R. v. Sirelpuu, 2011 ONCJ 368

COURT FILE No.: Region of Durham 998 10 14291 DATE: 2011·07·04 Citation: R. v. Sirelpuu , 2011 ONCJ 368 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Harry Sirelpuu Before Justice J. De Filippis Heard on 28 April 2011 Reasons for Judgment released on 4 July 2011 Mr. A. Midwood .......................................................................................................... for the Crown Mr. D.

Lent .............................................................................................................. for the accused De Filippis, J.: [ 1 ] The Defendant was tried on an Information alleging three counts; (1) operating a motor vehicle while his ability to do so was impaired by alcohol, (2) operating a motor vehicle with a blood alcohol level that exceeded the legal limit, and (3) possession of a controlled substance (marihuana). The Defendant applied to “stay proceedings or exclude evidence” based on alleged violations of his Charter rights under sections 8, 10(

a) and 10(b). Notwithstanding this plea, the remedy he claimed is exclusion of evidence pursuant to section 24(2); in submissions, he did not invoke a stay pursuant to section 24(1). At the end of the Crown’s case, the Defendant abandoned his motion pursuant to s 10(

a) and changed the basis of his argument with respect to s. 10(b). He initially pleaded that he had been denied counsel of choice and now claims he did not have a private communication with counsel. Over the objection of the Crown, I agreed to hear this modified motion. In any event, the parties agreed to proceed by way of a blended hearing. The Crown called two police officers as witnesses; their evidence applies to the Charter motions and trial proper. The Defendant testified only with respect to the Charter application. [ 2 ] Cst. Fisher is a member of the Ontario Provincial Police.

On 1 August 2010, she was off duty and returning home from dinner. She was a passenger in a motor vehicle driven by her husband and travelling eastbound on Bloomington Road, in York Region. At about 7:45 PM, her vehicle was overtaken by a truck. Soon after, the road narrowed to two lanes, one in each direction, and Cst. Fisher’s vehicle followed the truck for a distance of 10 to 15 kilometres. During this time she observed the truck to repeatedly swerve for no apparent reason, including crossing the centre line into the lane of oncoming traffic.

The speed of the truck fluctuated but did not exceed the speed limit. This erratic driving was interspersed with periods of proper driving. Believing the operator of the truck to be impaired, Cst. Fisher called 911 and reported these observations as her husband continued to follow the truck. At the village of Goodwood, in Durham Region, the truck turned south on Brock Road and travelled for about five kilometres to Coppins Corners. At this location, the truck pulled into a dirt lot adjacent to a gas station and stopped. Cst. Fisher had described the truck and also provided the plate number to the dispatcher.

Within minutes a police cruiser arrived and an officer approached the truck and appeared to converse with the driver. Cst. Fisher saw the officer arrest that driver. [ 3 ] Cst. Siebert is a member of the Durham Regional Police Service. The information provided by Cst. Fisher to the 911 dispatcher was relayed to him and, at 8:02 PM, he went to Coppins Corner to investigate. He saw the truck in question drive slowly through a gravel lot and stop. The officer activated the cruiser lights, exited his vehicle, and approached the truck. The Defendant was the driver and sole occupant. Cst.

Siebert noticed that the Defendant emitted an odour of alcohol, his speech was “extremely slow”, and his eyes were “droopy and bloodshot”. In response to questions from the officer, the Defendant said he was on his way from Brampton to the casino and had stopped to urinate. When asked if he had had “anything to drink”, he replied “oh, about a dozen”. Based on the information received via the dispatcher and his observations and conversation with the Defendant, Cst. Siebert arrested him for impaired driving. This occurred at 8:15 PM.

The Defendant was told to get out of the truck but he stared ahead and did not move. When the officer repeated his demand to exit the vehicle, the Defendant said, “I heard you” but remained seated. He complied with the third demand to get out of the truck. [ 4 ] The Defendant was handcuffed and taken to the cruiser. The officer noted he took “long deliberate steps”. While seated in the cruiser, the Defendant was advised of his right to counsel. The Defendant stated he wanted to speak to a lawyer and was told he could do so at the station in private.

At 8:19 PM, the officer cautioned the Defendant about making statements and demanded a sample of his breath. There is no dispute that the right to counsel, caution, and breath demand were properly conveyed to the Defended

and understood by him. [5] At 8:23 PM, Cst. Siebert went to the Defendant’s truck to obtain his keys and wallet. On doing so, he smelledmarihuana, searched the centre console, and found a bag of what appeared to be marihuana. He returned to the cruiser and arrested theDefendant for possession of this controlled substance. Later that evening, the officer weighed the substance (one gram) and placed it in asealed envelope (H2922334) which he deposited in the drug locker. A Certificate of Analysis was subsequently received that identifiedthe contents of the sealed envelope tested as marihuana.

This Certificate was filed in evidence, along with an Affidavit with respect tocontinuity of the envelope that had been place in the drug locker. [6] Cst. Siebert transported the Defendant from Coppins Corner to the nearest police station, arriving there at 8:40 PM. Enroute, he noticed a strong odour of alcohol in his cruiser. The Defendant was taken to the “booking sergeant” and asked several standardquestions, including whether had consumed drugs and understood he had a right to counsel. The Defendant said he had consumedmarihuana and requested to speak to duty counsel as he did not have a lawyer.

The police telephoned for duty counsel at 8:55 PM andthe Defendant was placed in a holding cell. At 9:06 PM duty counsel called back and the telephone was given to the Defendant in thecell. The holding cell is a small room with a door. The room is monitored by video but not audio. The videotape in question was playedto the court. It shows the defendant seated on a bench. He rises when the telephone is passed to him and the door is closed.

Whilespeaking on the telephone the cameral angle happens to be focussed on the top of the Defendant’s head; his face is not visible. [7] After his conversation with duty counsel, the Defendant was taken to a nearby room where a qualified intoxilyzertechnician obtained samples of his breath. There is no dispute that these samples were properly taken. According to a Certificateprepared by the technician, and filed as an exhibit, the Defendant’s blood alcohol level was 230, almost three times the legal limit.

Acopy of this certificate was served on the Defendant at 10:41 PM and, several minutes later, he was released on a Promise to Appear. [8] The Defendant is a 46 year old truck driver. He testified that the marihuana in his truck vehicle was not in plain viewand that he was not aware the room in which he had the telephone conversation with counsel was monitored by video. [9] The Defendant submits that all charges should be dismissed for the following reasons:

(1) The officer did not have reasonable and probable grounds to arrest him for impaired driving and demand he provide a breath sample;

(2) It has not been provenbeyond a reasonable doubt that he is guilty of impaired driving;

(3) The officer did not have the right to search his truck and seize thesuspected marihuana;

(4) The Defendant’s admission he had recently consumed marihuana was obtained in violation of his right tocounsel.

(5) With respect to the charge of “over 80”, the breath samples were taken in violation of his right to consult privately withcounsel;

(6) It has not been proven that the substance seized from his truck is, in fact, marihuana. I reject these submissions. [10] I am satisfied the officer had reasonable and probable grounds to arrest the defendant and make the breath demand. Hehad been provided with information that, over the course of 15-20 kilometres, the Defendant had occasionally driven in an erratic andunsafe manner. When dealing with the Defendant the officer noticed physical symptoms consistent with impairment by alcohol. Thisevidence was not seriously or successfully challenged.

Moreover, the officer was told the Defendant had consumed “a dozen” drinks inresponse to the question “have you had anything to drink”. The suggestion that I cannot be certain what this admission refers to is, in thecircumstances of this case, without merit; the question and answer obviously referred to alcohol. The information received, theobservations noted, and the admission of drinking caused the officer to believe the Defendant operated a motor vehicle while impaired. That subjective belief is objectively reasonable.

See: R v Storrey (SCC), [1990] 1 S.C.R. 241 (S.C.C.). [11] The Defendant’s admission about drinking alcohol, while relevant to the issue of reasonable and probable grounds,cannot be considered in determining the charge of impaired driving. Nevertheless, I find that the Crown has proven the offence beyond areasonable doubt. In coming to this conclusion, I note that the Defendant’s vehicle repeatedly swerved and fluctuated in speed. Heemitted a strong odour of alcohol, had droopy bloodshot eyes, spoke very slowly, and walked with long deliberate steps.

The offence inquestion is made out by proof of any degree of impairment, from slight to great; see R v Stellato (SCC), [1994] 2 S.C.R.478 (S.C.C.). This does not mean that any abnormal driving will suffice as this would capture common driving mistakes made every dayby sober people. However, the Defendant was observed driving erratically over a long distance and, when approached by police,exhibited clear and strong physical symptoms of alcohol consumption.

In these circumstances, I have no doubt his ability to operate themotor vehicle was impaired by alcohol. [12] Having found that the Defendant was lawfully arrested, it follows that the officer was justified in searching the motorvehicle control as an incident of arrest. In this regard, I note the vehicle was under the Defendant’s immediate control.

It is alsonoteworthy that the officer detected the odour of marihuana while retrieving the Defendant’s keys and wallet. [13] The Defendant’s challenge to the admissibility of his statement about marihuana consumption is irrelevant; the Crowndid not lead this evidence and does not rely on it. [14] The Defendant does not dispute that his blood alcohol level exceeded the legal limit but argues that the evidencesupporting that charge is inadmissible because his breath samples were taken after violation of his right to counsel.

This argument isbased on the fact that the room in which he had a telephone conversation with duty counsel was under video surveillance. TheDefendant has not persuaded me that his right to counsel was violated. It appears that the video surveillance of the room was a securitymeasure. In any event, that surveillance was not accompanied by audio and it was not otherwise possible for a third party to determinewhat the defendant said to duty counsel. Moreover, the Defendant was not aware of the surveillance and cannot be said to have beeninhibited by it.

There is nothing to suggest the Defendant was deprived of the opportunity to have a full, frank, and private discussionwith counsel) see R v Cairns (ON CA), [2004] O.J. No. 210 (O.C.A.)). Accordingly, I dismiss the Charterapplication and find the Defendant guilty the charge in question. [15] The Defendant points out there are no evidence he owned the truck in which the marihuana was found and I should notfind him in possession of the substance. I disagree. There was an odour of marihuana within the truck and the Defendant was the driverand sole occupant of the vehicle.

I have no doubt he had knowledge and control of the substance. The Defendant also argues that theCrown cannot rely on the Affidavit to establish continuity of the substance seized by the officer unless the envelope in which it was

sealed was made an exhibit at trial. The applicable statutory provision is

section 53 of the Controlled Drugs and Substances Act . The Defendant’s argument with respect to the meaning and applicability of

section 53 need not be considered. I am satisfied that the Crown has established continuity of the substance seized and proven that it is marihuana, without reference to that section. Cst. Siebert put the substance in an exhibit envelope bearing the number H2922334. That envelope was sealed and placed in the drug locker. The Crown tendered a Certificate of Analyst which provides that the analyst received a “sealed and unopened package which bore the following identification marks….H2977334, Siebert 3555” and that the contents were tested and found to contain Cannabis (marihuana).

That is sufficient and, in the circumstances of this case, amounts to proof of guilt. [ 16 ] The Defendant is found guilty of all charges. Released: July 4, 2011 Signed: “Justice J De Filippis”