaired driving or driving “over 80” before making the demand. He need not demonstrate a prima facie case for conviction beforepursuing his investigation. (at para. 23) [28] The facts in Shepherd have some similarity to the case at bar. The police officer witnessed the driver drive through a stop sign,and he was speeding.

The officer activated his siren and emergency lights, but the accused did not stop for three kilometres. The officernoted that the driver appeared lethargic and fatigued and had red eyes. He could smell liquor on his breath. His movements and speechwere slow and deliberate. The driver’s explanation for not stopping was that he thought the police vehicle was an ambulance. TheSupreme Court noted that this confusion itself could be another sign of impairment. [29] In this case, Cst. Hill came to believe that Mr. Zoroneck was impaired because of the totality of the following constellation offacts. He was speeding.

He did not stop and pull over after the emergency flashers were activated, for about one mile. He swerved,which seemed to demonstrate to Cst. Hill an inability to effectively pull over. When Cst. Hill approached the driver’s side window hethought Mr. Zoroneck’s eyes looked glassy. He could smell liquor in the vehicle. He asked Mr. Zoroneck if he had been drinking andMr. Zoroneck told him he had been. During their brief conversation at the roadside, Cst. Hill thought that the Accused’s answers to hisquestions were slow, delayed and overly considered given the simplicity of the questions.

Then he kept repeating that he just lived downthe road and just wanted to proceed to his home. Cst. Hill thought this was not a typical response to a police questions. [30] It was open to Cst. Hill to consider the behaviour in not stopping for the police vehicle and telling the officer several times thathe just wanted to go home and make inferences about that behaviour. In Censoni, Justice Hill stated: In dealing with probabilities relating to human behaviour, a trained officer is entitled to draw inferences and make deductions drawing onexperience: R. v.

Jacques (1996), (SCC), 110 C.C.C. (3d) 1 (S.C.C.), at 12 per Gonthier J.; R. v. Simpson, supra at 501(quoting United States v. Cortez (1981), 449 U.S. 411 (U.S. Ariz.), at 417-8); R. v. Cayer (1988), (ON CA), 66 C.R.(3d) 30 (Ont. C.A.), at 45 per curiam (leave to appeal refused [1989] 1 S.C.R. vi (S.C.C.)) (quoting with approval R. v. McIntosh (1984),29 M.V.R. 50 (B.C. C.A.), at 60-61 per Esson J.A.). (at para. 36)

[ 31 ] I do not accept the suggestion that Cst. Hill’s assessment of Mr. Zoroneck’s behaviour was clouded by emotion upon discovering that he knew the Accused’s father. [ 32 ] I accept that Cst. Hill believed Mr. Zoroneck’s ability to drive was impaired by alcohol when he pulled him over. I also accept that his belief was reasonable. [ 33 ] Accordingly, the arrest was lawful and the demand for a breath sample met the statutory requirement in section 254(3) , rendering the search reasonable. The Accused’s motion alleging breaches of

section 8 and 9 of the Charter is dismissed. Original Signed By DEVINE, P.J.