R. v. Polak, 2017 ONCJ 596

ONTARIO COURT OF JUSTICE CITATION: R. v. Polak , 2017 ONCJ 596 DATE: 2017 09 01 COURT FILE No.: Durham Region 998 16 33345 BETWEEN: HER MAJESTY THE QUEEN — AND — Daniel Polak Before Justice J. De Filippis Heard on February 8 - 9, and May 19, 2017 Reasons for Judgment released on September 1, 2017 [1] Ms. S. Thompson............................................................ counsel for the Crown Mr. B.

Brody............................................................. counsel for the defendant De Filippis J.: Introduction [ 1 ] The defendant was charged with having care and control of a motor vehicle while his ability to do so was impaired and with a blood alcohol level that exceeded the legal limit, contrary to subsections 253(1) (

a) and (

b) of the Criminal Code . A third count alleges dangerous operation of a motor vehicle, contrary to

section 249 of the Code. The offences are said to have occurred at the City of Oshawa on January 9, 2016. [2] [ 2 ] A brief overview of the allegations will serve to frame the issues raised at trial: On the day in question police were called by a person who reported a motor vehicle being operated in an unusual manner. The police soon arrived at a home and encountered the defendant. After observing a damaged car and conversing with the defendant, the latter was arrested. He was transported to a police station and complied with a demand to provide samples of his breath.

The results show that he had a blood alcohol level above the legal limit. While these breath tests were conducted the defendant conversed with the intoxilyzer technician. [ 3 ] The defendant alleges he was detained almost immediately after the police arrived at the home. He claims that the failure of the police to tell him the offences they were investigating and that he was entitled to speak to a lawyer violated his rights pursuant to subsections 10(

a) and (

b) of the Charter of Rights and Freedoms. The defendant also claims that the police lacked the requisite grounds to arrest him and subject him to a breath demand, thereby violating his rights pursuant to sections 8 and 9 of the Charter . In this regard, the admissibility of the statements made by the defendant at the scene are contested. Pursuant to section 24(2) of the Charter , the Defence seeks the exclusion of all evidence obtained in violation of these rights.

[ 4 ] The defendant asserts that his statements to the intoxilyzer technician are inadmissible because “of a line of authorities that deals directly with the voluntariness of statements made between [breath] tests”. The defendant claims that without this evidence, the Crown cannot prove he was the driver of the car in question. Finally, and in any event, it is argued that there is insufficient proof of impaired or dangerous operation of the motor vehicle. [3] [ 5 ] The Defence must establish the

section 9 and 10 Charter claims on a balance of probabilities. This being a warrantless search the Crown must demonstrate compliance with

section 8. At the end of the day, quite apart from these evidentiary issues, the Crown must prove guilt beyond a reasonable doubt. I heard from five Crown witnesses. The Defence elected not to call evidence. I reject the Charter claims. I find the defendant guilty of all offences. These reasons reflect the fact that, for the most part, the evidence that was challenged was not seriously undermined. That is, credibility and reliability are not troubling matters. The primary issues are the inferences to be drawn and the applicable legal principles.

Evidence [ 6 ] Brian Loder is 50 years old and operates a construction company. He testified that on January 9, 2016, he was sitting with friends in a garage on Grandview Street North in Oshawa, when, at about 7 PM, he heard a loud bang and tires screeching. He came out of the garage and saw motor vehicle stopped in the middle of the road. He observed parts of the motor vehicle on the road and approached the male driver who had stepped out of the car. There was nobody else in the car. Mr. Loder asked the driver if he was okay. The driver said nothing, re-entered the car, and drove away.

The witness pointed to the driver as the defendant as the driver. [ 7 ] Mr. Loder called 911 and followed the motor vehicle on foot as it travelled down the street. As he did so another vehicle approached. The driver of that vehicle accepted the witness’ request to enter and follow the defendant’s car. The latter was followed to a home on Tall Pines Street. Mr. Loder testified that as the man entered the driveway of that home, he hit a parked car. The witness saw the defendant exit the car and go into the home. Throughout these events, Mr. Loder communicated with the dispatch officer at 911.

This record was played in court. [ 8 ] In cross-examination, Mr. Loder agreed that his identification of the defendant is based on his assumption that the man before the court is the culprit and that, apart from that, he could not say he is the culprit. This identification is without value. [ 9 ] Karen Boyd is 52 years old and works as a security officer at the Great Blue Heron Casino. She testified that on the day in question, she was taking her 16-year-old daughter and friends to the cinema. While northbound on Grandview Street she saw a motor vehicle going from one side of the road to another.

She slowed, ready to take evasive action. She saw the motor vehicle go over the boulevard and abruptly turn to avoid colliding with a parked truck. As it did so, it hit a mailbox. At this time, she saw several people leave a garage. The witness asked one of the men to call 911. That man followed the motor vehicle on foot. [ 10 ] PC Rabishaw arrived at 1105 Tall Pines Street at 7:28pm in response to the 911 call. She was in uniform and operated a marked cruiser.

She had received information from the dispatcher about “a fail to remain” involving a black motor vehicle, with much smoke coming from it, that had made its way from Grandview Street to 1105 Tall Pines Street. She saw two motor vehicles parked in the driveway. One of them, a dark green Hyundai SUV, had extensive damage to the front, including a left wheel that was angled, a missing bumper, broken headlight and a bent wheel well. The officer approached a man, now known to be the defendant, sitting on the porch and asked if one of the vehicles belonged to him. He said the damaged one was his.

She testified that he complied with her request to come to the side of her cruiser. As he did so she noticed that he walked with deliberation and that he swayed back and forth when he stopped to produce his driver’s licence. [ 11 ] P.C. Rabishaw cautioned the defendant that she was conducting an investigation and that he did not have to say anything, but if he did, it could be used against him.

She testified that he responded as follows: “Yes, I totally understand, I don’t even know why this has to be investigated.” The officer asked when he last drove the SUV, when he last consumed alcohol, and how the vehicle came to be damaged. The defendant responded that he had driven it “20 minutes ago”, had consumed alcohol “earlier in the day” and did not know how the SUV was damaged. The officer then spoke to a woman on the porch and received information that the defendant is her boyfriend and had just arrived at the home. [ 12 ] In cross-examination, P.C.

Rabishaw stated that she arrived at the Tall Pines home with little information about events except that a driver of a motor vehicle had failed to remain at the scene of a collision. She explained that she asked the defendant to follow her to cruiser for officer safety; that is, so she could speak to him “in the open area on the street, not on the porch”. The officer agreed that

she did not notice slurred speech and did not know if he was impaired. The officer added that at this point she was investigating a Highway Traffic Act offence. She agreed she did not specifically tell him this but added that when she cautioned the defendant, they were both looking at the damage to the SUV. [ 13 ] P.C. Rabishaw testified she did not consider the defendant detained; it is for this reason that she left him on the street when she returned to the porch to speak to the woman. As she did so, another officer, P.C. Morrison arrested the defendant. When P.C.

Rabishaw joined them, she noticed the defendant looking for his driver’s licence as demanded by P.C. Morrison. She reminded the defendant that he had just given her that document. [ 14 ] P.C. Morrison arrived on scene at 7:35 PM. He heard a woman on the porch tell P.C. Rabishaw that her boyfriend had driven the vehicle. He assumed that was a reference to the defendant because the latter was standing near the damaged SUV. The officer approached the defendant and told him that he was “investigating a collision with this vehicle that may have struck a tree”. He asked if the SUV belonged to him.

The defendant replied that it did and that he had been at a friend’s home before coming here to his girlfriend’s house. He added that he had not hit anything. When asked, the defendant stated he had consumed “six beers” at his friend’s house. The officer testified he could smell a strong odour of alcohol on the defendant’s breath during this conversation. He also noticed that the defendant “continually leaned against the SUV and was bouncing off it”, that his speech was slurred and his eyes appeared glassy and bloodshot. [ 15 ] At 7:43 PM, P.C.

Morrison arrested the defendant for having care and control of a motor vehicle while impaired. He described his grounds as follows: The strong odour of alcohol, slurred speech, glossy and red eyes, unsteadiness on his feet, the information received about the collision, and the damage to the SUV. He conducted a “field search” and found the keys to the SUV in the defendant’s possession. At 7:45 PM, he made a breath demand and advised him of his right to counsel, including the availability of duty counsel. The defendant replied, “Yes, sure the free one”.

Four minutes later, he transported the defendant to a nearby police station. On arrival there, at 7:57 PM, the officer told him he would contact with duty counsel. However, the defendant said he did “not want to talk to a lawyer now”. Within minutes, the defendant was presented to the booking Sergeant. When the latter asked if he had been told about his right to counsel the defendant said, “I’m okay right now.” The Sergeant advised him to let the officers know if he changed his mind. The defendant replied, “no problem.” [ 16 ] At 8:04 PM, P.C. Morrison provided his grounds to the intoxilyzer technician.

After the breath tests were completed, the defendant was returned to the cells. P.D. Morrison served him with the Certificate of Analysis. The document records that the tests were conducted 8:14 and 8:37 and the result reveal a blood alcohol level at more than twice the legal limit. [ 17 ] In cross-examination, P.C. Morrison agreed that he did not record his observations of slurred speech and unsteadiness in his notebook. He assumed the defendant had not been detained prior to arrest because he found him standing alone beside his vehicle.

The officer agreed that in advising the defendant that he was investigating him for driving his vehicle into a tree, he understood that there could be charges of fail to remain, dangerous driving and impaired driving but he had not come to any conclusions until the arrest a few minutes later. [ 18 ] P.C. McQuait is a qualified intoxilyzer technician. There is no dispute that he properly obtained two samples of the defendant’s breath into an approved instrument with truncated readings of 190 mg of alcohol in 100 ml of blood.

During the testing process, the officer recorded these observations about the defendant: “A moderate odour of alcohol on his breath, fair and slurred speech, eyes bloodshot and pupils dilated, cooperative, and dressed orderly”. He formed the opinion that the defendant displayed obvious signs of intoxication. [ 19 ] The defendant was turned over to P.C. McQuait at 8:07 PM. The subsequent proceedings are recorded on video. The officer asked the defendant if had been given an opportunity to speak to a lawyer. The defendant replied, “I’ve been given the opportunity to speak to a lawyer and I feel no need to”.

The officer said, “so, you don’t want to speak to a lawyer” and the defendant said “there’s no need”. The officer cautioned the defendant as follows: “You are charged with impaired operation of a motor vehicle. Do you wish to say anything in answer to the charge, you are not obliged to do so, but whatever you say will be given in evidence, do you understand”? The defendant replied, “I don’t want to say anything but I do understand”.

The defendant was advised of this secondary caution: “If you have spoken to any police office, or they spoke to you re this case, I want it clearly understood I do not want it to influence you in making any statement, do you understand”? The defendant said, “I’m fine with that, yes”. Before the first test was administered the defendant asked if would be allowed to drive home “because of my alcohol consumption”. [ 20 ] The impugned conversation is that which occurred during the 17-minute interval between tests. At this time, he was asked a number of questions by P.C.

McQuait, including the following: Q: Do you understand why you were arrested?

A: They said I hit a vehicle but I don’t remember. I was driving to my girlfriend’s place. Q Was there anybody else in the car? A: As far as I remember, myself Q: How much have you had to drink in the last 18 hours? A: Tonight, I had mickey of rum at a friend’s place. Q: Were you drinking after the accident? A: I would say no, it’s tough because I don’t recall [an accident] During this conversation the defendant also said, “I know I’m in the wrong….. I didn’t realize I left the scene…” Detention: Sections 10(

a) and (b) [21]

Section 9 of the Charter protects a person from being arbitrarily detained. When a person is detained or arrested, the rights setout in

section 10 are engaged. In R v Grant, 2009 SCC 32 , [2009] 2 SCR 353 (SCC), the Supreme Court of Canada defineddetention as ‘a suspension of the individual’s liberty interest by a significant physical or psychological restraint.’ The latter arises when aperson is either under a legal obligation to comply with a demand, or the circumstances are such that a reasonable person would believethat he or she has no choice but to comply.

In assessing the reasonableness of the person’s belief, the Court highlighted three factors: thecircumstances giving rise to the encounter, the nature of the police conduct, and the characteristics or circumstances of the individual. The Court of Appeal for Ontario considered the issue of when detention crystalizes in the investigation of drinking and driving cases in Rv. MacMillan, 2013 ONCA 109 , [2013] O.J. No 727 (ONCA) and R v. Guenter, [2016] O.J. No 3857 (ONCA). Thesedecisions support the Crown’s submission that the defendant was not detained until arrested by P.C. Morrison. [22] When P.C.

Rabishaw arrived at 1105 Tall Pines Street she had limited information about a “fail to remain” incident. Thisinformation did not suggest an impaired driver or that a Criminal Code offence had been committed. The officer observed the damage tothe SUV, had a brief conversation with the defendant and then left him at the side of the road and spoke to a woman at the home. Contrary to the Defence submission, this was not a “focused investigation singling out the [defendant]”. Her actions are consistent withher trial testimony that she was merely conducting preliminary inquiries to determine what had happened. P.C.

Morrison arrived six orseven minutes later and, within minutes, arrested the defendant. It is abundantly clear that the defendant was not physically detained byeither officer until the point at which he was arrested. Since the defendant elected not to testify, there is no direct evidence that hesubjectively believed he was detained, and, on all the evidence, I do not infer such psychological detention. [23] In R v Evans 2012 ONSC 3928 the Supreme Court of Canada held that s. 10(

a) requires that an arrested or detained personunderstand the reason therefore. In the normal course an officer will tell the person the reason. However, this is not necessary if thecause can be readily inferred from the context or circumstances. In R v Nguyen 2008 ONCA 49 , [2008] O.J. No 219 (ONCA)it was held that that s. 10(

a) does not depend on a specific formula. What is necessary is that the person understands, whether it bethrough verbal instruction or the context of the investigation. [24] There can be no doubt that the defendant understood why the police had arrived and what they were investigating. Bothofficers made it clear that they had had responded to a report of a vehicle collision. This was communicated to the defendant as he stoodbeside his damaged vehicle, away from the location of any such collision. Indeed, in response to a caution advising him of this, thedefendant responded, “I totally understand.

Within minutes he was arrested for the impaired charge before the court. [25] Three duties on state authorities arise under s. 10(b): Inform the detainee of the right to counsel. Provide a reasonable opportunity to exercise this right if counsel is desired. Curtail questioning and compulsion to make a decision or participate in a process that could ultimately have an adverse effect at aneventual trial, until that reasonable opportunity has been exercised. These duties are not engaged every time the police interact with a person; they arise upon arrest or detention.

As I have explained, thedefendant was not detained until arrested by P.C. Morrison. Thereafter, the police complied with their obligations under s. 10(

b) of theCharter.

RPG:

Section 8 [26] Section 254(3) of the Criminal Code requires that the officer have reasonable grounds to believe that within the preceding threehours, the accused has committed, or is committing an offence under s. 253. What this means is well established: In R. v. Storrey (SCC), [1990] 1 S.C.R. 241, it was held that the officer must believe he/she has reasonable and probable grounds to act andthis subjective belief must be objectively reasonable. Judicial scrutiny of reasonable and probable grounds for a breathalyzer demandmust recognize the context within which the police officer's obligation operates.

An officer must make a quick but informed decisionabout whether a driver is impaired. In this context, the grounds for a breath demand are not onerous. It must not be inflated to the contextof testing trial evidence. Neither is it to be so diluted as to threaten individual freedom: R. v. Censoni [2001] O.J. No. 5189 (S.C.J.). Inother words, there must be enough to justify laying a charge but this does not mean a prima facie case or proof beyond a reasonabledoubt. [27] P.C.

Morrison articulated his grounds as follows: Information received about a motor vehicle having struck a tree, after whichthe driver left the scene and was followed to the home where the defendant was found. He observed the defendant standing near adamaged SUV in the driveway. He overheard a woman tell P.C. Rabishaw that the damaged vehicle belonged to her boyfriend and thathe had just arrived. In speaking to the defendant, he detected a strong odour of alcohol on his breath and noted that his eyes were glossyand bloodshot and that he continued to lean on the vehicle.

After being cautioned, the defendant said he had been at a friend’s houseand came to his girlfriend’s house, but did not know how the vehicle was damaged. The defendant said he had consumed six beers at thefriend’s home. [28] It cannot be seriously disputed that the reasons given by P.C Morrison in arresting the defendant amount to reasonable andprobable grounds, as set out in Storrey. The Defence, however, argues that I should not accept these reasons because the two officers onscene provided inconsistent testimony about the matter. That is, P.C.

Rabishaw did not notice most of the indicia of intoxicationreported by P.C. Morrison. This is a valid consideration, but I am not troubled by it. Both officers observed the defendant to sway backand forth. I accept the submission by the Crown that the fact that P.C. Morrison testified to other factors is not a reflection ofuntruthfulness or inaccuracy but readily explained by the varied levels of interaction with the defendant in the short period of time beforehis arrest.

Admissibility of Statements at Common Law [29] The defendant challenges the admissibility of the statements he made in conversation with the intoxilyzer technician. In R v.Oickle, 2000 SCC 38 , [2000] 2 SCR 3, it was held that, at common law, statements to a person in authority requires proofbeyond a reasonable doubt that they are voluntary.

The Supreme Court of Canada also noted that voluntary means the person made afree choice to speak, rather than having his/her will overborne by threats or promises, oppressive circumstances or a lack of an operatingmind. [30] The impugned statements are those made before the arrest and the conversation with the intoxilyzer technician between thebreath tests. The Defence argues that the former can only be relied upon for grounds to arrest and not for the truth. It is commonground that, in general, statements arising from traffic stops or RIDE programs are not admissible for the truth.

However, this does notextend to all statements made ‘at the roadside’. In R v Guenter, [2016] O.J. No 3857, the Court of Appeal for Ontario held that driversare not detained when police arrive at an accident scene and ask general questions. Answers provided at that time are not statutorilycompelled and may be admissible to prove the offence. On this basis, the defendant’s statements to P.C. Rabishaw and P.C. Morrisonconfirming his identity as the driver and the time of driving are admissible to prove those facts. There is no suggestion of inducement,threats, or oppression.

Moreover, the defendant had been cautioned and said he “totally understood”. [31] The defendant also challenged the admissibility of the statements made in breath room. Relying on decisions of other trialcourts, the Defence argument is essentially this: The practice of asking a detainee questions in the 17 minute interval between the breathtests is a disguised attempt to obtain incriminating evidence. It is suggested that the questions, which include matters of health, would beviewed by the detainee as part of the breath demand. That might be a compelling argument in other circumstances.

However, in thiscase, notwithstanding that the defendant said he did not want to say anything, there is nothing to support an inference the defendant wasconfused about the nature of the questions. On the contrary, it is clear he spoke freely and voluntarily - after a secondary caution (that iscaptured on video). This conclusion is bolstered by the fact that he had also previously told other officers that he was the driver and hadconsumed alcohol. Impairment

[32] In R v Bush 2010 ONCA 554 , [2010] O.J. No 3453 the Ontario Court of Appeal reiterated that the offence of impaireddriving is established where the Crown proves any degree of impairment. In support of the argument that this has not been proven, theDefence points to inconsistencies in the testimony of the police and civilian witnesses. There are inconsistencies, but they are notsignificant. Moreover, there is much in common in this evidence. [33] PC Morrison and PC Rabishaw observed the defendant to sway from side to side, suggesting problems in maintaining balance.

The former also detected indicia of intoxication with respect to breath and speech. The intoxilyzer technician noted that the defendanthad a moderate odour of alcohol, fair to slurred speech, and glossy, bloodshot eyes. [34] Mr. Loder and Ms. Boyd both attest to erratic driving by a man driving the SUV (described as black by him and dark by her). Both heard a loud bang and saw that the vehicle had struck a mailbox and continue driving as debris from it fell on the road. Ms. Boydadded that before the collision, the vehicle hit curb numerous times. Mr. Loder followed the vehicle to 1105 Tall Pine while calling 911.

Identity [35] I have no doubt the man driving the SUV was impaired and that his actions constituted a marked departure from the standardsof a prudent driver, such that he is also guilty of dangerous driving. I also have no doubt that the man is the defendant. The latteradmitted this in several statements to the officers. Even if that challenged evidence had not been ruled admissible, the balance of theevidence proves the matter in issue: the observations by Mr. Loder and the presence of the defendant beside the damaged vehicle, inpossession of keys to it, reveal what happened and who is responsible.

On this basis, and having dismissed the Charter motions, the“Over 80” charge has also been established. Result [36] The Crown has met its burden of proof. The defendant is found guilty of all charges. Released: September 1, 2017 Signed: Justice J. De Filippis [1] The delay in completing this matter should be explained: After the second day of trial, the case was adjourned to March 30 forsubmissions. That date was vacated, and the case further adjourned to May 19, because Defence counsel had a medical appointment. On May 19, the parties agreed to file written submissions.

I received those in July and August. [2] The defendant is charged in a separate Information with failing to report an accident, contrary to

section 199 of the Highway TrafficAct. He was not arraigned on this charge and it will be spoken to at the conclusion of the criminal proceedings. [3] The Defence Charter motion had also included a claim that

section 7 had been breached. This was abandoned during the trial.