R. v. Penny, 2016 ONCJ 811

ONTARIO COURT OF JUSTICE CITATION: R. v. Penny , 2016 ONCJ 811 DATE: December 21, 2016 COURT FILE No.: Red Lake, Ontario 15 1296 BETWEEN: HER MAJESTY THE QUEEN — AND — LORNE PENNY Before Justice Peter T.

Bishop Heard on October 14, 2016 Reasons for Judgment released on December 21, 2016 Sarah Burden .......................................................................................... counsel for the Crown Aaron Seib ................................................................. counsel for the defendant Lorne Penny BISHOP J.: [ 1 ] Lorne Penny stands charged that on or about the 17 th day of September, 2015 in the Municipality of Red Lake while his ability to operate a motor vehicle was impaired by alcohol did have care and control of a motor vehicle contrary to Section 253 (1) (

a) of the Criminal Code ; and further that [ 2 ] Lorne Penny on or about the 17 th day of September, 2015 at that Municipality of Red Lake having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood did have care and control of a motor vehicle contrary to Section 253 (1) (

b) of the Criminal Code . EVIDENCE OF JOEY MATURA [ 3 ] Constable Matura is employed by the Ontario Provincial Police and was on general law enforcement from 6:00 p.m. to 6:00 a.m. on September 17, 2015. [ 4 ] At 5:48 p.m. Constable Matura was advised of a traffic complaint regarding a possible impaired driver who was just refused service at the beer store on Hamel Road in the Municipality of Red Lake and had departed that premises in a silver pickup truck with Ontario license plate AF21485. [ 5 ] Constable Matura observed a pickup bearing the same license plate parked at the LCBO/Sobeys parking lot.

A male, later identified as the accused, was observed in the driver’s seat with the door closed and the vehicle was not running. The vehicle was parked not within the parking lines and to the right hand side of a telephone pole. [ 6 ] Constable Matura pulled up behind the vehicle and attended to the driver’s door and knocked on the window. [ 7 ] The accused seemed surprised and Constable Matura motioned to him to wind the window down. The driver did not immediately comply and Constable Matura opened the driver’s door.

[8] Constable Matura could smell a strong odour of alcohol from his breath, his speech was slurred, and his response initiallywas inaudible. The accused’s eyes were glossy and he held up the keys. [9] The accused was looking for his driver’s license which was on the right hand side of his wallet and clearly visible to theofficer. The accused pulled out cards from his wallet and appeared uncoordinated. [10] The officer pointed out the driver’s license and the accused then handed it over. [11] At 5:54 p.m., the accused was placed under arrest and he turned the motor vehicle keys over to the officer.

The driverappeared unsteady on his feet but did not appear to have a high level of impairment. [12] The accused was read the caution and rights to counsel at 5:54 p.m. and at 5:55 p.m. the breath sample demand was made andthe accused requested to speak to duty counsel. [13] At 5:58 p.m., the accused defecated his pants which odour masked the smell of alcohol. [14] The officer transported the accused back to the detachment and arrived at 6:00 p.m.

The accused was placed in a holding celland at 6:05 p.m., the officer called duty counsel and advised Constable Schmidt, the qualified breathalyzer technician of his grounds forthe arrest. [15] At 6:15 p.m., duty counsel called and the accused had a private conversation with him which was completed at 6:24 p.m. [16] At 6:25 p.m. the accused was handed over to Constable Schmidt, a qualified Breathalyzer technician. [17] The breath samples were completed. [18] The first breath sample taken at 6:29 p.m. resulted in a reading of 100 milligrams of alcohol in 100 millilitres of blood and thesecond breath sample that was taken at 6: 50 p.m. and resulted in a reading of 90 milligrams of alcohol in 100 millilitres of blood. [19] The notice of intention to produce a certificate of analysis and the certificate of a qualified Breathalyzer technician were filedas Exhibit 1 and 2 respectively.

EVIDENCE IN CROSS EXAMINATION [20] Constable Matura stated that he had an approved screening device in the car but did not use it. He had the accused underobservation for approximately 45 seconds before he decided to charge him.

When first approaching the window the accused wasstartled and let out a noise described as a yelp. [21] The officer relied upon the smell of alcohol on the accused’s breath, the lack of coordination and fumbling with his walletand not being able to recognize his driver’s license although it was clearly visible; glossy eyes: some trouble with his speech and thereliance on the complaint from the employee of the beer store that a gentleman resembling the accused’s description was possiblyimpaired and was driving a vehicle with the same license plate and was refused service at the beer store. [22] On consent, the parties filed a DVD showing the accused in the breath sample room which was viewed by the Court.

POSITION OF THE DEFENCE [23] The accused elected not to give evidence and rely upon the high onus placed on the Crown attorney. [24] The defense alleges that there has been a Charter breach of

Section 8 and 9 being arbitrary detention and unlawful search asthere was no authority to stop the vehicle pursuant to the Highway Traffic Act in a parking lot. The defense’s position is that the accusedwas detained from the time that Constable Matura opened the door.

No rights to counsel were read immediately and any attempt togather evidence thereafter was therefore prohibited. [25] The cases of R v Orbanski; R v Elias, 2005 SCC 37 , 2005 S.C.C. 37, 2SCR3 (SCC) and R v Ackerman, 2014 NLCA26, are distinguished on the facts as the law in those jurisdictions allow stopping of vehicles in a parking lot pursuant to Provinciallegislation. [26] The defense submits that in Ontario there is no authority to have the police check an individual for sobriety in a parking lot. [27] The defense also submits that there was a

Section 8 and

Section 9 breach which must be analyzed together.

The Court musttake an objective view as the officer here rushed to a precipitous demand based on scanty evidence. [28] The accused is also concerned with respect to the officer not using an approved screening device when one was readilyavailable and decided to charge directly with impaired care and control and impaired over .08. [29] The defense directs the Court to Her Majesty the Queen Respondent and Simon AU-Yeung 2010 ONSC 2292, which standsfor the principle that evidence must be excluded pursuant to Section 24 (2) of the Canadian Charter of Rights and Freedoms if theinvestigating officer cannot show probable cause and there is a significant breach of the accused’s Charter of Rights.

POSITION OF THE CROWN [30] The Crown’s position is that Section 254 (3) of the Criminal Code allows a police officer, upon reasonable grounds, torequire an individual, as soon as practical to provide samples of their breath and provided that the detention is not arbitrary or unlawful.

[31] It is acknowledged that motor vehicle stops affected by state agents must be pursuant to the Criminal Code or the commonlaw or regulatory legislation. [32] The Crown acknowledges the ratio in R v Dillon [2006] O.N. OJ No.1366 32 MVR (5th) that stops on private property andparking lots are not governed by the Highway Traffic Act. [33] In R v Mann [2004] S.C.C. 52 and R v Dedman (SCC), [1985] 2 SCR 2, a two –pronged analysis isapplicable. The first stage requires a consideration of whether the police conduct falls within the general scope of any duty imposed onthe officer by statutory or common law.

It has been held that at common law, the main duties of a police officer are the preservation ofthe peace, the prevention of crime and the protection of life and liberty. [34] With respect to the second stage, the Crown must demonstrate police conduct was a justifiable use of the powers associatedwith the duty to prevent crime or protect life. The Court must consider the necessity and the reasonableness of the interference withliberty. And assess the evidence in the light of the nature of liberty interfered with and the importance of the public purpose served.

Abrief detention to check for sobriety is a minimal infringement of liberty when compared to the public interest. [35] In this case, the investigating officer found the accused in the driver’s seat of the motor vehicle and he wanted to ensure thathe was not impaired and did not pose a threat to the public. Therefore, this was not an arbitrary detention, nor was there an unlawfulsearch and seizure. [36] With respect to

Section 10 (b), rights to counsel, this right is triggered immediately upon the existence of a detention. Policemust immediately inform the detainee of right to counsel as soon as there is a detention. [37] In Orbanski, the Supreme Court of Canada justified the suspension of a person’s

Section 10 (

b) Charter Rights prior tomaking inquiries as to whether the driver had been drinking and ordering the driver to perform a sobriety test. This suspension applies toall impaired investigations, including when a motor vehicle is parked in a parking lot. It is not restricted to situations where a policeofficer stops a vehicle in accordance with Provincial legislation. [38] With respect to reasonable and probable grounds for an approved instrument demand, this requires the officer to objectivelyprovide reasonable and probable grounds for his belief.

The existence of reasonable ground depends on whether or not an individual,standing in the shoes of the officer, and with the knowledge and experience of the officer, would believe that there are reasonable andprobable grounds for making the arrest. [39] As stated in R v Shepherd 2009 SCC 35 , [2009] 2 S.C.R527, 2009 SCC - 35, regarding the grounds and the contextof the breath sample demand is not an onerous test. There is no requirement that an officer make out a prima facia case for convictionbefore making a demand. There is no requirement that there be evidence of bad driving before reasonable grounds exist.

In fact, theremay be other explanations for one or more indicia does not take away from the existence of reasonable grounds. Confusion itself can bea sign of impairment. DECISION [40] In these fact circumstances, I am finding that Constable Matura had reasonable and probable grounds to arrest the applicantfor impaired care and control. [41] The officer received information about a possible impaired driver, being refused service at the beer store, and the exactlicense plate number of the vehicle. The officer detected a strong smell of alcoholic beverage on the accused’s breath.

He also observedhis speech was slurred and the accused was difficult to understand and had glossy eyes. The accused had difficulty locating his driver’slicense and appeared uncoordinated and also appeared unsteady on his feet. In these circumstances, any reasonable person standing inthe shoes of the officer would conclude that the driver’s ability to operate a motor vehicle was impaired by alcohol.

This officer hadinvestigated many such cases and had approximately 6 years of experience with the Ontario Provincial Police. [42] The Court had an opportunity to view the DVD and the accused’s appearance in the police station giving breath samples. Heappeared very talkative, complied with all requests, and sat quietly in the place assigned. This does not detract from the reasonable andprobable grounds that the officer observed at the incident some one-half hour before giving the first sample.

I am finding that thedemand for the breath sample was lawful and the accused had an obligation to comply. [43] The accused was occupying the driver’s seat and the presumption under s 258 applies. The accused elected to not giveevidence and rely upon the high burden of proof on the Crown, There is no evidence to the contrary. [44] I am also finding that there was no

Section 8 or 9 Charter breach as this was not an arbitrary detention but a continuation ofan investigation based on a complaint by another member of the public. [45] It was in the public’s interest to identify the accused, to prevent a continuation of an alleged offence. [46] The same basic principles apply for reasonable and probable grounds for an arrest under Section 495 (1) of the CriminalCode as under Section 254 (3) of the Code. There was no

Section 8, 9 or 10 breach of the Charter. [47] As such, there is no need to go through the analysis with respect to exclusion of evidence under Section 24 (2) of the CharterRights and Freedoms. [48] In these circumstances a conviction for care and control, over 80mg alcohol per 100ml blood will enter, and a conditionalstay will enter with respect to the impaired care and control.

Released: December 21, 2016 Signed: “Justice Peter T. Bishop”