R. v. Andrews-Somers, 2018 ONCJ 996

CITATION: R. v. Andrews-Somers , 2018 ONCJ 996 DATE: July 31, 2018 Information Nos. 2811-998-17-25083; 17-34242; 17-23207 and 18-25088 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. ROSE ANDREWS-SOMERS R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE G. WAKEFIELD on Tuesday, July 31, 2018, at OSHAWA, Ontario APPEARANCES : O. Fitzgerald Counsel for the Crown A.

Risen Counsel for Rose Andrews-Somers ...PROCEEDINGS HEARD BUT NOT TRANSCRIBED AS PER REQUEST FOR TRANSCRIPT REASONS FOR JUDGMENT WAKEFIELD, J. (Orally): With respect to the trial proper, Rose Andrews-Somers is charged with two counts of impaired bodily harm and two counts of over 80 causing bodily harm. I do commend both counsel for working together to produce an agreed statement of facts, saving considerable court time and inconvenience to the witnesses.

In essence, the agreed statement sets out that the two complainants were in the same vehicle, already stopped behind a taxi cab at an intersection facing a red light. The defendant's vehicle rear-ended the couple's vehicle with sufficient force to propel the complainant's vehicle 8 to 10 feet, forward, into the rear of the stopped taxi in front of them.

The complainants were aware of the defendant's car approaching them for approximately five seconds before impact, when the complainant's vehicle had already been stopped for some, but presumably short period of time, in advance of noticing the defendant's vehicle. The defendant did attend the complainant's vehicle to check on their safety and apologize, advising that she was looking down; without specifying why. The defendant apparently left the scene after locking her car for a brief period and is then seen walking toward them.

It is not clear for how long the defendant was gone or for what distance, but had absented herself for a sufficiently long enough period of time for EMS to attend on the scene, examine and treat Mr. Franklin, as well as place him in an ambulance before Mr. Franklin sees the defendant returning to the scene. The defendant is not charged with leaving the scene and as such I do not see this as being an aggravating factor. Both complainants suffered whiplash injuries, with the driver also suffering permanent and non-major nerve damage, together with a swollen spiral disk requiring medication and physiotherapy.

The complainant's vehicle was damaged so severely as to no longer be road worthy. There was an application to quash the information, which was denied for reasons which are being separately rendered. On the trial proper the Crown called PC Patterson and PC Laniel, a qualified breath technician, together with evidence of the breathalyzer readings, which would reflect truncated readings of 160 and 153, together with filing a toxicologist's expert report, which was filed on consent. The defence closed without calling evidence, therefore, I must focus on the third branch of W.(D.) .

There was also a blended Charter application alleging breaches of Sections 8, 9 and 10, which requested relief of having all evidence excluded. The defence submitted that the arresting officer lacked the necessary suspicion to found a roadside demand. The defence also alleges that there was no formal demand pursuant to Section 254(2), resulting in a breach of the Charter ,

Section 9, arising from her unlawful detention and unlawful seizure of the defendant's breath samples. PC Patterson's testimonial assistance to the Court was less than perfect, somewhat akin to the standard of investigation by him in this incident. He testified to attending on the scene of a multi-vehicle accident in which the defendant's car was the rear most vehicle of the three-car collision. He made an ASD roadside demand to the defendant, which resulted in a fail. He arrested the defendant, but has no recollection, or notes, of ever making a formal breath demand and conceded that he forgot to do so.

Having cuffed the defendant to the rear, despite her being involved in an accident, she was taken to the station for samples of her breath, resulting in the admitted toxicologist's report conclusion of between 150 to 185 milligrams of alcohol in 100 millilitres of blood, based on a number of enumerated factors, including the Intoxilyzer results, as said, of truncated 160 and 153 readings obtained less than two hours after the accident.

Objectively, I find the officer had the grounds for a reasonable suspicion of alcohol in the defendant's body and certainly find that the officer believed he had subjective reasons. He had a multi-vehicle accident and admission of alcohol consumption, albeit many hours earlier, but under no obligation to take the defendant at her word as to the time of consumption, nor did the officer have to accept the defendant's explanation for causing the accident, that she looked down, momentarily. However, he observed no indicia of impairment on the person of the defendant.

The officer does deserve credit for facilitating rights to counsel and contacting counsel, due to the delay in having an ASD brought to the scene. PC Patterson gets less credit when testifying as to a subjective suspicion to justify the roadside demand. He presented as a witness who lacks confidence in his testimony and exhibited a poor memory of the incident.

However, I take into account that the incident itself occurred in heavy traffic, requiring the officer to focus on clearing the accident scene as well as his investigation of the defendant, which provided some insight into the officer's substandard completion of his duties.

However, again, the officer did testify that he knew he did not have to accept the defendant's assertion of when she had been drinking, though certainly made no further inquiry of the defendant to detail more particulars of her drinking, and while not articulating precisely the suspicion, I accept that the officer meant that the accumulation of the accident and the admission of consumption, that he had subjective suspicion to justify the roadside demand, when he asserted, "Yes, that is why I requested the roadside".

I take the context of the officer knowing he did not have to accept the defendant's word as to the timing of the consumption when he gave that answer in cross-examination. In my view, the severity of the motor vehicle collision, despite any explanation, together with admission of consumption where the time of the consumption is not accepted by the officer who pointed out that he has been lied to before, meets minimally, but does meet the objectively discernible facts to amount to a foundation for suspicion.

I further accept the officer's reliance on the ASD and his failsafe system to ensure it would only take a sample if it was in good working order, together with a consumption admission, and the fact of a collision, to amount to reasonable and probable grounds for the arrest, both subjectively and objectively. As expressed by the Ontario Court of Appeal in R. v. Jennings , 2018, ONCA 260 , at Paragraph 20, [As read]: Some evidence of the officer's knowledge of the ASD failsafe system is sufficient to be evidence of the subjective believe of the officer as to the ASD's results and reliability.

Even if I am wrong as to the officer having met the low threshold of suspicion in making the ASD demand, that becomes part of the Grant analysis under Section 24(2) as to the admissibility of the evidence which was actually obtained. In this day and age, absent contrary evidence, I would anticipate that most people arrested after failing an ASD would know that they are being taken to a police station for what is colloquially known as a breathalyzer. Indeed, in the case at bar, the defendant cooperated with the breath technician and followed directions, without difficulty, despite being emotionally upset.

I do not accept the defence submission in Paragraph 34 of their written submissions that there was clear evidence that the defendant did not understand why she was at the police station. Her replies to the breath technician were, at best, equivocal on this issue and certainly no expression of confusion requesting, for example, an explanation by the breath technician. The breath technician did ask the defendant whether she knew why she was at the station, to which she responded, "Yes", following another question of, "Why?", to which she then responded, "Because I ran into the back of someone".

The context here is that the defendant has already been told by the breath technician that she was under arrest for exceed and that he would be the one taking the breath samples, so that the answer "running into the back of someone", is an accurate expression of how the investigation into her actually commenced. It does not assist me knowing what more was or was not in her mind at that time. However, PC Patterson neglected to authorize that process by neglecting to make that formal demand. As such, the taking of the breath sample was a legally unauthorized seizure and a breach of

Section 9 of the Charter . This does require the Grant analysis under Section 24(2) of the Charter . At the time of arrest and the taking of the breath samples, it was unknown to the police that the injuries to the complainants amounted to bodily harm. The lack of warning the defendant of that peril had not yet coalesced. Neither involved officer warned about an impaired or impaired bodily harm, as the view of the arresting officer was the defendant lacked any indicia of impairment.

As such, I do not find any breach of obligation of either officer to so warn the defendant and as such no breach of the Charter arising out of that specific issue. Similarly, while I accept that most people would find being cuffed to the rear uncomfortable, it would not surprise me that there would be a reaction of relief by any detainee once the cuffs were removed. I have no evidence, other than the video, the video having captured a reaction of the defendant when the cuffs were removed, that she was in any unusual discomfort that would have had been otherwise a potential factor in any Charter analysis.

In this case, in assessing the seriousness of the police conduct, I find PC Patterson's failure to make a breath demand less serious than wilful or egregious, but certainly more serious than a minor breach or one committed in good faith. In my view, the officer's failure to make the breath demand amounts to either negligence or possibly incompetence, given the routine nature of the demand. However, I do take into account the distraction of a busy accident scene, in which I find some mitigation for the officer's failure.

Additionally, having failed the ASD, the defendant was clearly on her way to the station to provide samples of her breath. She was under arrest for, exceed. All of the other consequences remain the same. However, this was a warrantless seizure, breaching the defendant's right not to have been subjected to that seizure.

On balance, I find that this conduct favours exclusion. I do acknowledge that my analysis as to the impact of the Charter breach on the defendant would be the opposite to what it is today, prior to the release of Jennings . My understanding of Jennings is that it rejects the line of cases found in R. v. Au-Yeung , 2010 ONSC 2292 , which considers the impact of an arrest, such as being cuffed, that provision of liberty, the cost of an impounded car, that's just a few examples of the serious impact on a defendant caused by the arrest, which would have strongly favoured exclusion of evidence.

Prior to the release of Jennings , I would have followed that analysis. Today, I must follow Jennings and especially Paragraph 32 of that judgment and hold that I must focus on the actual taking of the samples, which indeed is a process which is minimally intrusive and as such favours admission. The importance and reliability of the impugned evidence is essential to the trial on its merits. The societal importance of drinking and driving offences is essential to counter the carnage caused by drinking drivers.

The truth seeking function of a trial requires relevant, reliable evidence and breath samples are indeed such evidence. On the third factor, I find reliability favours admission. Balancing the three Grant factors, I find excluding the investigatory evidence would more likely bring the administration of justice into disrepute and find that the investigatory evidence, including the breath samples and expert's report, the BAC levels, admissible.

I do not see Jennings as proposing an automatic regime of inclusion, but leaves open in the balancing of the Grant factors a scenario in which the egregiousness of state conduct might very well overwhelm the weight given to the other two factors. Such a scenario is not found here. The bodily harm caused to both complainants is conceded with the admission of the breath sample results which are set out in the expert's report. I find that the Crown has indeed proven, beyond a reasonable doubt, the two counts of exceed causing bodily harm and do find the defendant guilty of both of those charges.

With respect to the impaired causing bodily harm, those two counts, on the evidence of PC Patterson, was that there was a total absence of indicia of impairment other than the fact of the accident. There is a wide gap between suspicion and reasonable and probable grounds and an even wider evidentiary gap between reasonable and probable grounds and proof beyond a reasonable doubt. This officer's resolve as to the lack of indicia was strong enough to refuse a Crown direction to upgrade the charges to include impaired bodily harm, causing the Crown to direct a different officer to do so.

The only additional evidentiary foundation for an impaired conviction would be the filed expert toxicology report, in which there is a single paragraph in which the expert opinion is that anyone with a BAC exceeding 50 milligrams per 100 millilitres is impaired in the operation of a motor vehicle. That opinion may very well be true for most individuals and I would not hesitate accepting it as such, but it does not amount to an opinion as to this particular defendant, whom the experts neither met nor examined.

My difficulty in accepting that opinion as proof beyond a reasonable doubt, universally to all drivers, is the experience of numerous drinking driving cases in which the driver's skill set in operating a motor vehicle lacked any evidence of impairment despite even higher BAC readings. Absent binding case law directing that such an opinion amounts to proof beyond a reasonable doubt, despite lacking any individual examination of the specific defendant, I am not prepared to find that report amounting to proof beyond a reasonable doubt.

In the circumstances of this case I find the defendant not guilty of the two counts of impaired bodily harm. ...PROCEEDINGS HEARD BUT NOT TRANSCRIBED AS PER REQUEST FOR TRANSCRIPT