R. v. Mazurkiewicz, 2012 ONCJ 551

COURT FILE No.: Brampton 09-15209 DATE: August 27, 2012 Citation: R. v. Mazurkiewicz , 2012 ONCJ 551 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HER MAJESTY THE QUEEN — AND — boguslaw mazurkiewicz Before Justice Richard H.K. Schwarzl Heard on July 19 and December 12, 2011; June 5, 2012 Reasons for Judgment released on August 27, 2012 Mr. Vickramjeet Ajula............................................................................................ for the Crown Mr.

Robert Jagielski.............................................................................................. for the Accused SCHWARZL, J.: 1.0: INTRODUCTION [ 1 .] The Accused, Boguslaw Mazurkiewicz, was found by a concerned citizen sleeping in his pickup truck on a residential street in Mississauga just before Christmas 2009. Police were called and investigated the situation. As a result of that investigation, Mr.

Mazurkiewicz was charged with care or control of a motor vehicle while impaired by alcohol and care or control of a motor vehicle with excess blood alcohol. [ 2 .] A trial was held in which the prosecution led evidence from the civilian complainant and three police officers. The Crown also adduced the expert toxicology report of Dr. Michael Corbett to calculate the blood alcohol concentration at the time the Accused was first encountered by the police. The defence called no evidence. 2.0: FACTS [ 3 .] At around 5:30 p.m. on December 22, 2009 Mr.

Mark Ruzycki arrived for a visit at his parent’s house on Hellman Crescent in Mississauga. When he parked he noticed the Accused’s pickup truck stopped in front of the house with its engine running and its headlights on. The truck was parked well away from the curb. Assuming that the driver was waiting for somebody, Mr. Ruzycki paid no further heed and entered his parents’ home where he stayed or an hour or more. [ 4 .] When Mr. Ruzycki came outside to leave, he noticed the truck was still there, in the same situation as when he arrived.

He approached the driver’s side and noticed the Accused who was in a sitting position in the driver’s seat with his head tilted back. The Accused appeared to be either asleep or unconscious. There was no response when Mr. Ruzycki banged on the partially opened window, nor when he reached in and shook the Accused’s shoulder. Mr. Ruzycki could not smell any alcohol from inside the truck nor did he observe any alcohol containers in or near it. Concerned for the well being of the Accused, Mr. Ruzycki called the police who arrived approximately ten to fifteen minutes later. [ 5 .] The first officer on scene was P.C.

Mike Chaloupka who arrived at 6:47 p.m. P.C. Chaloupka noticed the Accused’s truck was parked and idling about four feet away from the curb, causing the truck to be a potential obstacle for other motorists. The truck’s

head and tail lights were on and the dash lights were illuminated. The heater was on and the transmission was in park. P.C. Chaloupka reached into the truck and turned the engine off to prevent the truck from being put in motion. [ 6 .] P.C. Chaloupka was able to rouse the Accused from unconsciousness only after shaking his shoulder with increased vigor over several attempts. When the Accused woke up the officer could not smell any alcohol but observed that his speech was slurred, and his eyes were watery and red-rimmed. The Accused was unsteady on his feet when he alighted from his truck requiring P.C.

Chaloupka to assist him. The officer testified that the manner in which the Accused got out of his car was not the way a tired person would, but like someone who had been drinking alcohol. [ 7 .] At 6:52 p.m. P.C. Chaloupka arrested the Accused for impaired care or control because he believed that the Accused had been operating a motor vehicle with alcohol in his system despite not smelling or seeing any alcohol in, on, or around the Accused. Several other times in his career, P.C. Chaloupka has encountered persons under the influence of alcohol who did not smell of the stuff.

The officer based his conclusion of impairment by alcohol on the location of the vehicle, the length of time he was told it had been idling, the difficulty in waking the Accused, his slurred speech, the condition of his eyes, and his poor balance. After being arrested, the Accused told P.C. Chaloupka that he had consumed one drink. P.C. Chalpouka agreed in cross-examination that the Accused’s balance problems and his eyes could have been caused by having been roused from a deep sleep. [ 8 .] P.C. Chaloupka turned custody of the Accused over to P.C.

Chan at around 7:05 p.m. after the two officers discussed the investigation for several minutes. P.C. Chaloupka felt that P.C. Chan was better qualified to continue the investigation because P.C. Chan is an officer whose duties were dedicated to investigating drunk drivers. P.C. Chaloupka searched the Accused’s truck but did not find any alcohol containers. [ 9 .] P.C. Chan testified that P.C.

Chaloupka gave him the following grounds for arresting the Accused: (i.) The officer took a while to wake up the Accused who was sleeping in his vehicle; (ii.) The Accused’s head was resting on the “B-pillar” of the truck cab; (iii.) The vehicle was running with the keys in the ignition; (iv.) The vehicle was parked several feet away from the side of the road; (v.) The breath of the Accused smelled of alcohol; and (vi.) The Accused’s eyes were red and he was unsteady on his feet exiting the vehicle. [ 10 .] P.C. Chaloupka testified that he did not recall where the Accused’s head was resting while sleeping.

I have no doubt that despite P.C. Chaloupka having no present recollection of where the Accused’s head was he must have told P.C. Chan that his head was resting on the B-pillar which is behind the driver’s left shoulder. I come to this conclusion for two reasons. The first is that P.C. Chan would have no reason to have noted it unless it was said to him by his colleague. Secondly, it is consistent with Mr. Ruzycki’s evidence that the Accused was sleeping with his head tilted back. [ 11 .] On the other hand, I find as a fact P.C. Chaloupka did not tell P.C.

Chan that he smelled alcohol on the Accused’s breath as this is in direct opposition to P.C. Chaloupka’s evidence that this was one of only a few occasions he believed a driver to be under the influence of alcohol without smelling it. [ 12 .] P.C. Chan rearrested the Accused for impaired care or control based on what P.C. Chaloupka actually told him, and what he believed P.C. Chaloupka told him. P.C. Chan’s belief that the Accused was impaired was supplemented by making his own observations which included: (i.) The Accused was unsteady on his feet walking to P.C.

Chan’s cruiser; (ii.) The Accused’s truck was parked at an odd angle several feet away from the curb; (iii.) The breath of the Accused smelt of alcohol while seated in Chan’s car; and (iv.) The Accused appeared very tired. [ 13 .] Once inside Chan’s cruiser, the Accused was given his rights to counsel, a police caution, and a breath demand, all of which

was completed by 7:11 p.m. The Accused did not wish to contact a lawyer at that time. Between 7:11 and7:34 p.m. P.C. Chan obtained further details of the situation, including the Accused’s admission he had one drink of vodka earlier in the day, and the officer made notes. At 7:34 p.m. P.C. Chan left the scene with the Accused. [ 14 .] At 7:44 p.m. P.C. Chan and the Accused arrived at the police station. The Accused stumbled as he got out of the police car. Once inside the station, the Accused was booked. P.C.

Chan then called Duty Counsel at 7:51, not because the Accused asked him to but just in case he wanted to speak with a lawyer. When Duty Counsel called back at 8:16 p.m. the Accused spoke to the lawyer in private until 8:23 p.m. following which P.C. Chan turned the Accused over to the qualified technician, P.C. Peel, at 8:24 p.m. [ 15 .] Between 8:01 and 8:08 p.m. P.C. Chan recited to P.C. Peel what P.C.

Chaloupka had told him, namely: (i.) A male was passed out with his head leaning on the driver’s B-pillar of a running vehicle; (ii.) The man had to be shaken several times before he woke up; (iii.) Chaloupka smelled alcohol coming from the man’s breath; (iv.) The man appeared disoriented and confused; (v.) The man’s eyes were red and watery; (vi.) The man was unsteady on his feet; (vii.) The man admitted to having one drink; and (viii.) P.C. Chaloupka formed the opinion the man was in care or control after consuming alcohol. [ 16 .] With respect to the grounds that P.C. Chan attributed to P.C. Chaluoupka, P.C.

Chaloupka did not tell P.C. Chan that the Accused appeared disoriented and confused, nor did he tell P.C. Chan that he smelled alcohol on the Accused’s breath. However, the smell of alcohol on the Accused’s breath while in Chan’s cruiser was a factor that P.C. Chan took into consideration in forming his own reasonable and probable grounds. [ 17 .] Based on what P.C. Chan told him, P.C. Peel formed a belief that the Accused was impaired by the consumption of alcohol and made his own breath demand, separate from the one made by P.C. Chan at the roadside. P.C.

Peel was ready to take breath samples after he received grounds from P.C. Chan at around 8:10 p.m. [ 18 .] After the Accused spoke to Duty Counsel P.C. Peel received two suitable samples of the Accused’s breath directly into an Intoxilyzer 8000C approved instrument. The first sample was taken and analyzed at 8:42 p.m. resulting in a blood alcohol concentration of 231 milligrams of alcohol per one hundred millilitres of blood. The second sample was taken and analyzed at 9:07 p.m. with a blood alcohol concentration of 220 milligrams of alcohol per one hundred millilitres of blood. [ 19 .] Dr.

Corbett’s toxicology report opined that the projected blood alcohol concentration of the Accused at about 6:41 p.m. was in the range of 222 to 268 milligrams of alcohol per one hundred millilitres of blood, based on the lowest truncated reading. Dr. Corbett expressed no opinion regarding impairment. [ 20 .] All of P.C. Peel’s dealings with the Accused in the breath room were captured on video, which was made an exhibit at trial. The Accused hesitated when spelling his name and when he had difficulty providing his house number he stated that he always gets numbers confused.

The Accused appeared very relaxed but sometimes mumbled while speaking with police. Although his voice did not sound slurred in the breath room, he sometimes rushed his words and he had inconsistent and fluctuating volume when he spoke. Other than some speech and memory difficulties, there were no other signs of obvious intoxication inside the breath room. [ 21 .] The Accused made a number of voluntary utterances to P.C. Peel. When asked about an injury to his nose, the Accused seemed unaware of how he got it.

After denying drinking any alcohol he admitted to having a single shot of vodka at his friend’s house in Oakville. When asked if he was sleeping in his truck, the Accused said that he thought he was talking on his phone. 3.0: ISSUES

[22.] The defence raised four issues in this case. The first is that they submit that P.C. Chaloupka did not have reasonable groundsto believe that the Accused was impaired by the consumption of alcohol thus leading to an unlawful arrest. The Crown submits thatreasonable grounds did exist to arrest the Accused for impaired care or control. [23.] Secondly, the defence submits that P.C. Chan falsely attributed to P.C. Chaloupka grounds that P.C. Chaloupka did notobserve or communicate, thus making his and P.C. Peel’s breath demands unreasonable, rendering the breath tests illegal searches andseizures.

The defence submits that the breath test results should be excluded from the evidence. The Crown submits that while P.C.Chan’s inaccurate comprehension of P.C.

Chaloupka’s purported grounds and his recitation of those grounds to the qualified technicianmay have been inaccurate the breath demands were nevertheless lawful and the results should not be excluded from the evidence. [24.] The third issue raised by the defence is the submission that the breath tests were not taken as soon as practicable due to thedelay in leaving the scene and the delay caused by the unilateral decision by the police to call Duty Counsel. The Crown submits thisissue is moot because the prosecution is not relying upon the statutory presumptions and are instead relying upon Dr.

Corbett’s opinionof blood alcohol concentration. [25.] The fourth issue is that the defence submits that the Crown has failed to prove beyond a reasonable doubt that the ability of theAccused to be in care or control of a motor vehicle was impaired by the consumption of alcohol because the absence of the odour ofalcohol raises a doubt that the impairment could have been caused by something else such as illness or fatigue. The Crown submits thaton the totality of the evidence that it has proven the impaired care or control charge notwithstanding the absence of the odour of alcoholin P.C.

Chaloupka’s presence. 4.0: ANALYSIS 4.1: Did P.C. Chaloupka have reasonable grounds to believe the Accused was impaired by alcohol? [26.] Grounds to arrest must be honestly and subjectively held by the officer and his honest belief must be objectively justified: R.v. Shepherd, 2009 SCC 35 , [2009] S.C.J. No. 35; R. v. Bernshaw (1995), (SCC), 95 C.C.C. (3d) 193 (S.C.C.)at p. 216; R. v. Storrey (1990), (SCC), 53 C.C.C. (3d) 316 (S.C.C.); R. v.

Bush, 2010 ONCA 554 , [2010] O.J.No. 3453 (C.A.). [27.] There is no requirement that there be direct evidence of alcohol consumption either through observation of the individual or bystatement from him or her, as opposed to a reasonable inference, in order to satisfy the requirement of reasonable and probable grounds: R. v. Heidemann, [2002] O.J. No. 2114 (S.C.J.); R. v. Costello, [2002] O.J. No. 93 (C.A.) at ¶ 2. [28.] The officer is not required to establish a prima facie case for conviction before making the arrest, or to consider all of thealternative explanations for the observed conduct: R. v.

Mitchell, [2004] O.J. No. 435 (S.C.J.) at ¶ 10; R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (C.A.) [29.] “Reasonable grounds” is essentially an opinion. As such, the belief, based on perceived facts, is frequently a compilation of astate of facts that are too subtle and complicated to be narrated separately and distinctly. In dealing with probabilities relating to humanbehaviour, a trained officer is entitled to draw inferences and make deductions based on his experience: R. v. Censoni, [2001] O.J.

No.5189 (S.C.J.) [30.] The Court must consider the totality of the evidence for the witness’ reasonable ground to believe the subject is impaired, notany individual sign on its own: R. v. Huddle, 1989 ABCA 318 , [1989] A.J. No. 1061 (C.A.); R. v. Saulnier, [1990] B.C.J. No.161 (C.A.); R. v. Elvikis, [1997] O.J. No. 234 (Gen. Div.) at ¶ 24; R. v. McMillan, [2003] O.J. No. 4284 (S.C.J.) [31.] P.C.

Chaloupka took into account the following factors in reaching his conclusion of impairment by alcohol: (i.) the complaint of an awkwardly parked vehicle idling purposelessly for a long period of time; (ii.) the substantial difficulty in waking the Accused; (iii.) the slurred speech, red eyes, and poor balance of the Accused once he woke up;

(iv.) the manner of the poor balance being less like someone roused from a deep sleep and more like someone who had been drinking; and (v.) his experience with some people who are under the influence of alcohol but who do not have an odour of alcohol. [ 32 .] It was not necessary for the officer to eliminate fatigue, illness or other possible causes to come to a honest and reasonable belief that it was alcohol that impaired the Accused. Based on the evidence as a whole including the officer’s prior experience, I am satisfied that P.C.

Chaloupka had reasonable grounds to believe that the Accused was impaired by the consumption of alcohol notwithstanding that there was no smell of it on the Accused nor was alcohol found in the Accused’s truck. [ 33 .] The arrest of the Accused for impaired care or control of a motor vehicle was lawful in these circumstances. The police were lawfully situated to make a breath demand upon the Accused. 4.2: Were the breath demands of P.C. Chan and P.C. Peel lawful? [ 34 .] P.C. Chan’s demand was based on what he said P.C. Chaloupka told him as well as his own observations. I have found as a fact that P.C.

Chaloupka did not tell P.C. Chan that he smelled alcohol on the breath of the Accused. P.C. Chan was a generally reliable witness who was careful and honest in his evidence. I find that P.C. Chan mistakenly believed that P.C. Chaloupka told him at the scene that the Accused smelled of alcohol at the time of his arrest. [ 35 .] P.C. Chan smelled alcohol on the Accused once he was lodged in the rear of Chan’s cruiser. Therefore, even if P.C. Chan was wrong about what P.C. Chaloupka told him about the odour of alcohol, P.C.

Chan considered his own observation in this regard prior to making his breath demand. [ 36 .] With respect to P.C. Peel’s breath demand, he relied entirely on what P.C. Chan told him. Two elements of that information, namely that P.C. Chaloupka smelled alcohol on the Accused’s breath and that P.C. Chaloupka felt the Accused was disoriented and confused, are simply wrong. However, P.C. Chan certainly smelled alcohol on the Accused’s breath. Had he attributed the observation of the odour of alcohol to himself and not P.C. Chaloupka, this would have been factually correct.

Despite an error in citing the correct source of the information that the Accused smelled of alcohol, P.C. Peel was not wrong to rely on the fact itself in deciding whether he had grounds to make his own demand. [ 37 .] Excising the incorrect statement by P.C. Chan that P.C. Chaloupka thought the Accused was disoriented and confused, it was reasonable on the remainder of the information for P.C. Peel to believe that the Accused was impaired by alcohol while in care or control of a motor vehicle. [ 38 .] Taking the evidence as a whole, I am satisfied that the breath demands of both P.C. Chan and P.C.

Peel were lawful. Indeed, P.C. Peel’s demand was superfluous insofar as he was entitled to rely on P.C. Chan’s breath demand to take and analyze samples of the Accused’s breath. [ 39 .] The arrest was lawful and so were the breath demands. The police did not violate any of the rights of the Accused. The Charter application is dismissed.

The breath test results will not be excluded from the evidence. 4.3: “As Soon As Practicable” [ 40 .] I agree with the Crown that there is no “as soon as practicable” issue in this case because the prosecution did not rely on the statutory presumptions set out in section 258(1) of the Criminal Code of Canada . The reliance upon the expert toxicological evidence of Dr. Corbett rendered this issue moot. [ 41 .] However, had the Crown relied on the statutory presumptions, I would nevertheless have found the tests to have been taken as soon as practicable.

The phrase "as soon as practicable" means that the tests must be taken within a reasonably prompt time under the particular circumstances of the case. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably in all of the circumstances. The Crown was not required to provide a detailed explanation of what occurred during every minute that the accused was in custody: R. v. Vanderbruggen

(2006), (ON CA), 206 C.C.C. (3d) 489 (Ont. C.A.). [42.] The delay created by P.C. Chan after making his breath demand and not leaving the scene for over twenty minutes wasreasonable because he was making further inquiries into the details of the situation and he made notes. Often, as in this case, officers arechallenged on their notes and the contemporaneity thereof. Taking time to make notes while the matters are freshest in the officer’smemory is a justifiable delay in bringing a subject to a qualified technician: R. v. Thibert, [2003] O.J.

No. 1510 (S.C.J.) at ¶ 31. [43.] It was argued that when the police called Duty Counsel without any request by the Accused to do so, they caused anunreasonable delay in taking the breath samples. The qualified technician was ready to administer the breath tests as early as 8:10 p.m.but did not do so until after 8:24 p.m. because the Accused was on the phone with Duty Counsel between 8:16 and 8:23 p.m. It wouldunfair to criticize the police for seeking to protect the implementational component of the Accused’s right to counsel where the Accusedhas not expressed a desire to talk to a lawyer before the breath tests.

The fact that the Accused accepted the offer to speak to a lawyersimply demonstrates that he in fact wished to exercise his right to legal advice. Had the police not called Duty Counsel, I suspect theymay have been chastised for failing to call the free lawyer.

In my view the time taken in this case to assist the Accused in getting legaladvice was reasonable, if not charitable, conduct of the police. [44.] Looking at the overall time period and the conduct of the police, had it been necessary to do so, I would have found that theofficers performed their duties in a reasonably expeditious manner throughout and that the breath tests were taken as soon as practicable. 4.4: Was the ability of the Accused to be in care or control of a motor vehicle impaired by the consumption of alcohol? [45.] In the breath room, the Accused did not appear to display any gross signs of intoxication of alcohol other than some speechand memory problems, but this was two hours after he was shaken out of a deep slumber while stopped askew on the roadway in the lateafternoon.

It is clear that the Accused had been drinking: the approved instrument detected the presence of alcohol in his blood and theAccused confessed to P.C. Peel that he consumed vodka in Oakville. Although neither Mr. Ruzycki nor P.C. Chaloupka smelled alcohol,P.C. Chan did. Looking at the evidence as a whole, I am convinced that the deep slumber was alcohol-related unconsciousness.

Hisstumbling out of the cruiser on arriving at the station and his speech and memory problems in the breath room confirm that the Accusedwas intoxicated by alcohol while in care or control of his truck. [46.] I find that the Crown has proven beyond a reasonable doubt that when Mr. Ruzycki and P.C. Chaloupka first encountered theAccused, his ability to be in care or control of a motor vehicle was impaired by the consumption of alcohol. 5.0: Conclusions [47.] Both charges have been proven beyond a reasonable doubt.

I find the Accused guilty of Count 1, Impaired Care or Control andguilty of Count 2, Care or Control with Excess Blood Alcohol. The Crown will advise me which count I am to enter a conviction uponand which count is to be judicially stayed. ORIGINAL SIGNED BY JUSTICE R.H.K. SCHWARZL _____________________________________ Richard H.K. Schwarzl, Justice of the Ontario Court of Justice