R. v. D.C.
Her Majesty the Queen, and
 O.J. No. 3803
Ontario Court of Justice
August 1, 2003.
Charges: Impaired Over 80
W. Thompson, for the Crown.
T. Pain, for the accused.
¶ 1 REINHARDT J.: This is a Charter Application being brought by the accused, D.C., with respect to the reasonable probable grounds of the officer – in this case Police Constable Dan Rohde, Badge 5170 from 11 Division, in stopping her vehicle and arresting her for impaired driving in the early morning hours of the 30th November, 2002.
¶ 2 Briefly the evidence which the Crown is relying on to establish RPG is provided by Dan Rohde and he indicated in his testimony before me today that he was on general patrol southbound on Keele at Glen Lake Avenue at the stop light. He was in the centre lane facing southbound.
¶ 3 The light for those vehicles travelling north/south was amber and he observed a northbound vehicle at 7:06 a.m. which turned out to be the vehicle of the accused. It was a 1977 Mazda travelling northbound without its headlights on.
¶ 4 Despite the amber light the car drove right through the intersection. It didn’t slow and maintained a steady speed through the intersection.
¶ 5 It was dusk so that the headlights were needed and prudently required for that circumstance of light – that amount of light.
¶ 6 The officer did a U turn, followed the vehicle northbound and pulled the vehicle over at approximately Humberside.
¶ 7 He indicated in his testimony because of the driving which was the failure to respect the amber light, the headlights, he felt it was reasonable to pull the car over for Highway Traffic Act reasons.
¶ 8 Once he approached the driver and she rolled down the window, the accused before the Court had an odour of alcohol coming both from the interior of her vehicle and from her breath.
¶ 9 She took about thirty seconds to locate her documents. There was some fumbling in that regard and he realized that she was frantically crying and as well that the whites of her eyes were reddish.
¶ 10 She appeared distraught and indicated to him a dispute or an argument that occurred with her boyfriend. She was wearing a housecoat which is an interior garment and for this time of year she was not appropriately dressed for outside but did have on a coat and boots.
¶ 11 He asked her about her drinking and she indicated that she had had three beers approximately two hours before and he said in his testimony before me today that at that stage, after asking that question and making those observations, he formed the opinion that she had alcohol in her body and he asked her to step out of the vehicle.
¶ 12 She stepped out of the vehicle at 7:08 and he forthwith at that point placed her under arrest for impaired driving.
¶ 13 Now that’s the evidence. I have been given a number of cases by the Defence dealing with reasonable and probable grounds – notably Cooper, a decision of my colleague, Justice MacDonnell in 1993 in which he states that … in evaluating on the facts of that case this very same point he states and I quote from page 4, last paragraph, “Whether or not the combination of circumstances articulated by Constable Ellis as the basis for his belief that the accused was impaired is sufficient to meet the Storey test is not needed to be answered in this case, however, because there other relevant circumstances which, in accordance with the Charter, the officer was not entitled to disregard in forming that belief first. After following the accused for some distance, keeping him under observation the officer noted absolutely nothing unusual about the manner of the accused’s driving. Further, when the accused exited his vehicle he exhibited no unsteadiness and he walked to his vehicle in a completely normal fashion. These are very important circumstances in an assessment of whether the belief of the officer of the accused’s ability to drive was impaired by alcohol was reasonably based”.
¶ 14 Now Justice MacDonnell’s decision just highlights the fact that you have to look at all the circumstances and as Counsel has indicated for Ms. C., the Storey test requires a careful consideration of all of these factors in evaluating objectively, not just subjectively but objectively whether or not the officer … and it’s a reasonable man standard if a reasonable person sitting in the same shoes as the officer with the same observations could reach the same conclusion.
¶ 15 Now for the Crown Mr. Thompson has pointed out that really you can’t narrow the discussion to the few moments before the arrest in terms of the reddish of the whites of the eyes, the fumbling with the documents and the smell of alcohol. You must look at all of the circumstances including the driving behaviour immediately prior, the statement that she had had three beers two hours before and essentially all the surrounding factors and he suggests that it’s not a scientific certainty we are looking at here, but simply reasonableness and that there was, in fact, sufficient grounds to make the arrest.
¶ 16 In my view, the evidence of the officer is telling on this point because in going through his testimony in direct he did not mention a reasonable and probable grounds to believe that the accused was impaired. He only mentioned the fact that he was convinced she had alcohol in her system and it is my view that quite properly Defence Counsel has raised or suggested that more investigation could have been done right then and there, either by way of sobriety testing or a roadside screening device.
¶ 17 Neither was done and, in my view, there were not sufficient grounds and the Charter Application succeeds to the extent that I am not prepared to admit the Certificate as evidence of the Over 80 charge or, in fact, of anything.
¶ 18 Now we still need to address the question of impairment. May I hear from you on that, Mr. Thompson.
¶ 19 MR. THOMPSON: Yes, basically, Your Honour, I would just repeat the same argument I made in terms of the impairment – those indicia, along with the fact of the particular type of driving, the fact that she had alcohol in her system would also tend to prove that her driving was impaired.
¶ 20 I don’t have to show you what’s beyond the norm. It’s just that her ability to drive was impaired by alcohol. There is some indicia – that being going through the light; the fact that she is driving at a time when she should have headlights on.
¶ 21 THE COURT: Thank you What do you wish to say, Counsel?
¶ 22 MR. PAIN: I don’t think I have anything further to add to my …
¶ 23 THE COURT: But I have to look at everything now including anything that happened afterwards.
¶ 24 MR. PAIN: Well afterwards we have … okay … I mean … okay, Your Honour, of course the impairment has to relate to the ability to drive and here the indicia we are basically going on are non driving indicia.
¶ 25 There is, of course, the amber light and the head light thing which, in my respectful submission, really is a very weak indicator of impaired driving. The officer never said, “Well, I have some suspicion as soon as I saw her go through the yellow light that this is an impaired driving case”. He was pulling her over because of Highway Traffic Act violations, so the indicia … I would respectfully submit when we are dealing with indicia that are non driving and related like fumbling with the keys, the reddish eyes, that they really have to be strong and relate to an ability to drive before Your Honour can find beyond a reasonable doubt that she is guilty of impaired driving and on top of that, the slew of other indicia we are typically used to hearing on an impaired driving case you are just missing – the loss of balance, the swaying walk, the flushed face …
¶ 26 THE COURT: Slurring of speech.
¶ 27 MR. PAIN: … slurred speech, glazed eyes – the list goes on, Your Honour.
¶ 28 THE COURT: Okay. Back to you, Mr. Thompson, is this really enough?
¶ 29 MR. THOMPSON: Well it doesn’t have to be a marked departure …
¶ 30 THE COURT: I know.
¶ 31 MR. THOMPSON: … okay, so on that basis … I mean the case is what it is frankly. The evidence is that she went through a light, an amber light; there is a police officer and a marked scout car beside. One who is paying attention at that point in time you would think would #1 – make sure that their lights were on during that time of the day or evening and similarly would not proceed through an amber light when it is not proper to do so, especially when the police officer is able to stop.
¶ 32 There is no doubt that she has had alcohol by way of her own admission. Alcohol was subsequently found in the vehicle. I don’t know that there … I mean her eyes are bloodshot. Do we have say … and she fumbles. Do we have to say that her speech is slurred? I mean what more is gained by saying her speech is slurred as opposed to her eyes are bloodshot and she is fumbling?
¶ 33 I mean he makes the observations at the time while she is still in the car so I don’t have any evidence in terms of her stumbling outside, but I don’t know that it’s necessary either.
¶ 34 THE COURT: Okay, the second count, of course, is the impaired count and I won’t ask for anything further from you, Counsel … Defence Counsel. I am not satisfied. The fact is that the driving is a result of very minimal … the driving observations are very short. There is no changing lanes and whatever alcohol was consumed must have an effect on her ability to drive and all I have on that is the lights of the car not being on which is a judgment call at that time in the morning.
¶ 35 I also have the behaviour of not slowing for the amber light but that’s a driving offence which does not necessarily indicate anything other than a driving offence and when frantically crying her eyes would very likely be red and bloodshot.
¶ 36 The fumbling in itself doesn’t really indicate much of anything because it was a very short period of time. I would say all of us might fumble a little bit just by the fact of being stopped. I am not satisfied so that charge is dismissed as well.
¶ 37 MR. PAIN: Thank you, Your Honour.