R. v. Taylor, 2014 ONCJ 791

CITATION: R. v. Taylor , 2014 ONCJ 791 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DOUGLAS TAYLOR Before Justice C. KEHOE Decision released on December 18, 2014 Mr. M. Geigen-Miller................................................................................................... for the Crown Mr. E. Granger.................................................................................... for the accused, Douglas Taylor KEHOE, J.: [ 1 ] Mr.

Douglas Taylor is charged that on January 22, 2014, in the City of Ottawa, operated a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol. He is also charged that on the same day he operated a motor vehicle with a blood alcohol concentration of over 80 milligrams of alcohol per 100 millilitres of blood. [ 2 ] Cst. Paul Heffler, an Ottawa Police officer, was on general patrol duty in the downtown of Ottawa on January 22, 2014. At 00:50 hours he was eastbound on Ogilvie Road following a vehicle in the left lane. Cst.

Heffler observed, after crossing the Aviation Parkway, a second vehicle, a black pickup truck, merged into traffic cutting off the vehicle he was following, to the point that the vehicle he was following had to brake. The merging pickup truck cut right over to the left lane as it merged onto the roadway. As Cst. Heffler got closer, the original vehicle he was following turned off of the road way and he was now following the black pick up. Cst. Heffler testified that he was still kind of catching up as the pickup seemed to be traveling at 90 in a 60 kph zone. [ 3 ] Cst.

Heffler also observed that the pickup was going a little left and right within the lane and not crossing the lane marker but at one point came close to the kerb without hitting it. It then crossed the lane marker twice. As the vehicle came to Bathgate, it signaled and turned. Cst. Heffler was right behind the vehicle. The vehicle slowed to the 30 kph speed zone and it seemed to Cst. Heffler that the driver had noticed a police vehicle following. Cst. Heffler testified that it was a 30 kph zone and they were traveling at approximately 40 kph but prior to that the pickup had been exceeding the speed limit. Cst.

Heffler activated his emergency lights and the vehicle pulled over although it took 10 seconds for it to do so. [ 4 ] He did not make note of the traffic stop time but testified that it would have been within a minute or two of 00:50. [ 5 ] Cst. Heffler approached the driver. The window was rolled down half-way. He observed the driver to have glassy eyes and that his hand movements seemed a bit slow but not extreme. He identified the driver as Douglas Taylor having been provided with a valid Ontario driver’s licence. Cst. Heffler identified Mr. Taylor in Court as the driver. [ 6 ] Cst.

Heffler testified that there was an odour of alcohol and he observed Mr. Taylor’s face to be slightly flushed. [ 7 ] Cst. Heffler asked Mr. Taylor to exit the vehicle. He testified that Mr. Taylor was not cooperating with his request and characterized his response as “passively avoiding my demand that he exit”. Cst. Heffler testified that after the 3rd request to exit, Mr. Taylor did exit the vehicle.

[ 8 ] Cst. Heffler advised Mr. Taylor of the alcotest demand as he believed that he had consumed alcohol while driving. [ 9 ] Cst. Heffler conducted the test, which Mr. Taylor failed. Mr. Taylor asked for a second opportunity as he thought the reading was a wrong reading. The test was performed again with a fail result. As a result Cst. Heffler placed Mr. Taylor under arrest, provided his rights to counsel, caution and the breath demand. [ 10 ] Cst. Heffler made arrangements to have the vehicle towed and for a breath technician. Cst. Heffler waited for the tow truck to arrive and left after that.

He testified that another officer came by and asked if he needed a hand, which Cst. Heffler declined because there was not going to be a delay for the tow truck. He had been informed that the tow truck would be there within 10 minutes and he did not want to take another officer off the road when he could complete the tow. [ 11 ] Cst. Heffler went directly the Central Station. Mr. Taylor was presented to the cell block sergeant, searched and provided with the opportunity to speak to counsel. [ 12 ] Asked what time, Cst.

Heffler testified that “he did not make note of the exact time but he thought it was around 01:45 or 01:50 when he arrived at cells. [ 13 ] Asked what happened at cells, Cst. Heffler testified that he was not clear “exactly what happened at cells” but that Mr. Taylor urinated and then drank a lot of water taking about 50 seconds to drink after urinating. [ 14 ] Mr. Taylor initially said that he was thinking of calling a real estate lawyer but was embarrassed to do so as he knew it was a criminal matter. Cst. Heffler asked for the lawyer’s number and Mr. Taylor said he did not want to call the real estate lawyer.

Cst. Heffler gave Mr. Taylor the lawyer list and Mr. Taylor studied it for a while and then chose the name Diangelo, which Cst. Heffler called and did not receive an answer. Cst. Heffler advised Mr. Taylor that Ms. Diangelo was with the Eddelson firm and asked if he wanted to call someone from the firm. He decided to call Greenspon instead and at 02:15 that call went through. [ 15 ] Cst. Heffler testified that between 01:50 and 02:15, nothing other than the search happened. Cst. Heffler testified that he provided grounds to the breath technician who took custody of Mr. Taylor at 02:27.

He was called back into the breath room by Cst. Sheffield as Mr. Taylor asked to use the washroom. Cst. Heffler took Mr. Taylor back to the same cell to facilitate. Cst. Heffler observed that Mr. Taylor again spent five minutes drinking water. He was then returned to Cst. Sheffield. [ 16 ] Cst. Heffler served Mr. Taylor the ADLS, Notice of Intent to Produce Certificate (Exhibit 1) and the Certificate of Qualified Breath Technician (Exhibit 2) at 03:35 hours. [ 17 ] Cst. Heffler testified that Mr. Taylor’s level of impairment was slight and that it was only the driving that drew his attention to Mr.

Taylor and his vehicle. [ 18 ] In cross-examination, Cst. Heffler agreed that the traffic stop was within a minute or two of 00:50 as he had observed the vehicle and the driving just before the traffic stop. [ 19 ] Cst. Heffler agreed that he did not make an arrest at 00:58 because he did not have the grounds without the fail on the Alcotest. [ 20 ] The fail was at 01:00 hours. Cst. Heffler allowed Mr. Taylor to make a second attempt, as he requested, at 01:10 hours. Cst. Heffler testified that there was no legal reason not to allow Mr. Taylor to do so and he had requested it. [ 21 ] Cst.

Heffler agreed that there were no notes between 01:50 and 02:15. Cst. Heffler agreed that he has previously been the subject of police discipline for a failure to make notes. He testified that he prefers to make notes in the form of the investigative action.

[ 22 ] Cst. Danielle Spencer, an Ottawa Police officer and qualified Intoxilyzer Technician, designated in August 2010 was on duty on general patrol in rural, south Ottawa. Cst. Spencer’s qualifications were admitted. [ 23 ] Cst. Spencer was dispatched to the Central Station to perform a breath test. She arrived at 01:50 hours and prepared the Intoxilyzer by performing all of the quality assurance tests including a self-test at 01:59 hours. The other diagnostic and calibration tests were performed at 02:04 hours. Cst.

Spencer was satisfied that the Intoxilyzer 8000C, an approved instrument, was in proper working order. Cst. Spencer received grounds from Cst. Heffler at 02:19 to 02:22 hours. She received custody of Mr. Taylor at 02:27. Between 02:22 and 02:26 Mr. Taylor had to use the washroom. [ 24 ] The first suitable sample was received directly into the instrument at 02:38 with a result of 110 milligrams of alcohol per 100 millilitres of blood. [ 25 ] Cst.

Spencer waited 17 minutes and red the caution, secondary caution prior to receiving the second breath sample with the result of 100 milligrams of alcohol per 100 millilitres of blood. The breath sample process and Cst. Spencer’s interaction with Mr. Taylor was video and audio taped (Exhibit 3). [ 26 ] In cross-examination, Cst. Spencer agreed that she had not made any observations of the typical signs of impairment other than that Mr. Taylor’s face was flushed. She agreed that she had nothing to compare it to that night but was able to say that it was more flushed that night than what Cst. Spencer observed of Mr.

Taylor in court. [ 27 ] Mr. Taylor did not testify. [ 28 ] Mr. Geigen-Miller, on behalf of the Crown, submits that the issues are

a) whether the Crown has proved that Mr. Taylor’s ability to operate a motor vehicle was impaired by alcohol, and

b) whether the Crown has proved that the breath samples were taken as soon as practicable and therefore whether or not the Crown can rely on the

section 258 presumption. [ 29 ] Mr. Geigen-Miller points to three pieces of evidence that establish that Mr. Taylor’s ability to operate the motor vehicle was impaired by alcohol: i. The description of the driving on Ogilvie Road; ii. The opinion of Cst. Heffler that Mr. Taylor was impaired; iii. The conduct of Mr. Taylor where he was drawing the time out and in particular the evidence that he was drinking large quantities of water. [ 30 ] He submits that when the evidence is taken in its totality, it is circumstantial evidence that Mr.

Taylor was well aware that he had alcohol in his body and that he was impaired by alcohol. [ 31 ] Mr. Geigen-Miller relies on R. v. Anders , and Alberta Court of Appeal case. He submits that in this case there is evidence that Mr. Taylor was weaving within the lane. He submits that there is no evidence before the Court and the Court is being asked to speculate that the accused was dodging sewer grates in the roadway as a reason for the weaving. He submits that even if there were sewer grates, they would never require a driver to exit the lane to avoid them. [ 32 ] Mr.

Geigen-Miller submits that there is evidence of an inability to drive in a straight line from Cst. Heffler. He submits that it is one of the classic signs of impairment and although not gross it is sufficient to meet the test, i.e. weaving within the lane, crossing the lane markers at least somewhat on at least 2 occasions, taking at least 10 seconds to pull over. Mr. Geigen-Miller submits that this is evidence of an inability to pay attention or perform divided attention tasks. [ 33 ] Mr. Geigen-Miller submits that Mr. Taylor’s conduct after the traffic stop, i.e. having to ask him to step out of the vehicle a

few times, going to the washroom and drinking a lot of water at the station, a very prolonged process to choose counsel point to a pattern and when put together with the driving evidence the Court has some evidence also tending to show that Mr. Taylor is impaired and knows it. He points to the physical signs of the odour of alcohol and the glassy eyes as evidence of the consumption of alcohol. Mr. Geigen-Miller submits that although the consumption of alcohol does not establish the amount, it is evidence it adds to the driving evidence. [ 34 ] Concerning the as soon as practicable issue, Mr.

Geigen-Miller relies on R. v. Vanderbruggen and submits that the test is a question of whether the police acted reasonably. He submits that Cst. Heffler and Cst. Spencer did act reasonably, moved promptly from one step to the other and that there is no requirement to provide a detailed explanation of what happened every minute the accused is in custody. [ 35 ] Mr. Geigen-Miller submits that there was no unexplained delay. He submits that it was reasonable for Cst.

Heffler to wait for the tow truck as he was able to complete his duties within the two hour time limit and there was no need to take another officer on the road in the circumstances. [ 36 ] Mr. Geigen-Miller submits that there is a 25 minute delay caused by Mr. Taylor going to the bathroom, his prolonged delay in choosing counsel and having to use the washroom and drinking water a second time when he is taken to the breath technician. [ 37 ] Mr. Granger, on behalf of Mr. Taylor, submits that Cst. Heffler was not acting in a manner consistent with the as soon as practicable requirement. Mr.

Granger points to the fact that the rights to counsel and cautions are given at 01:01 and the arrival time at the station of 01:50 and the only explanation is Cst. Heffler waiting for the tow truck when it was not necessary for him to remain on scene when the other officer offered assistance. [ 38 ] Mr. Granger submits that Cst. Heffler’s evidence was somewhat vague and non-specific concerning times. He points to the traffic stop time as an example, i.e. he observed the vehicle at 00:50 and the traffic stop was within a minute or two and the unexplained time of 00:55. He submits that Cst.

Heffler’s evidence was shifting from what he said in examination in chief and on cross-examination and between what he had in his notes and what was in his investigative action. Mr. Granger submits that the Roadside demand is not until 00:58 and the fail is at 01:00. All rights and cautions are completed in one minute. [ 39 ] Mr. Granger submits that Cst. Heffler gave no evidence of making arrangements for the tow truck and/or the breath tech when he testified in chief and he did not note how he made the arrangements, i.e. over the radio or by computer but later put the tow truck request in the window of 01:01.

Mr. Granger submits that it is a 10 minute drive to the Central Station and there is no time of when the tow truck arrived. He submits that the arrival time of 01:50 at the station if far from clear what the time represents and the Crown, as a result, has not proved the as soon as practicable requirement. [ 40 ] Mr. Granger submits that there is no information as to what happened between 01:50 and 02:15 when Mr. Taylor is on the phone with counsel. [ 41 ] Mr. Granger submits that there must be strict compliance with the pre-conditions and the Crown must prove compliance and that the police were acting reasonably.

He submits that the test is not as soon as possible but as soon as practicable. [ 42 ] Mr. Granger submits that the requirements have not been met in this case because Cst. Heffler has next to no times even of key events. He submits that Cst. Heffler’s evidence is based on estimates. [ 43 ] Mr. Granger submits that Cst. Heffler’s evidence concerning the driving was also non-specific, i.e. no speed was noted except that the vehicle “seemed to be moving fast”. He submits that Cst.

Heffler’s evidence in chief was that the vehicle was traveling quickly, and as it merged it switched to the left lane and cut off another vehicle. However in cross-examination Cst. Heffler did not know what the distance was between the vehicles and agreed that he assumed the truck cut the other vehicle off because the vehicle braked. Mr. Granger submits that that piece of evidence is not indicative of anything as it is not an uncommon occurrence when drivers are merging into moving traffic. [ 44 ] Mr.

Granger submits that the driving on Ogilvie is not remarkable, other than he came close to the kerb without touching it at one point and that the vehicle crossed the lane marker twice and then nothing more that the tires on the lane marker.

[ 45 ] Mr. Granger submits that the lack of the usual physical signs of impairment point strongly away from proof of an impaired ability to drive. He submits that the key piece of evidence concerning the impaired charge is that Cst. Heffler did not have grounds to arrest for impaired driving when he first conducted the traffic stop and did not have any grounds until Mr. Taylor failed the roadside test. [ 46 ] I have considered the evidence, the submissions of counsel and the cases referred to. I do have a reasonable doubt on both counts. I find that Cst.

Heffler did not have proper notes or even a memory of what occurred and could not explain the delays, i.e. between 1:10 and 1:50 other than he was waiting for the tow truck, refused assistance of another officer and left as soon as the tow truck arrived. However he did not note and did not know when the tow truck arrived. Likewise he could not explain where he was at 01:50, whether waiting in the Sally Port or inside the station due to his failure to take notes and his resulting inability to remember.

As a result, the Crown has not proved beyond a reasonable doubt that the tests were taken as soon as practicable and cannot rely on the

section 258 presumption. No expert was called to read the readings back to the time of driving. I am therefore acquitting Mr. Taylor on the over 80 count. [ 47 ] I also have a doubt, again due to the lack of details, notes and memory, concerning the observations of the driving. Cst. Heffler’s evidence was that he did not have grounds to make an arrest for impaired operation until the Fail on the roadside and that Mr. Taylor’s impairment was slight. The Crown has failed to prove beyond a reasonable doubt that Mr.

Taylor’s ability to operate the motor vehicle was impaired by alcohol. [ 48 ] He will be acquitted on that count. Released: December 18, 2014 _____________________________ The Honourable Justice C. Kehoe