) ) HER MAJESTY THE QUEEN Appellant – v. –, 2017 ONSC 883

CITATION : R. v. Kucerak, 2017 ONSC 883 COURT FILE NO.: 1255/13 DATE: 20170206 ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT BETWEEN: ) ) HER MAJESTY THE QUEEN Appellant – and – JAN KUCERAK Respondent ) ) ) ) ) ) ) ) ) A. Khoorshed, for the Appellant S. von Achten, for the Respondent ) ) HEARD: December 23, 2016 [On appeal from the judgment of Baldwin J. dated January 22, 2016] MILLER J. [ 1 ] Jan Kucerak was found guilty January 22, 2016 of Impaired Operation of a Motor Vehicle and of Operation of a Motor Vehicle with Excess Alcohol. He was convicted on the Impaired Charge; the charge of Excess Alcohol was stayed. [ 2 ] Mr. Kucerak appeals his finding of guilt on the basis that the trial judge erred in putting her own

interpretation on the evidence of the arresting officer that at the time of the arrest he had a suspicion the Appellant was impaired by alcohol. Mr. Kucerak further submits that the trial judge erred in finding there were objective grounds upon which a reasonable opinion that the Appellant’s ability to operate a motor vehicle was impaired by alcohol could have been formed. [ 3 ] The Crown takes the position that the trial judge did not err in her finding that there was both a subjective and objective basis for the arresting officer’s opinion that Mr.

Kucerak’s ability to operate a motor vehicle was impaired by alcohol and that there was no Charter breach. In the alternative that Crown submits that the breath samples taken should nonetheless be admitted into evidence. Facts [ 4 ] Mr. Kucerak was driving a motor vehicle at approximately 8:30 p.m. April 23, 2013 on Fairview Street at the intersection with Brant Street in Burlington, Ontario. He was observed by another driver to drift into her lane in front of her causing her to swerve to avoid a collision.

She then observed him to drift back into the left lane and then directly into the median “with the lights and the sign”. The vehicle driven by Mr. Kucerak went “straight up the pole” then flipped two or three times before landing upright. She observed Mr. Kucerak exit the vehicle in matter of seconds. She observed blood on his head and described him as “disoriented” and “staggering a little bit”. [ 5 ] Police were called and Officer Garner arrived on scene at 8:40 p.m. He observed Mr. Kucerak to have a cut on his head and to appear disoriented. Mr. Kucerak told the officer he was not sure what had happened.

An ambulance arrived and the officer escorted Mr. Kucerak to the ambulance noting that he stumbled once and the officer had to help him get to the back of the ambulance. [ 6 ] The officer testified that at that time he attributed the fact that Mr. Kucerak was unstable on his feet to the fact he had just rolled his car. Other than the fact that the collision appeared to be unexplained the officer conceded that he had made no other observations at that point that would have led him to conclude that Mr. Kucerak was impaired. [ 7 ] The officer followed Mr.

Kucerak to the hospital and spoke with him in the hallway of the hospital around 9:20 p.m. Mr. Kucerak was at that time lying on a stretcher and wearing a neck brace. At this time the officer asked Mr. Kucerak again what had happened and Mr. Kucerak said he had no recollection.

[8] In speaking with Mr. Kucerak at this time, indoors, the officer detected an odour of alcohol emanating from Mr. Kucerak’sbreath. He also noted that Mr. Kucerak’s eyes were glossy and red and that there was a purplish ring around the inside of Mr. Kucerak’slips. [9] The officer asked Mr. Kucerak if he had been drinking. Mr. Kucerak replied that he had met his lawyer at a pub in Oakvilleto discuss family matters and that he had had two glasses of wine and a lot to eat as well. [10] The officer testified that at 9:36 p.m. he formed the opinion that Mr.

Kucerak’s ability to drive a motor vehicle was impairedby alcohol at the time of the collision. In forming that opinion he relied on the unexplained single motor vehicle collision; the odour ofalcohol emanating from Mr. Kucerak’s mouth; Mr. Kucerak’s bloodshot, red, glossy eyes; the unsteadiness on his feet and the admissionof consumption of alcohol. He arrested Mr. Kucerak and made a breath demand upon him. [11] Mr. Kucerak subsequently provided samples of his breath into an approved device.

The results of the tests showed Mr.Kucerak’s blood alcohol level to be in excess of the legal limit. [12] In cross-examination defence counsel suggested to the officer that at the time or just prior to the arrest he had a “suspicion”that Mr. Kucerak was impaired. To this question the officer answered “Yes”. The officer had not previously testified that at the time hearrested Mr. Kucerak he had a “suspicion”. [13] In re-examination the officer was asked if he only had a suspicion that Mr. Kucerak was impaired before arresting him.

Theofficer reiterated his grounds and testified that at first he had a suspicion but he then formed the opinion that Mr. Kucerak’s ability todrive a motor vehicle was impaired by alcohol. Analysis [14] The Appellant raises two grounds of appeal: that the trial judge erred in putting her own

interpretation on the evidence of thearresting officer that at the time of the arrest he had a suspicion the Appellant was impaired by alcohol, and that the trial judge erred infinding there were objective grounds upon which a reasonable opinion that the Appellant’s ability to operate a motor vehicle wasimpaired by alcohol could have been formed. [15] At the commencement of argument on the appeal I provided to counsel the Ontario Court of Appeal decision in R. v. Wu[2015] O.J.

No. 5106 for their consideration. [16] In that decision at paragraphs 45-52 the court set out the standard of review and the legal standard for reasonable grounds forarrest as follows: Standard of Review 45 In R. v.

Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20, the Supreme Court held that whether the facts constitutereasonable and probable grounds for arrest is a question of law: While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of thetrial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question oflaw. [Emphasis added.] While the trial judge's factual findings are entitled to deference, his or her ultimate ruling is subject to review for correctness: Shepherd,at para. 20. 46 In R. v.

MacKenzie, 2013 SCC 50, [2013] S.C.R. 250, the accused, charged with possession of a controlled drug for the purpose oftrafficking, took issue with a police sniffer-dog search of his car. He argued that the police lacked reasonable suspicion that he wasinvolved in a drug-related offence when they had the dog sniff his vehicle and the sniff therefore amounted to an unconstitutional search.The accused sought to have the drugs discovered in the car excluded. 47 Moldaver J. found the logic in Shepherd equally applicable in circumstances where the question was whether police had areasonable suspicion.

He dealt with the role of an appellate court in reviewing the trial judge's conclusion on the existence of areasonable suspicion. At para. 54, he held that if the question on appeal is whether the facts found by the trial judge amount to areasonable suspicion (or reasonable and probable grounds), "an appellate court must always engage in a de novo analysis and therebysubstitute its own view of the correct answer for a trial judge's legal conclusion.

Deference would apply only if one of the parties soughtto attack a finding of fact on appeal" (emphasis in original). 48 Here, the Crown does not challenge any of the findings of fact the trial judge made in her analysis of the grounds for Wu's arrest.The Crown's argument, to which I now turn, is that the trial judge, in her analysis of whether the police had reasonable and probablegrounds to arrest Wu, committed an error in law. Accordingly, correctness is the standard of review.

The Test for Reasonable and Probable Grounds for Arrest 49 To establish reasonable and probable grounds for arrest, a police officer must subjectively believe that a person has committed or isabout to commit an indictable offence, and the police officer must be able to justify that belief on an objective basis, meaning that areasonable person placed in the position of the police must be able to conclude that there were reasonable and probable grounds. Thepolice need not demonstrate anything more than reasonable and probable grounds.

Specifically, the police need not establish a primafacie case for conviction: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, at pp. 250-51.

50 In MacKenzie, released shortly after the trial judge's ruling in this case, the majority of the Supreme Court emphasized theimportance of examining the belief that grounds for arrest existed through the lens of a reasonable person placed in the position of the police officer.1 At paras. 62-63, in his trademark common-sense language, Moldaver J. explained why considering the evidence fromthis vantage point is important: Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has beenmet. Police officers are trained to detect criminal activity.

That is their job. They do it every day. And because of that, "a fact orconsideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police". Sights,sounds, movement, body language, patterns of behaviour, and the like are part of an officer's stock in trade and courts should considerthis when assessing whether their evidence, in any given case, passes the reasonable suspicion threshold.

Thus, in assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonablenessshould be conducted through the lens of a reasonable person "standing in the shoes of the police officer." [Citations omitted.] 51 According to Moldaver J., this particular perspective is not just important -- it is an essential part of the trial judge's considerationof whether the officer's conclusion that there were reasonable and probable grounds to arrest was objectively reasonable.

In fact, at para.60, Moldaver J. said that as a matter of law, a trial judge must appreciate the significance of police experience and training whenevaluating the probative value of evidence. 52 While, as noted, the guidance provided by Moldaver J. was in the context of reasonable suspicion, the obligation to consider theevidence the police relied upon from this particular vantage point applies equally to the objective reasonableness analysis for reasonableand probable grounds to arrest: Storrey, at pp. 250-51. [17] In argument counsel for Mr. Kucerak attempted to argue that Mr.

Kucerak had been “psychologically and actually detained”in the period of time during which the arresting officer’s suspicion became an opinion that Mr. Kucerak’s ability to drive a motor vehiclehad been impaired at the time of the collision. Counsel conceded that this was a new ground of appeal and had not been argued at trial.Counsel was not permitted to raise this new ground of appeal at this stage in the proceedings. [18] Counsel for Mr. Kucerak referred me to the case of R. v.

Rehill 2015 ONSC 6025 , [2015] OJ No 5068 (S.C.J.) atparagraphs 46-47 submitting that the trial judge erred in failing to conduct a s. 24 (2) analysis. The trial judge found no Charter breachand there was therefore no need for her to conduct a s. 24 (2) analysis. Counsel for Mr. Kucerak conceded that as noted in Redhill theauthorities weigh in favour of admission of breath samples even if there is a Charter breach.

Redhill stands for the proposition thatnotwithstanding this, if a Charter breach is found, there remains an obligation on a trial judge to undertake the required analysis beforeconcluding whether or not to exclude evidence of breath samples. [19] Counsel for Mr. Kucerak also referred me to the decision in R. v. Acquah 2016 ONSC 597 , [2016] O.J.

No.388(S.C.J.) at paragraphs 6-8 in respect of the standard of appellate review and the legal standard for reasonable grounds to make abreath demand: The Standard of Appellate Review 6 Whether there are the required reasonable grounds in any particular case is largely a fact-driven exercise dependent on all thecircumstances of the case. In drawing any conclusion in relation to the issue, the totality of the circumstances must be taken into account.Therefore, on any appeal challenging the conclusion reached by the trial judge, the appellate court must approach a trial judge's findingsof fact with deference.

That said, where appellate courts are called on to review a trial judge's conclusion as to whether a police officerobjectively had the necessary reasonable grounds to effect an arrest or make a breath demand, that decision is reviewable on a standardof correctness, as it is effectively a conclusion on a question of law. See R. v. Wang, 2010 ONCA 435, 256 C.C.C. (3d) 225, at para. 18;R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20; R. v. Rhyason, 2007 SCC 39, [2007] 3 S.C.R. 108; R. v. Bush, 2010ONCA 554, 101 O.R. (3d) 641, at paras. 48, 54; R. v. Suntharalingam, 2012 ONSC 6207, [2012] O.J.

No. 5145, at para. 19; R. v.McDowell, 2012 ONSC 7028, 40 M.V.R. (6th) 317, at para. 27; R. v. Pavlovsky, 2013 ONSC 6800, 58 M.V.R. (6th) 75, at para. 5. 2. Reasonable Grounds -- The Legal Standard 7 In order to establish the reasonable grounds necessary to justify the arrest of an accused or a demand for breath samples, a policeofficer must have subjectively had an "honest belief" that was objectively based on reasonable grounds. See R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, at pp. 249-251; R. v. Hall (1995), (ON CA), 22 O.R. (3d) 289 (C.A.), at pp. 298-299;R. v.

Golub (1997), (ON CA), 117 C.C.C. (3d) 193 (Ont.C.A.), at para. 20, leave denied, [1997] S.C.C.A. No. 571;R. v. Muller, 2014 ONCA 780, 122 O.R. (3d) 721, at para. 36; R. v. Amare, 2014 ONSC 4119, [2014] O.J. No. 5225, at para. 83; R. v.Grant and Campbell, 2015 ONSC 1646, [2015] O.J. No. 1229, at paras. 90, 92.

Accordingly, the issue in the instant case is whether, onthe record before the court, a reasonable person in the circumstances of the investigating police officers could conclude that there werereasonable grounds to believe that the appellant's ability to operate a motor vehicle was impaired by alcohol on the night in question. SeeR. v. Storrey, at p. 250; R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 51; R. v. Shepherd, at para. 17; R. v.Berlinski (2001), (ON CA), 9 M.V.R. (4th) 67, [2001] O.J. No. 377 (C.A.), at para. 3; R. v. Censoni (2001), 22M.V.R. (4th) 178, [2001] O.J.

No. 5189 (S.C.J.), at paras. 29-51. 8 In R. v. Bush, Durno J., delivering the judgment of the Court of Appeal for Ontario, summarized the proper approach in assessingwhether the necessary reasonable grounds exist in this type of "drinking and driving" context. In R. v. Suntharalingam, at para. 21, Isought to non-exhaustively summarize some critical conclusions articulated by Durno J. in the following six points:

(1) The standard of reasonable and probable grounds lies somewhere between "reasonable suspicion" and "proof beyond a reasonable doubt." Accordingly, the requirement of reasonable and probable grounds does not require proof beyond a reasonable doubt or even the establishment of a prima facie case. See R. v. Bush , at para. 36-37 .

(2) In the context of a demand for breath samples, the requirement of the reasonable and probable grounds standard is "not an onerous test." It must not be "inflated to the context of testing trial evidence," but neither must it be "so diluted as to threaten individual freedom." See R. v. Bush , at para. 46 .

(3) There is no necessity that the accused be in a state of "extreme intoxication" before a police officer will have reasonable and probable grounds to effect an arrest. Indeed, impairment may be established where the Crown proves "any degree of impairment from slight to great." Slight impairment to drive a motor vehicle relates to a reduced ability to perform a complex motor function, such as impacting one's perception or field of vision, reaction or response time, judgment, or regard for the rules of the road.

Accordingly, to justify an arrest or breath demand, the police officer need only have objectively based reasonable and probable grounds to believe that the accused's ability to drive was "slightly impaired" by alcohol. See R. v. Bush , at paras. 47-48 .

(4) In assessing whether or not there are reasonable and probable grounds in any given case, trial judges are often improperly asked to engage in a "dissection" of the officer's grounds by looking at each ground in isolation, and without appreciating that the opinions of the officer were developed at the scene "without the luxury of judicial reflection." Yet it is "neither necessary nor desirable" to conduct an impaired driving trial as if it were a "threshold exercise in determining whether the officer's belief was reasonable." See R. v. Bush , at para. 55 .

(5) An assessment of whether the police officer objectively possessed reasonable and probable grounds does not involve the equivalent of an "impaired driver scorecard," with a list of all the "usual indicia of impairment" and counsel conducting an inventory as to which indicia are present and which are absent as part of the essential assessment. Indeed, there is "no mathematical formula" whereby the police officer must have a certain minimum number of indicia of impairment before it can be said, as a matter of law, that the necessary reasonable and probable grounds are objectively present.

The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding that there are reasonable and probable grounds to believe the accused is impaired based upon all of the circumstances of the case. See R. v. Bush , at para. 56 .

(6) A trained and seasoned police officer is entitled to draw inferences and make deductions drawing on his or her years of experience. A trial judge is entitled to take into consideration the experience and training of the police officer in assessing whether or not he or she objectively possessed the necessary reasonable and probable grounds. See R. v. Bush , at para. 61 . [ 20 ] I agree with this statement of the law. [ 21 ] In her Reasons for Judgment the trial judge considered carefully the officer’s testimony about having a “suspicion” that Mr.

Kucerak’s ability to operate a motor vehicle was impaired by alcohol. She concluded that the officer had a subjective belief in impairment and that it was objectively sound. She found that the officer had reasonable and probable grounds before he arrested Mr. Kucerak and demanded samples of his breath. [ 22 ] In her Reasons for Judgment the trial judge listed the factors she considered in coming to that conclusion:

(1) This was not a minor accident. This was a severe single motor vehicle accident for which there is no explanation. The roads were dry, the traffic was light. The Applicant drifted out of his lane in front of another car which almost caused that driver to smash into him. Then the Applicant drifted into another lane, drove straight up a pole, crashed down onto oncoming traffic roof down and flipped the vehicle two or three times. After this spectacular accident, the Applicant advised the Officer at the scene that he had no idea what happened. At the hospital the Applicant advised the Officer that he could not remember what happened;

(2) The Applicant was extremely disoriented at the scene. He could not tell the Officer at the scene where he lived or really give him any information at all. On its own, and if it were combined with other weak factors, this indicia of impairment would not be sufficient, but it does not stand on its own and the other factors are strong;

(3) The Applicant stumbled when walking to the ambulance. The evidence was that the Officer had to physically assist the Applicant to walk to the ambulance which arrived 20 minutes after the collision. Again, on its own and if it were combined with other weak factors, this indicia of impairment would not be sufficient, but it does not stand on its own and the other factors are strong;

(4) The odour of alcohol on his breath was faint at the scene in the open night air – it was strong at the hospital;

(5) The Applicant admitted that he had consumed alcohol, specifically wine, at a bar in Oakville with his lawyer Douglas LaFramboise before the accident;

(6) The red ring around his mouth was consistent with the consumption of a lot of red wine;

(7) The Applicant had red and glossy eyes. [ 23 ] The trial judge erred in finding that the red ring around the mouth of Mr. Kucerak was consistent with consumption of “a lot” of red wine. That was not the officer’s evidence; only that it was consistent with Mr. Kucerak’s admission that he had consumed red wine [ 24 ] Despite this error, I find that there was sufficient basis and the trial judge did not err in concluding both that the officer had a subjective belief in impairment and that it was objectively sound.

[ 25 ] The appeal is dismissed. MILLER J. Released: February 6, 2017 R. v. Kucerak, 2017 ONSC 883 COURT FILE NO.: 1255/13 DATE: 20170206 ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT HER MAJESTY THE QUEEN – and – JAN KUCERAK REASONS FOR JUDGMENT MILLER J. Released: February 6, 2017