) ) Her Majesty the Queen Appellant – v. –, 2010 ONSC 6929

CITATION : R. v. Vollett, 2010 ONSC 6929 COURT FILE NO.: 07-2099 DATE: 20101217 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Her Majesty the Queen Appellant – and – James Vollett Respondent ) ) ) ) ) ) ) )))) Kara Vakiparta, for the Crown P. Berk Keaney, for the Respondent ) ) HEARD: June 30, 2010 DECISION ON APPEAL Cornell J.: [ 1 ] This is an appeal by the Crown from a dismissal of “over 80” and impaired driving charges that were brought against the accused/respondent (the “respondent”).

For the following reasons, the appeal is allowed and both charges are remitted to the Ontario Court of Justice for a new trial before another justice. Introduction [ 2 ] This case arose when four good Samaritans, two males and two females, stopped to help the respondent move his car from a ditch into an adjoining parking lot. The respondent remained behind the wheel and drove the vehicle from the ditch while the two young males offering assistance pushed. When the respondent had parked and exited the vehicle, they became concerned that the driver was intoxicated and called 911 to report the incident.

Factual Background [ 3 ] At approximately 00:00 hours on June 2, 2007, Joel Sheer, Katrina Hickui, Jordan Champaigne and Allison Adams were driving home from a party when they observed a vehicle in the ditch. They stopped and the two young men offered to assist the driver to remove the vehicle from the ditch. At the time that they approached the vehicle, the respondent was sitting in the driver’s seat. He remained in the driver’s seat and drove the vehicle out of the ditch while Joel Sheer and Jordan Champaigne pushed.

As a result of concerns about how the respondent had operated the vehicle, and his “swaggering” and “kinda slurred” speech, Sheer and Champaigne concluded that the respondent was impaired and should not be driving. [ 4 ] After the vehicle was out of the ditch, Sheer and Champaigne told the respondent that he should not be driving. The respondent responded by saying that he lived a short distance away and that he would walk home. Sheer and Champaigne then observed the respondent trying to hide behind a mailbox and became concerned that he would operate the vehicle once they had left.

As a result of this, Sheer called the police indicating that a “drunk driver ... drove into the ditch.” The call was received by the police shortly after midnight on June 2, 2007, approximately 15 minutes after the young persons had arrived at the scene. [ 5 ] After this exchange, Sheer and Champaigne walked with the respondent to his house where they each consumed one beer. Sheer and Champaigne then left the respondent’s house to return to their vehicle. [ 6 ] At 12:15 a.m., Officers Kates and Hoskins were dispatched to respond to the 911 call.

Allison Adams and Katrina Hickui met with the officers at the Northstar Convenience Store where they provided a report on what had transpired. At 12:41 a.m., Officers Kates and Hoskins arrived at 4035 Municipal Road 15, the respondent’s residence. At the time of arrival, they observed Sheer and Champaigne as well as the respondent in the his driveway.

One of the two male witnesses then pointed directly at the respondent stating “... he was the male driving the Volkswagen Jetta, the vehicle in the ditch.” [ 7 ] In his evidence, Sheer testified that the respondent’s words were “kinda slurred” and he had concerns about how the respondent was operating his vehicle. From his observations, he believed that the respondent was intoxicated and should not be driving.

[8] In his evidence, Jordan Champaigne testified that the respondent was the driver of the vehicle.

He said that they did notimmediately leave after helping to remove the car from the ditch, “Because he was going back to his vehicle” and “Because we thoughthe was too drunk to drive.” He believed that the respondent was too drunk to drive because he “... kinda swaggered out of his vehicleand it was ... kinda tricky to have a conversation with him.” He was also asked by the respondent to drive his vehicle but declined to doso because he had also been drinking. [9] When they arrived at the respondent’s residence, Constable Kates observed the respondent “swaying on and unsteady on hisfeet,” “alcohol emitting from his breath” and “red and glassy and red-rimmed eyes” as well as “somewhat slurred” speech.

ConstableHoskins observed a “strong odour of alcoholic beverage emanating from Mr. Vollett’s breath”, “weaving” on his feet , unsteady balanceand slow and slurred speech. [10] At 12:43 a.m. on June 2, 2007, Constable Kates placed the respondent under arrest for impaired operation of a motor vehicle. Shortly thereafter, the respondent was advised of his rights to counsel and a breath demand was made by Constable Kates.

They arrivedat the police station at approximately 1:20 a.m. and the respondent spoke with counsel shortly thereafter. [11] At 1:50 a.m., Constable Kates advised Constable Hoskins that he had reasonable and probable grounds to believe that therespondent was impaired and asked that he perform breath tests on the respondent. [12] The first sample of breath taken by Constable Hoskins at 2:04 a.m. resulted in a reading of 180mg/100ml. The second sampleregistered as 170mg/100ml.

Prior to the samples being taken, Constable Hoskins observed a strong odour of alcohol emanating from therespondent’s breath, very red face, flushed in colour, very red, bloodshot eyes, an odd weave in his balance and an odd slur. During thevideo of the intoxilyser test, the respondent admitted to driving, missing his driveway and to receiving assistance from Sheer andChampaigne.

He also admitted to consuming five beers throughout the night. [13] Given the fact that the respondent had consumed alcohol after the time of the alleged offences, the Crown called Ben Joseph,a forensic toxicologist, to give expert evidence. Based on the respondent’s gender, height, weight, age and two beers being consumedbetween the time of the incident and the first breath test, Ben Joseph testified that the respondent’s blood alcohol concentration between11:45 p.m. on June 1, and 12:05 a.m. on June 2, 2007, would have been between 130 and 170mg of alcohol per 100ml of blood.

He wenton to testify that “... by 80mg, which is the legal limit, all individuals regardless of tolerance of their levels towards alcohol are impairedin one or more faculties required in the operation of a motor vehicle.” The Issues [14] The issues are: 1) Did the learned trial judge err in law by failing to consider relevant admissible evidence on the reasonable and probable grounds forthe breath demand? 2) Did the learned trial judge err in failing to conduct any analysis under s. 24(2) of the Canadian Charter of Rights and Freedoms? 3) Did the learned trial judge err in law by failing to consider relevant admissible evidence on the issue of impairment? 4) Did the learned trial judge err in law by failing to apply the correct test to assess impairment?

The Law Reasonable and Probable Grounds [15] This issue was recently canvassed in a thorough fashion by the Court of Appeal in R. v. Bush (2010), 2010 ONCA 554, 101 O.R. (3d) 641 (C.A.). Speaking for the court, Durno J. stated at p. 652: Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol in his orher body, the standard for an approved screening device (roadside) demand pursuant to s. 254(2) of the Criminal Code.

At the other endof the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator’s ability to operate a motor vehiclewas impaired by the consumption of alcohol or that the driver’s blood alcohol concentration was over the legal limit. Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds.

Section 254(3) of the Criminal Codeauthorizes peace officers to demand Intoxilyzer breath samples provided the officer has “reasonable grounds to believe that a person iscommitting or at any time within the preceding three hours has committed” the offence of impaired operation or driving ‘over 80.’”(emphasis added). Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima face case: seeCensoni, at para. 31; and R. v. Shepherd [2009] 2 S.C.R. 527, [2009] S.C.J. No. 35, 2009 SCC 35, at para. 23.

Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer tohave an honest belief the suspect committed the offence: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, [1994] S.C.J.No. 87, at para. 51. The officer’s belief must be supported by objective facts: R. v. Berlinski, (ON CA), [2001] O.J.No. 377, 9 M.V.R. (4th) 67 (C.A.), at para. 3. The objective component is satisfied when a reasonable person placed in the position ofthe officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12, S.C.R. at p. 250. [16] The court goes on to say at p. 654:

In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, [2010] O.J. No.2490 2010 ONCA 435, at para. 17. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as tothreaten individual freedom: Censoni at para. 43. There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds toarrest: R. v. Deighan, [1999] O.J. No. 2413, 45 M.V.R. (3d) 90 (C.A.), at para. 1.

Use of Hearsay Evidence [17] In determining whether reasonable and probable grounds exist, the officer is entitled to rely on hearsay. In R. v. Bush, thecourt stated at p. 658: A trained police office is entitled to draw inferences and make deductions drawing on experience. Here, the investigating officer had 18years’ experience. The trial judge was entitled to take into consideration that experience and training in assessing whether he objectivelyhad reasonable and probable grounds: Censoni at paras. 36 and 37.

In addition, in determining whether reasonable and probable groundsexist, the officer is entitled to rely on hearsay: R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 119, at pp.1167 S.C.R. and 1168 S.C.R., Costello; R. v. Lewis (1998), (ON CA), 38 O.R. (3d) 540, [1998] O.J. No. 376 (C.A.) atparas. 15 and 16; Censoni, at para. 57. Section 24(2) Analysis [18] Since the trial decision was rendered, the Supreme Court of Canada has clarified the approach to be taken when faced with anapplication for exclusion under s. 24(2) of the Canadian Charter of Rights and Freedoms. [19] In R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, the Supreme Court of Canada stated that a court must assess andbalance the effect of admitting the evidence on society’s confidence in the justice system having regard to: 1) The seriousness of the Charter-infringing conduct; 2) The impact of the breach on the Charter-protected interests of the respondent; and 3) Society’s interest in the adjudication of a case on its merits. Test for Impairment [20] The test for impairment has been concisely stated in R. v.

Bush at pp. 654-655: Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), (ON CA), 12 O.R. (3d) 90, [1993] O.J. No. 18 (C.A.), affd (1994), (SCC), 18 O.R. (3d) 800, [1994]2 S.C.R. 478, [1994] S.C.J. No. 51. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motorfunction whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road:Censoni, at para. 47.

The test is whether, objectively, there were reasonable and probable grounds to believe the suspect’s ability to drive was evenslightly impaired by the consumption of alcohol: see R. v. Stellato supra; Moreno-Baches and Wang, at para. 17. Analysis Reasonable and Probable Grounds [21] Under s. 254(3) of the Criminal Code of Canada, a peace officer must have “reasonable grounds to believe that a person iscommitting, or at any time within the preceding three hours has committed, an offence under s. 253 as a result of the consumption ofalcohol” before making a demand for a breath sample.

When addressing this issue in his reasons, the trial judge said: I am being asked to draw inferences and make assumptions as to when the care and control happened, whether it was communicatedfrom these female witnesses or by anybody to the investigating officer or to the breath technician because it does not appear in theevidence, and it seems to me that it is a primary fundamental condition that has to be there before a proper demand can be made.

It is not there in my analysis of the evidence and I have spent considerable amount of time between our court dates and on variousrecesses during our court dates going over my notes and looking for these things in the evidence and have not found them. [22] In fact, there is evidence that clearly demonstrates that the respondent had been driving within the previous three hours. When asked about his initial contact with the female witnesses, Constable Hoskins stated: Q. Did you have any conversation with any of the witnesses as part of your investigation leading up to the breath demand? A. Yes. Q. O.k.

Can you tell us about that, please. A. I had a conversation with one of the females. Q. O.k.

A. It was very brief and I only asked to – if they could tell me how long it was or if the female could tell me how long it was betweentheir involvement with the vehicle in the ditch and the time the police were called. Q. And what was ... A. It was 15 minutes in duration, from when them coming across the vehicle and calling police. Q. Calling police or your arrival? A. No, calling us. [23] In Constables Kates’ evidence, he stated: Q. What time did you receive that call and what was it with respect to? A.

On the date in question, the 2nd of June, 2007, it was at approximately 00:25 we received a call from Communications requesting thatwe attend in the area of the Knights of Columbus, just located at 2046 Regional Road 15, in Chelmsford. We had received informationfrom them that there was a grey Volkswagen Jetta which had been stuck in the ditch there and that there were witnesses with the driveron scene there.

Communications also advised me that the – these witnesses believed that the driver was possibly intoxicated by alcoholand they were fearful that he would try to drive away after they assisted him in removing the vehicle from the ditch. [24] The decision of the trial judge suggests that when being asked to draw inferences and make assumptions about the fact thatthe respondent had been driving within the previous three hours, he was not prepared to do so. It is not necessary for the police officersto use the “magic words” of the section.

Trial judges are permitted to draw inferences and make assumptions from circumstantialevidence that was available to the police officer. In R. v. Clarke (2000), 1 M.V.R. (4th) 298, Durno J. stated at pp. 302-303: : There are authorities which support the Crown’s contention the officer does not have to say the “magic words.” In some cases this hasrelated to whether the officer had to state the reasonable and probable grounds for a breathalyser demand. R. v. Fraelic (1977), (NS SC), 36 C.C.C. (2d) 473 (N.S. Co. Ct.), R. v. Blanchette (1978), 41 C.C.C. (2d) 205 (Alta. Dist. Ct.).

In others, it wasgrounds for an arrest. R. v. Hall (1995), (ON CA), 22 O.R. (3d) 289 (Ont. C.A.), R. v. Fraser (February 8, 1996),MacDonnell Prov. J. (Ont. Prov. Div.).

In all of the cases it was determined the court could infer from circumstantial evidence theofficer had the requisite belief without having said the “magic words.” [25] There was ample evidence for the trial judge to draw inferences from all of the evidence to establish that the respondent hadbeen driving within the previous three hours and that there was a subjective and objective basis for the arresting officer to believe thatthere were reasonable and probable grounds to make the breath demand.

This evidence includes Sheer and Champaigne’s observationsof the respondent when they came across him in the driver’s seat in the ditch and their testimony that the respondent drove the vehiclefrom the ditch while they pushed. Information about the respondent’s driving was also provided to Officer Hoskins when he met withthe two female witnesses at the Northstar Convenience Store.

When the police arrived at his residence, the respondent was identified byone of the male witnesses as the “... male driving the Volkswagen Jetta, the vehicle in the ditch.” The lay witnesses observed signs ofimpairment after the respondent exited the vehicle once it was out of the ditch. The police officers observed classic signs of impairmentwhen they first encountered the respondent in his driveway. Indeed, it would appear that there was direct evidence on these issues.

Thefailure of the trial judge to draw such inferences or to accept the direct evidence on these issues constitutes reversible error. [26] On behalf of the respondent, it was suggested that because he was arrested within two minutes of initial contact with thepolice, there was insufficient time for the officer to form the belief that there were reasonable and probable grounds for the breathdemand and that the respondent’s ability to operate a motor vehicle was impaired.

There is no minimum time period, or mandatoryquestioning required, before it is possible to come to the belief that reasonable and probable grounds exist. In some cases, it may bepossible to form the requisite belief in as little as a minute or two: see R. v. Bush, and R. v. Smith (1996) (ON CA), 28O.R. (3d) 75 (C.A.). Hearsay Evidence [27] When Constable Kates attempted to present evidence about his initial contact with Allison Adams and Katrina Hickiu, hetestified that he had a conversation with Katrina Hickiu. The Crown then asked: Q.

Are there things that Katrina Hickiu told you that you relied upon for reasonable and probable grounds for making a breath demand? [28] The court interrupted this line of questioning: The Court: Can he tell us what he did? That’s all I ask, what did you do? You spoke to this lady, she told you something, and you didsomething. What did you do? (pp. 112-113) [29] In determining whether or not there are reasonable grounds to make the breath demand, it is clear that the officer can take intoaccount hearsay information which is provided to him during the course of his investigation.

The officer is permitted to testify as to thecontents of the conversation that caused him to make the demand. In this particular case, he was not permitted to do so. As set out in R.v. Bush and the cases referred to therein, a police officer is entitled to rely on hearsay in determining if there are reasonable and probablegrounds to make the breath demand. [30] The trial judge failed to permit the hearsay evidence for the limited purpose of establishing that the officer had reasonable andprobable grounds for making the breath demand. Section 24(2) Analysis

[31] During the course of submissions, counsel for the Crown submitted that even if there had been a breach of the respondent’s s.8 Charter Rights, in that the police officer did not have the requisite reasonable and probable grounds to make the breath demand, theevidence should not be excluded. In his reasons, the trial judge stated at p. 4: Mr. Kim submits to me that even so, even if there has been a breach, the evidence is such that it not to be [sic] excluded. I do not acceptthat submission.

It seems to me clearly the breath tests must be excluded from the evidence. [32] In failing to give any consideration to a s. 24(2) analysis, the trial judge committed reversible error. Evidence of Impairment [33] A video was taken at the time the breath test was administered. It is 39 minutes in length. This is evidence that is commonlyused in criminal trials and provides a reliable source of evidence for the trial judge.

It is a form of real evidence which is to be taken intoaccount by the trial judge along with all of the other evidence. [34] The breath test video in question shows the respondent being uncooperative, upset, emotional, and, on several occasions,laughing. This is evidence that can assist the trier of fact in determining the issue of impairment. [35] When addressing the issue of the use that may be made of the breath test video in his reasons, the trial judge states at p. 5: “...I am resisting the invitation to make myself a witness.

That is not what videos are for.” [36] To the extent that the trial judge failed to take into account the evidence offered by the breath test video, the trial judgecommitted reversible error. Test for Impairment [37] The test for impairment has been established in R. v. Stellato, (1993) (ON CA), 12 O.R. (3d) 90 (C.A.),aff’d (SCC), [1994] 2 S.C.R. 478. Speaking for the court, Labrosse J.A. said: In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can beregistered.

Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability tooperate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted.

If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. [Emphasis added.] [38] On this issue, the trial judge stated in his reasons at p. 5: But it is clear there was some consumption and it [is] clear, that from the evidence, and I have no doubt about this, that Mr.

Vollett’sability to operate a motor vehicle at the material time and place when he had the care and control of the vehicle when it was being movedfrom the ditch may well have been impaired, but the evidence is not such that I can draw a finding of fact to support that beyond areasonable doubt. [39] The record provided ample evidence of impairment. Firstly, the evidence given by Sheer and Champaigne was such that evenas lay persons, the observations that they made of the respondent were such that they felt he was impaired and should not be operating avehicle.

In fact, in his evidence, Sheer stated that when he felt that the respondent was hiding so that he could get back into his car anddrive home after it had been pushed from the ditch, he felt compelled to place a 911 call to report the matter. [40] Secondly, the video showing the accused’s demeanour and his admissions about driving and consuming five beers wasimportant evidence for the trial judge to consider. [41] Lastly, Constables Kates and Hoskins both noted many of the indicia of impairment at the time of initial contact with therespondent and during the subsequent course of the investigation. [42] There are a wide array of indicia that can indicate impairment.

There is no checklist that an investigating officer must use tobe satisfied that all of the indicia are present. It is enough that the officer be satisfied only that there are sufficient indicia of impairmentto warrant a breath demand and arrest. On behalf of the respondent, a great deal of emphasis was placed on the fact that some of theusual indicia of impairment were not present in this case.

The absence of some indicia that are typically found when conducting animpaired driving investigation does not necessarily undermine a finding of reasonable and probable grounds based on the observedindicia and available information: see R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.), at para. 2; R. v. Wang (2010), 2010 ONCA435 , 95 M.V.R. (5th) 80 (Ont. C.A.), at para. 21. The trial judge’s apparent refusal to “draw a finding of fact” and hisconflicting comments on the issue of impairment leave me in doubt that he applied the correct test as to whether or not the respondentwas impaired.

Conclusion [43] For the foregoing reasons, I grant the appeal and order that there be a new trial on both charges before a new judge. Mr. Justice R. Dan Cornell Released: December 17, 2010