R. v. Kelly, 2019 ONCJ 4

ONTARIO COURT OF JUSTICE CITATION: R. v. Kelly , 2019 ONCJ 4 DATE: January 7, 2019 COURT FILE No.: Guelph 998 4611 17 4471 BETWEEN: HER MAJESTY THE QUEEN — AND — Timothy KELLY Before Justice M.K. Wendl Trial Heard on December 19, 2018 Reasons for Judgment released on January 7, 2019 Mr. T. Meehan....................................................................................... counsel for the Crown Mr. B. Starkman................................................... ………. counsel for the defendant Kelly WENDL J.: [ 1 ] Mr.

Kelly was charged with impaired driving and driving with over 80 milligrams of alcohol per 100 millilitres in his blood. His defence counsel Mr. Starkman filed a Charter application on his behalf. After arraignment, the Charter Motion was summarily dismissed because it did not provide a factual basis in support of the allegations of breach. By the end of the trial the Crown had withdrawn the charge of impaired and Mr. Starkman applied successfully to bring back his Charter application based on his cross- examination of Officer Ladouceur.

Once the dust settled this court was left with two issues to decide: 1) Whether Officer Ladouceur had reasonable and probable grounds to arrest and make a demand of Mr. Kelly; and, 2) Whether service of the breath certificate was properly effected pursuant to section 258 (7). Reasonable and probable grounds [ 2 ] Officer Ladouceur was on duty on speed patrol on the Hanlon Parkway in Guelph. At 1:52 a.m. he saw a Toyota SUV coming off a ramp onto the highway. He activated the radar and he noticed the vehicle was driving at 97 km an hour in a 70 km zone. He activated the cruiser’s emergency lights.

He noticed that the Toyota crossed over the middle line with both the driver's side wheels. Officer Ladouceur indicates that the vehicle went over the middle line by a foot or two. The vehicle pulled over normally. He asked the driver for ownership, insurance and driver's licence. The officer observed a strong odour of alcohol coming from the driver. The driver initially gave the officer his Ontario Health Card and the ownership for the vehicle. Mr. Kelly did not hand over the insurance slip to the officer. It was only after Officer Ladouceur reminded Mr. Kelly that Mr. Kelly provided the insurance slip. Mr.

Kelly had difficulty finding his driver's licence after returning his health card into the wallet. He went through several cards and told Officer Ladouceur that he must have lost it. Officer Ladouceur noticed the driver's licence clearly in Mr. Kelly's wallet. Mr. Kelly also at one time pulled out the driver's licence and put it back into his wallet. [ 3 ] During the course of the conversation, Officer Ladouceur noticed that Mr. Kelly had watery and glossy eyes. During that same conversation Mr. Kelly indicated that he had consumed no alcohol, then shifted his evidence to one beer and then two beer.

[ 4 ] During cross-examination, Officer Ladouceur indicated that he did not notice many of the usual symptoms of impairment such as slurred speech, red eyes, and fumbling with documents (not the same as missing documents when you are looking for them). [ 5 ] On the whole, the grounds that can be relied upon for the arrest are: (1) speeding; (2) the driver's side tires going over the lane by a foot or two; (3) eyes that were glassy and watery; (4) odour of alcohol (5) the defendant produced the wrong identification and it took a lot of time for him to locate the appropriate identification even though it was obvious to the officer; (6) changing the amount of alcohol he drank in his responses to the officer [ 6 ] Mr.

Starkman, for the accused, urges me to consider the lack of usual indicia of impairment such as red eyes, fumbling with documents and not slurring words a s exonerating Mr. Kelly. I disagree. The lack of usual factors of impairment does not equate with exculpatory evidence. They are just that, the lack of usual indicators of impairment.

As the Court of Appeal said in Bush [1] : 56 An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed; Censoni at para. 46.

The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont.

C.A.) at para. 2 ; Wang , at para. 21. [ 7 ] To exemplify the point, if a potential suspect in a drinking and driving investigation had overwhelming indicia of impairment such as slurred speech , odour of alcohol, was swerving all over the road, swayed from left to right when he exited his vehicle and dropped his wallet multiple times when asked to find his driver’s licence, it would be absurd to assert that the lack of red eyes and the fact that the suspect did not stumble should be considered exculpatory. [ 8 ] Ordinarily a finding of the above-mentioned six facts would amount to a finding of reasonable and probable grounds and end the analysis.

However, given one of the responses of Officer Ladouceur in cross-examination, this court must go further. This answer is the foundation for the defence argument on the

section 8 breach. [ 9 ] During the course of his cross-examination Mr. Starkman asked the officer if he balances the symptoms of impairment he noted against the non-symptoms of impairment that were pointed out to him in cross-examination, such as the lack of slurred speech. [ 10 ] Officer Ladouceur indicated that he doesn’t balance those non-symptoms versus the symptoms of impairment he noted. He went on to answer that there were probably a thousand potential symptoms of non-impairment that could have been there. He looks at what he has.

He added that if he had to balance non-symptoms of impairment with those of impairment he would be balancing too many options. [ 11 ] Mr. Starkman for the defendant indicates that the approach the officer takes is a breach because he does not look at the exculpatory information available to him and only looks for inculpatory information when assessing his grounds. [ 12 ] Were this true that may support an allegation of breach. However, I disagree that this is what the officer said.

Superficially it may seem that the officer’s answer indicated that he did not consider exculpatory evidence when making his grounds but that is not the case. Context is important. [ 13 ] First, at the beginning of this segment of the cross-examination Officer Ladouceur indicated that he looked at the investigation as a whole, not piecemeal. Second, the questions directed to the officer were about symptoms of impairment that were not there, not exculpatory evidence.

The actual symptoms consistent with impairment noted by Officer Ladouceur were not undermined in cross- examination. [ 14 ] The officer is required to look at the situation as a whole, which he did, to determine if grounds exist. He is not required to speculate about the myriad of possible symptoms of impairment that do not exist. This is contrary to the law as stated in Bush . [ 15 ] Officer Ladouceur is not required to do a lengthy investigation [2] or even “undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations” [3] .

He is required to conduct an investigation as the circumstances reasonably permit and only disregard unreliable evidence [4] . He i s required to consider exculpatory evidence [5] and he “is required to assess the situation and competently conduct the investigation" [6] .

All of which I find he did. [ 16 ] Again, taking the above-mentioned more extreme example, it would be absurd to consider it a breach that an officer did not take into account the lack of red eyes and the lack of stumbling where the suspect had slurred speech, the smell of alcohol, who was swerving all over the road, swayed from left to right when he exited his vehicle and dropped his wallet multiple times when asked to find his driver’s licence. [ 17 ] Therefore, I find no breach of Mr. Kelly’s

Section 8 rights.

Did Officer Ladouceur serve the certificate of analysis in accordance with section 258(7)? [ 18 ] Officer Ladouceur states that he brought the certificate of analysis to Mr. Kelly while he was in his cell. He states he showed it to Mr. Kelly and explained the contents. Officer Ladouceur indicates that after explaining the certificate of analysis to Mr. Kelly, Mr. Kelly wanted to speak to counsel. Officer Ladouceur left to facilitate access to counsel for Mr. Kelly without giving him the certificate. Officer Ladouceur, after facilitating access to counsel for Mr. Kelly put the certificate in Mr.

Kelly’s property box. [ 19 ] Mr. Kelly did not touch or “handle” the certificate when Officer Ladouceur was explaining its contents at the cell. There is no evidence that Mr. Kelly did or did not take his property from the box where the certificate was located, or if he did take his property what, if anything, he took. There was no evidence called by the Crown as to what disclosure was provided to Mr. Kelly or his counsel. [ 20 ] Section 258(7) states, Notice of intention to produce certificate

(7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (

h) or (

i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate. [ 21 ] Crown counsel indicates that the purpose of section 258(7) is to provide notice. His first submission is that the purpose of the

section was fulfilled by Officer Ladouceur showing and explaining the certificate to him while in his cell. [ 22 ] I disagree. The

section clearly states that not only must notice be given to the accused, but a copy of the certificate as well. As Rose J. stated in Hurlbut [7] , “Reading the Criminal Code as a coherent whole, and particularly this section, Parliament must have meant ‘given notice’ to mean something different than ‘given…a copy’.” [ 23 ] The Crown’s second submission is that the court should find, on the balance of probabilities that a certificate was provided to Mr. Kelly or his counsel in disclosure. However, no evidence was called by the Crown about what disclosure was given to Mr. Kelly or his counsel.

Given that I have no evidence on the point, I am not prepared to find that Mr. Kelly or his counsel received a copy of the certificate by way of his disclosure.

I agree with the reasoning of Miller J.: 30 The trial judge here was not satisfied that the evidence of disclosure given at trial was sufficient to meet the standard of proof, and I would not disturb that finding. 31 The Crown urges me to hold that given the requirements of disclosure in Stinchcombe , a trier of fact should be able to infer that a copy of the certificate was given to the accused in disclosure and it should be for an accused person to raise a Stinchcombe issue if a copy of the certificate was not given.

The Crown submits that an accused should be estopped from challenging the admissibility of a certificate pursuant to s. 258 (7) absent a Stinchcombe argument. In this the Crown relies on R. v. Balen [2002] O.J. No. 5966 (O.C.J.) 32 With respect, this would place an onus on an accused that is not in keeping with s. 258 (7). As noted by the Supreme Court of Canada in R. v. Noble [1977] S.C.J.

No. 68 : These provisions are obviously designed to assist the Crown in proving its case, and as they serve to restrict the normal rights of the accused to cross-examination and saddle him with the burden of proving that the certificate does not accurately reflect his blood alcohol content at the time of the alleged offence, they are to be strictly construed and, where ambiguous, interpreted in favour of the accused. 33 Further, the Ontario Court of Appeal in Mackinnon made it clear that compliance with s. 258 (7) must be proven by the Crown on a balance of probabilities.

I do not accept the Crown's argument in this regard. [8] [ 24 ] The Crown’s final argument is that I can find, based on the evidence I do have, that the certificate was taken by Mr. Kelly when he took his property upon release. [ 25 ] I am not prepared to find that Mr. Kelly took the certificate from his property box on the balance of probabilities. I have no evidence on that point either way. I cannot find one scenario more likely than the other. Or, put another way, I cannot find on the balance of probabilities that he either took or did not take the certificate.

The evidence points equally in each direction so one inference cannot be preferred over the other. The scales of probability cannot be tipped either way. As a result, the Crown has not established that Mr. Kelly received a copy of the certificate on the balance of probabilities. [ 26 ] Since there is no evidence of Mr. Kelly’s blood alcohol level, he is found not guilty. Released: January 7, 2019 Justice M.K. Wendl [8] R. v. El Boury , [2016] O.J. No. 4063