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Breathalyzer

DEMAND FOR BREATH (BLOOD) SAMPLE

Ample grounds upon which to make intoxilyzer breath demand

Accused appealed her convictions for impaired driving and refusing to give breath sample. Citizen testified that accused side-swiped his car. After speaking to him and providing half of her information that was scribbled on piece of paper, accused left scene before police arrived. Officer happened to drive by accident scene, saw accused leave collision and followed her to find out what had happened. Despite officer putting on his siren and emergency flashing lights, accused did not pull over for roughly 500 metres. Officer noted indicia of impairment and arrested accused. Accused was driven to station where she was given numerous opportunities to provide suitable breath sample into intoxilyzer, but failed to do so. Accused contended that at its highest, officer had reasonable suspicion accused had alcohol in her body which would justify demand for breath sample into approved screening device; he did not have reasonable and probable grounds to make demand. Trial judge found following factors provided adequate basis for arresting officer to have reasonable and probable grounds to conclude accused’s ability to operate motor vehicle was impaired by consumption of alcohol: time of day (approximately 1:00 a.m.), accused’s abrupt departure from collision scene, her obnoxious and aggressive demeanour, her purple lips, her red and sleepy eyes, smell of alcohol on her breath and her attempt to avoid breathing directly at officer. Appeal dismissed. Fact officer did not say “magic words” of accused’s ability to operate motor vehicle being impaired by consumption of alcohol was not fatal. It was implicit in officer’s evidence that he had requisite reasonable and probable grounds to make intoxilyzer breath demand and arrest accused. There was ample evidence upon which trial judge could reach conclusion he did. While some of those indicia might be explained by factors unrelated to consumption of alcohol, combination of indicators provided sound basis upon which officer reasonably concluded there were reasonable and probable grounds to believe that her ability to operate motor vehicle was impaired by consumption of alcohol. In addition, while not mentioned by trial judge, objectively officer could also have considered accused’s slurred speech, her refusal to blow into officer’s face and failure to stop for 500 metres after officer activated his siren and emergency lights. When considered together, there were ample grounds upon which to make intoxilyzer breath demand.
R. v. Grant (Mar. 11, 2014, Ont. S.C.J., Durno J., File No. 1848/12) Decision at 100 W.C.B. (2d) 51 was affirmed.  112 W.C.B. (2d) 540.

Appeal

GROUNDS

No evidence that accident was caused by mechanical failure

Appeal by accused from his convictions for impaired and dangerous driving. Accused drove large 18-wheel tractor trailer in residential neighborhood above speed limit and, after he went through red light and made turn, truck tipped over on its side. Police officer, who followed truck, saw accused emerge from it and he staggered on his feet and smelled strongly of alcohol. Other officers who arrived made similar observations. Accused did not challenge trial judge’s findings regarding impaired and dangerous driving. Only alleged error was correctness of judge’s ruling that accused’s application under s. 7 of Canadian Charter of Rights and Freedoms should be dismissed. Charter issue concerned failure of police to preserve accused’s vehicle. Truck should have been preserved so that it could be tested to determine whether defective brakes or steering were contributing causes of accident. Judge did not rely on accident itself, or make any findings as to cause of accident, as indicia of impaired or dangerous driving. After police completed their investigation they handed custody of truck over to towing company. Truck was scrapped because owner of truck and insurance company did not want to pay storage fees. Appeal dismissed. Section 7 application was based on alleged breaches of right to disclosure and right to fair trial. Judge’s conclusion, that there was no unacceptable negligence and, therefore, no breach of s. 7 right to disclosure was based on six considerations. These considerations were relevant to fault analysis that had to be conducted on s. 7 Charter application that concerned unacceptable negligence by state actors. There was no evidence that mechanical failure caused accident and, even if there was some failure, it would not have dismissed alcohol as contributing cause of accident. Accused’s employer, who owned truck, had been given timely notice that it would be sold as scrap, and accused and his counsel had notice, before truck was sold, where it was located. Judge made reasonable findings of fact and they supported his conclusion that there was no unacceptable negligence by police. Accused’s right to fair trial was not violated since there was no evidence that accident was caused by mechanical failure, and stay of proceedings, which was only remedy sought by accused, was not appropriate in this case. Judge, therefore, did not err in dismissing Charter application.
R. v. Hassan (Mar. 3, 2014, Ont. S.C.J., M.A. Code J., File No. CR-12-70000132-00AP) 112 W.C.B. (2d) 534.

Charter of Rights

ARBITRARY DETENTION OR IMPRISONMENT

Suspicions about bail breaches did not convert investigation into ruse

Property manager of housing complex had reported general concerns about drug dealing and trespassing on premises to police. Four police officers attended complex. Officers claimed accused walked quickly toward house carrying partially-full liquor bottle, then rapidly knocked on door. Officers alleged that accused smelled of liquor, had bloodshot eyes and appeared very nervous. Officers asked accused if he lived there and if he had been drinking. Physical altercation ensued when officer asked accused about backpack he was carrying. Officers admitted to punching and kneeing accused to get him to stop resisting. Once accused was handcuffed, officer searched backpack and found semi-automatic handgun. Accused was charged with 11 counts, including four counts of assaulting police and five weapons offences. Accused applied for exclusion of evidence based on, inter alia, breach of s. 9 of Charter. Application dismissed. Predominant purpose for accused’s detention was Provincial Offences Act (Ont.) investigation into liquor and trespassing issues and not mere ruse or pretext for criminal investigation. Objective basis existed for investigation. Officers’ suspicions about possible bail breaches did not convert investigation into ruse. Grounds relied on by officers to detain accused were sufficient. Accused was not generally credible or reliable witness. Circumstances provided reasonable suspicion to believe accused may possibly have committed provincial offence. Officers had legitimate grounds to briefly detain accused and determine whether he was resident or trespasser who had been drinking in courtyard of complex. Detention not unduly long. Evidence established that accused pushed one officer in chest and kicked another in groin, then tried to close door on officers and continued to resist arrest. Officers had grounds to enter dwelling and arrest accused. Force used during arrest caused no significant injuries and was necessary and reasonable.
R. v. Darteh (Feb. 7, 2014, Ont. S.C.J., M.A. Code J., File No. 13-50000278-0000) 112 W.C.B. (2d) 325.

Appeal

GROUNDS

Reasons did not articulate any connection between evidence and law and verdicts

Accused appealed his conviction for impaired driving. Impugned decision also acquitted accused on charge of driving over .08. Officers saw truck on shoulder of highway, and saw that male was standing outside vehicle urinating. Officers stopped to make sure that everything was okay. As officers approached truck, they noticed that its headlights were still on. Female officer assumed from this that keys were still in ignition, but she could not recall ever actually seeing keys in ignition. Keys were not subsequently found on accused’s person. Officers testified accused exhibited indicia of impairment and there was strong odour of alcohol coming from him. Accused struggled with finding documentation and was not registered owner of truck. Accused, who claimed not to have been drinking, failed ASD test and was taken to detachment. Accused gave BAC readings of 138 and 121. Appeal allowed; new trial ordered. In his reasons for judgment trial judge sufficiently outlined basic factual foundation of case and, with reasonable clarity, articulated issues by outlining respective positions of parties. However, thereafter, trial judge did not expressly analyze evidence or issues raised by parties. Nor did trial judge expressly draw any factual inferences, or clearly make any findings of fact (or determinations of credibility) from evidence he reviewed. Beyond brief, conclusory statement as to verdicts trial judge had reached, no further analysis was provided by trial judge. Such reasons were simply not legally sufficient. Reasons by trial judge did not articulate any logical connection between evidence and law and verdicts. While trial judge held that accused was guilty of first charge, trial judge did not expressly find either that accused was in “care or control” of motor vehicle; or that ability of accused to operate motor vehicle was impaired by alcohol. Both of these key factual issues were contested by accused at trial, constituted essential elements of alleged offence, and yet were left unresolved by trial judge. It was only by implication, reasoning backwards from verdict, that one could conclude that trial judge must have silently drawn these factual conclusions. Reasons contained no explanation as to why trial judge impliedly drew those factual conclusions. It was not enough for trial judge simply to recall evidence accurately, rehearse arguments of parties, and then announce his or her verdicts.
R. v. Tong (Mar. 24, 2014, Ont. S.C.J., Kenneth L. Campbell J., File No. 83/13) 112 W.C.B. (2d) 310.

Breaking and entering

GENERAL

Accused intended to commit theft of item which piqued his sexual curiosity

Accused was charged with break and enter with intent. Complainants had hired accused to fix some windows in their house and shortly thereafter some personal items including vibrator went missing and accused had key. Complainants subsequently installed cameras in their house and told accused they would be away next day when accused no longer had key from them. Accused was caught on camera holding pair of underwear in bedroom of complainant on day in question when everyone was away. Accused testified he had no criminal intent and thought he had consent to enter home and was only satisfying his sexual curiosity. Accused found guilty. Court was satisfied that accused intended to commit serious crime when he entered home of complainant. Accused intended to commit theft of some item which piqued his sexual curiosity as he put it in his testimony as court reasoned he intended to keep trophy from his exploits. Court did not believe accused as it was clear that accused did not have permission to enter home on day in question.
R. v. L. (W.) (Mar. 18, 2014, Ont. S.C.J., Conlan J., File No. CR13-110) 112 W.C.B. (2d) 222.

Appeal

GROUNDS

Warrantless search of car justified since it was incident to accused’s arrest

Appeal by accused from his conviction for possession of marijuana for purpose of trafficking. On Oct. 25, 2008, at 10:20 p.m. accused was stopped for speeding and in course of obtaining his documentation police officer noticed that accused appeared to be inordinately nervous. Police officer performed computer search on accused and discovered that he was on bail and that he was subject to a 10 p.m. and 5 a.m. curfew. There was employment exception for curfew. Accused was flagged for violence and he was escape risk. Police officer also discovered that accused drove rental car. Another officer attended and first officer told him there were grounds to arrest accused for breach of recognizance. When accused was told he was under arrest for breach of his bail conditions he refused to get out of car and he had to be forcibly removed. Accused was discovered to be in possession of cellphone. Based on accused’s criminal history officers decided to conduct safety search in area of car around driver’s seat. First officer searched vehicle and noticed strong smell of raw marijuana and he also discovered second cell phone and large amount of cash in jacket. Accused was then arrested for possession of marijuana and trunk was searched and 18 pounds of packaged marijuana in duffle bag was found inside. He was then charged with possession for purpose of trafficking. At trial accused applied to exclude contraband as evidence because it was obtained in violation of s. 8 of Canadian Charter of Rights and Freedoms. Application was dismissed, evidence was admitted and it formed basis for conviction. Appeal dismissed. First officer was not required to investigate and to rule out all possible explanations for accused being out past his curfew before he arrested him. He had reasonable and probable grounds to arrest accused for breach of recognizance and these grounds were justifiable from objective point of view. Warrantless search of front of car was justified since it was incident to accused’s arrest for breach of bail. This search was reasonable and it was valid because it was conducted for legitimate purpose, which was officer safety. Judge was entitled to accept first officer’s evidence about marijuana smell. Since arrest for marijuana possession was valid first officer was entitled to search rest of car and it was lawful search incident to arrest. Marijuana was discovered in circumstances in which accused’s Charter rights were not infringed.
R. v. Valentine (Feb. 26, 2014, Ont. C.A., M. Rosenberg J.A., Paul Rouleau J.A., and Gloria Epstein J.A., File No. CA C54329) 112 W.C.B. (2d) 210.

Appeal

NEW TRIAL

Not clear how trial judge resolved problems with complainant’s testimony

Appeal from conviction. Accused charged on two separate information arising out of same events. On first information, accused charged with attempt to obstruct justice, threatening to cause bodily harm and breach of recognizance. On second information, accused charged with drug offences and breach of probation. Accused was convicted on all counts in first information. At second trial, judge believed accused and disbelieved complainant, and acquitted accused on second information. Evidence of second trial overlapped significantly with that in first trial. Accused appealed convictions from first trial. Appeal allowed; new trial ordered on all three counts. Complainant’s evidence was inconsistent and confused. Trial judge acknowledged problems in evidence but discounted them without explaining why. It was not clear how trial judge resolved problems with complainant’s testimony. Court did not give effect to ground of appeal that assistance of counsel was ineffective.
R. v. Labelle (Jan. 17, 2014, Ont. C.A., K. Feldman J.A., J. MacFarland J.A., and S.E. Pepall J.A., File No. CA C56173) 112 W.C.B. (2d) 113.
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