R. v. Denduk, 2013 ONCJ 337

Court File and Parties

Court File No.: Brampton 11-15334

Date: 2013-05-30

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Lise Denduk

Before: Justice N.S. Kastner

Heard on: November 13, November 20, 2012; February 1, April 24, 2013

Spoken to on: November 28, 2012, January 4, 2013, March 4, and April 24, 2013

Written submissions, in part, received: December 11 and December 21, 2012

Reasons for Judgment released: May 30, 2013

Counsel:

Ms. Helena Gluzman — for the Crown

Mr. Daniel Moore — for the accused Ms. Lise Denduk

Kastner, J.

1: INTRODUCTION

1Lise Denduk is charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood contrary to section 253(1)(b) of the Criminal Code of Canada.

2The trial consisted of the evidence of a tow truck driver, the arresting officer, the certificate of the qualified technician, a forensic toxicologist relating blood alcohol concentrations taken more than two hours later to the time of driving, the defendant, and her friend she had been drinking with. The breath technician was not called, as it appeared she was on an indefinite medical leave from the police force, and the Crown proceeded on certificate evidence.

3Credibility of witnesses is an important feature of this case. The main issue remaining is the two-pronged Charter application.

4Mr. Moore submits that his client's oral statement to the arresting officer at the scene of the incident be excluded pursuant to the decision of the Supreme Court of Canada in R. v. White; and that the right to be secure against unreasonable search and seizure pursuant to section 8 of the Canadian Charter of Rights and Freedoms (the Charter) was infringed in this case, as he submits that the officer "jumped the gun" on reasonable suspicion to make the approved screening device demand. As such, the defence submits that the approved screening device testing and subsequent breath analyses taken on the Intoxilyzer ought to be excluded from evidence.

5The Crown submits firstly that White is distinguishable in the circumstances of this case, and further that she has established the officer had both subjective and objective reasonable suspicion that the defendant had alcohol in her system while operating a motor vehicle, and that if his suspicion fell short; it was close to the line. Therefore, Ms. Gluzman submits that the evidence should not be excluded applying the Grant criteria.

6In the alternative, the defence submits that his client has demonstrated that her blood alcohol concentration at the time of driving was below the legal limit. The Crown submits that the defence, at best, is "straddle" evidence of the blood alcohol concentration which does not amount to a defence to the charge of over 80. However, the Crown submits that she has nonetheless proven a blood alcohol concentration exceeding the legal limit beyond a reasonable doubt.

2: FACTUAL BACKGROUND

2.1: Evidence of Gary Dutra

7Mr. Dutra, a tow truck driver working the south region of Mississauga between Cawthra and the QEW, testified that he was travelling northbound on Cawthra, and observing traffic from the overpass below on the highway. He observed a vehicle with flames and sparks coming from the wheel well travelling on the westbound QEW. He estimated the time as early morning between 3:30 and 4:30 am.

8He said he then entered the QEW westbound from Cawthra travelling behind the vehicle, which had a significant amount of damage to the tire, with flames and sparks coming from the front end. He had not lost sight of it. The vehicle was not travelling at a high speed. No fire extinguisher was needed, as the flames extinguished on their own as the vehicle cooled down when pulled over.

9In cross-examination, he denied waiting by the on-ramp to the highway at Cawthra, nor being flagged down by the driver of the vehicle with the tire damage.

10He testified that he got behind the vehicle and then got in front of it to slow it down. His opinion was that the driver was not aware of what was going on, and thought the driver to be either impaired or tired. He got in front of the vehicle and slowed it down to the right shoulder with his hazards and lights operating, and said the vehicle pulled over because he was in front of it. The vehicle was stopped about 200-300 metres between Cawthra and Hurontario.

11Mr. Dutra stopped, got out of his truck and asked the female driver if she was ok. She replied, "I have a flat tire". He told her it was more than just a flat tire, she had no rim, and she was riding on the control arm. She remained in the vehicle, and then exited to observe the damage.

12Mr. Dutra said that on exiting the vehicle, from the corner of his eye he saw she was staggering and almost fell over the guardrail a couple of feet away. He agreed he did not have a good view of it, and that he wears glasses for distance.

13He was unable to identify the driver in Court "because I only saw her for 5 minutes".

14He called police after he observed the staggering, and the OPP arrived just a few minutes later, since their detachment was only 5 minutes away. He observed Officer Jameson speaking with the driver of that car, and escorting her out of the vehicle. He towed the vehicle to the detachment.

15Mr. Dutra found it unbelievable that the driver would continue to drive on that tire, since the tire itself was missing, the rim worn down, and sparks and flames were coming from it.

16In cross-examination, he denied that the woman was distressed, upset or fearful. He stated she did not tell him she was looking for a tow truck.

17He did not recall her sitting in the passenger seat of her vehicle, or being in the rear of the vehicle.

18In cross-examination he admitted that there was a possibility he was mistaken after more than a year since the incident. He stated that two days later, a man in a Mercedes was driving on the rim of his tire, which he believed was on the drivers' side. He remembered this incident was the passenger side tire, however in the call he made to the police dispatcher, he reported the sparks and flames coming from the left front wheel area of the vehicle.

2.2: Evidence of PC John Jameson

19Constable Jameson had been with the Ontario Provincial Police for approximately one year when he investigated this matter. On November 3, 2011, he received a radio call dispatching him to the area of the Queen Elizabeth Highway (QEW) and Cawthra Road in the City of Mississauga at approximately 4:15 a.m. The dispatch indicated that the complainant was following a vehicle on the QEW in Mississauga and advised that sparks and flames were coming from the left front wheel area as it travelled down the road. He arrived at 4:21 a.m. on scene on the QEW westbound east of Hurontario, west of Cawthra, between Cawthra and Hurontario Street.

20The vehicle was stopped on a very narrow shoulder, and the left front corner of the vehicle was "sitting down low". He also observed a female person in the right front seat, who was the lone occupant in the vehicle. He did not immediate look at the damage.

21The officer recalled there was a Seneca tow driver on scene that he recognized, but did not recall having a conversation with him at the time. There were no other persons around the vehicle, only the lady later identified as Ms. Denduk, and the tow driver. The tow truck was stopped in front of the Denduk vehicle.

22She spoke briefly with the officer, and uttered that she had hit a curb. He observed that there was an odour of an alcohol beverage coming from her breath, and that her eyes were red. He noted her eyes to be watery in the synopsis, but failed to put that into his notes. He asked her what had happened and he recalled she replied that she had hit a curb and either before or after the arrest she said that at the gas station, nobody would help her check the tire. The officer stated in cross-examination that as he approached the vehicle, she was in the process of stepping out, with maybe one foot out.

23At 4:23 a.m., he formed the suspicion that Ms. Denduk had been operating a motor vehicle with alcohol in her body, and made the approved screening device demand. The defendant provided two attempted samples of breath into the 7410 GLC instrument which were not hard enough, and she finally provided a suitable sample which registered an F, or fail result, which meant to the officer that her blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood.

24The result on the approved screening device gave the officer reasonable grounds to believe that she had been operating a motor vehicle with over 80 mg of alcohol in 100 ml of blood, and he arrested her at 4:34 a.m. for that offence.

25The police detachment was very close, the next exit on the highway. They left the scene at 4:36 a.m. and arrived at the station at 4:42 a.m.

26After caution and right to counsel, she said "she had waited three hours", which he was not sure what she was referring to.

27He asked her if she had been drinking, but did not note where he did so. Police Constable Jameson believed he had asked her when she entered his cruiser after she was seated. He related that she said her last drink was at midnight, and that she had two drinks since 7:00 p.m.

28Ms. Denduk was wearing heels, and she seemed steady enough considering the heels. He did not recall if her walk to the cruiser was 'good or bad'.

29At the parking lot of the police detachment, where the Denduk vehicle had been towed, Officer Jameson retrieved her driver's license from the left rear floor of the vehicle. He noted her handbag was on the right front floor, and a suit jacket on the right front seat. He also found a ladies wallet with various cards on the left rear floor, where he had obtained the driver's license. Her credit card was in the front centre cup holder in plain sight.

30Ms. Denduk had indicated she wished to exercise her right to counsel and at 5:00 a.m. a message was left for duty counsel. When no return call was forthcoming, the officer made a second call to duty counsel at 5:40 a.m., which was returned at 5:50 a.m. Ms. Denduk then spent seven minutes in private speaking to the duty counsel lawyer.

31Ms. Denduk also asked the officer to call her husband to indicate where she was and the anticipated time of release. Her husband provided the name of a lawyer he wanted her to speak to and telephone number. He provided that information to Ms. Denduk, but she indicated she had just spoken to duty counsel and was happy with that, and she would follow up later on.

32The officer found Ms. Denduk cooperative, but obviously upset. Upon later signing the promise to appear, she threw down her pen in an upset state.

33The certificate of the qualified technician was served on the defendant indicating that two breath samples were provided into an approved instrument suitable for use and the results were firstly, 143 milligrams of alcohol in 100 millilitres of blood at 6:16 a.m.; and 135 milligrams of alcohol in 100 millilitres of blood at 6:38 a.m.

34Police constable Jameson did not observe any alcohol in Ms. Denduk's vehicle and she did not consume any in his presence.

35He stated that he did not know what he was investigating on his arrival. There had been no mention of any other vehicle, and there were no outstanding calls for a disabled vehicle in the area. While it was clear something had happened to the car, it was unknown what had happened. In his opinion it did not look like a collision. All he could see was the left front corner of the car was down. He would not term what occurred as an "accident", because there did not appear to be any body damage. He was not able to estimate the dollar amount of damage at the scene, but in hindsight accepted it would exceed $1000.

36Originally on the highway, he recalled that the vehicle was "dislodged without much body work, scraped left front lower suspension components, and that it was leaking fluid, either transmission fluid or engine oil". When the officer examined the vehicle later, he did not remember any lights damaged, and that usually there would be significant body damage if there had been a collision and the left front tire detached.

37The tire damage was described as a small amount of the centre of the rim itself was worn away and the lower control arm was actually resting on the ground from the rest of the vehicle where it is normally suspended. No rubber was left on the tire, and he concluded the tire "had been gone a long way away". He remembered that about half of the rim radius was worn away, and the rim was half the diameter it should have been.

38"It's not every day you see a car like that", concluded the officer.

39Ms. Denduk's husband picked her up that morning at the police station in Mississauga, after dealing with the children going to school.

2.3: Evidence of Dr. Robin Michael Corbett

40Dr. Corbett was admitted to be an expert in the area of ingestion, absorption and elimination of alcohol in the body, and the theory and operation of approved instruments including the Intoxilyzer 8000C.

41The Crown put a hypothetical to the witness which indicated the earliest time of driving at 3:30 a.m., to the latest time of driving at 4:21 a.m. and the truncated breath sample results from the Intoxilyzer at 6:16 a.m. and 6:38 a.m. at 140 milligrams of alcohol in 100 millilitres of blood and 130 milligrams of alcohol in 100 millilitres of blood respectively. She asked his opinion of the blood alcohol concentration at the estimated times of driving.

42The hypothetical included that no alcohol was ingested when in police custody. I note that neither bolus drinking nor any drinking post the drinking establishment testified to was suggested by either counsel.

43Dr. Corbett provided a range of blood alcohol concentrations for each time of driving posited. At 4:21 a.m., he said the blood alcohol concentration would be between 132 and 175 milligrams of alcohol in 100 millilitres of blood. At 3:30 a.m., he projected a blood alcohol concentration of between 141 and 192 milligrams of alcohol in 100 millilitres of blood. He explained how he arrived at those ranges.

44He also explained how bolus drinking would affect blood alcohol concentration, and said that at the lowest reading obtained by the Intoxilyzer, it associated to 2.6 drinks of alcohol still in her system at the time of testing at 6:38 a.m., and slightly more than that at the time of driving.

45In cross-examination, Dr. Corbett was asked if the drinking started from 6:00 to 7:00 p.m. to approximately between midnight and 1:30 a.m., and involved two 20 ounce pints of beer 5% alcohol by volume, what the projected blood alcohol concentration would be. He answered that if the drinking began as late as 7:00 p.m., at 3:30 a.m., the range of blood alcohol concentration would be between 2 and 87 milligrams of alcohol in 100 millilitres of blood.

46If the drinking began at 6:00 p.m., the range of blood alcohol concentration would be between zero and 77 milligrams of alcohol in 100 millilitres of blood.

47If the time of driving was 4:00 a.m., the two ranges would be zero to 72 milligrams of alcohol in 100 millilitres of blood with the earlier start, and between zero to 82 milligrams of alcohol in 100 millilitres of blood with the later start time.

48The witness indicated that blood in the mouth would not elevate the breath alcohol result, nor would blood in the stomach elevate concentration of alcohol in a breath sample.

49Dr. Corbett said that the beverage equivalent of a 20 ounce standard drink of beer or 2.5 ounces of 40% alcohol is about 86 milligrams of alcohol in 100 millilitres of blood.

50The best the witness could say on the hypotheticals submitted by defence counsel was the hypothetical person would have a blood alcohol concentration range of zero to 87 milligrams of alcohol in 100 millilitres of blood at the time of driving, but that would be inconsistent with the results later obtained on the approved instrument.

51Many varied hypotheticals were put to the witness in cross-examination in order to arrive at below the "magic 80". The lack of precision of the drinking scenario posited was problematic in evaluating Ms. Denduk's testimony one week later as to what she had consumed and when that evening.

2.4: Evidence of Lise Francine Denduk

52Ms. Denduk in the mother of three children and resides in Burlington with her husband. They are separated but continue to reside together. She has an M.B.A. degree, and has a C.A. designation since 1998. Ms. Denduk has been the banking field for about 8 years at the time of trial, and was in public practise also for 8 years.

53She stated that in early October of 2011, she had a dispute with her then employer bank, and departed that bank. In early November 2011, she was tense and nervous because she was still looking for work as the sole breadwinner for the family, and the negotiations with the bank from her departure were not smooth. She dropped a lot of weight, and was taking medication for ulcers.

54On Nov.1, she said she did not eat at all, or perhaps a piece of toast. She said she did not drink alcohol often at all, "once every two months". She drank only beer, because she was anaphylactic with some mixes and had an issue with red wine. She drank only clear beer so she could see through it, and preferred Stella Artois or anything akin to it.

55On Nov.2, 2011, she had a series of interviews over the day, and met with a number of individuals. She also had several phone calls intervening. Her last meeting was to be with Mr. Michael Chase, the head of analytics and market risk for another bank, and a former colleague. She drove to downtown Toronto for about 1:30 p.m., and preceded that trip by calls beginning at 10:00 a.m.

56Before leaving to drive downtown, she had not eaten, and had only two coffees. She parked on the Esplanade and made her way to her meetings. She indicated she always parked above ground and was anxious to be alone at night.

57Ms. Denduk drove her Volvo V70 vehicle that day. She said her knowledge of cars was "embarrassingly very poor", and that she normally did not pump gas or check the oil as her husband did that. She acknowledged that she had been a driver for a long time.

58She said that she was scheduled to meet with Mr. Chase at 5:00 p.m., but that she arrived a bit late, closer to 6:00 p.m. at the Flatiron building in Toronto, which was a patio outside by the BCE Place. She knew she was late because Mr. Chase told her she was late again. The latest she said she arrived was between 6:00 and 6:10 p.m.

59She testified she did not meet Mr. Chase at his work because it is not permitted on trading floors. She had asked to meet him, but he had arranged the time.

60She said on arrival she ordered a Stella or equivalent beer in a 12 ounce glass. They stayed for a long time, as they had a lot to discuss. The entire time there she said she had only 2 of the Stella beers. She cashed out and paid the bill about 1:30 a.m. to 2:00 a.m. Her receipt from the Flatiron and Firkin was shown to her, and she adopted the time she left as 1:55 a.m. The bill was $49.34, and noted no tip left.

61She believed Mr. Chase was also drinking beer, but he had arrived first, and did not recall that he had a beverage when she arrived.

62She did not feel the effects of alcohol when leaving the bar, and had talked a lot over time, so presumed she had not consumed much.

63She offered to drive Mr. Chase home to the Old Mill area. They continued to talk and she parked at his home to talk. As she tried to retrace her steps and navigate her way to the QEW again, it was unfamiliar, and at a fork in the road she hit the curb with her left driver side tire, but did "not pay too much mind" to it. She thought she had just scraped the outer rim of the tire.

64Ms. Denduk went to The Queensway to get more gas, and when she entered the gas station and veered left, she thought she heard contact or a pop sound. She said she tried to get assistance regarding her popped or blown tire. She asked the attendant to assist her and if she needed to change it, and he said not to do so. There was no one in the garage to assist. She also asked another driver who was getting gas whether the tire was driveable and "they said you are on your own". She also tried to phone her husband and was unable to get him.

65She said she looked at the tire, which was "blown but did not look so inoperable".

66She said that she did not feel safe there in the South Kingsway area, and was anxious and frustrated. She decided to try to head home, but the steering became more challenging. She questioned whether the power steering was a problem, as it had earlier been replaced. She testified her route was along The Queensway west until Cawthra Road in Mississauga. She thought she would get assistance on the highway so she entered the QEW highway at Cawthra and immediately went to the shoulder.

67Ms. Denduk said she saw a tow truck from behind and waved him down. She told the tow driver that her "left wheel is compromised" and he said "yes it is". She presumed that she would need assistance and the car would be towed. He said he was calling the police and she said or thought that was great.

68She denied that the tow truck had forced her to stop, she said that her "recollection is the inverse" of his, that he had not waved her down. She denied staggering and said there was no guard rail. She acknowledged wearing high heeled boots.

69She testified that she thought about when she would be on the highway that the police could be anticipated for "an incident". She thought she needed to report at the incident centre, and the last time it had happened to her, the tow driver took her to the incident centre. She understood from an earlier accident on Highway 401 that when there is a collision on the road, if parts of the vehicle are on the road, or if the damage exceeds $1,000, one had to report it to police. In cross-examination, she admitted she had asked the two officers how much they thought it would cost to repair the vehicle.

70She presumed she needed documents, and had run out of charge on her I-Phone, and was looking for the charger, pulling everything out of her glove compartment, and looking in other compartments. She also thought it was important to reach her husband, and she reached him and said she thinks she broke the wheel on the car.

71When Police Constable Jameson came, she was in the passenger seat. She heard him ask what is up, or what the issue is, but thought it was spoken to the tow driver. She said she told the officer that the wheel was compromised and she was worried the power steering was as well inoperable. He asked her if she had been drinking and she said yes, which she thought were ordinary questions.

72The officer asked her to accompany him to his vehicle and to breathe into a device. She said that part is a bit of a blur because she was nervous, taken aback, and trying to discern what is next.

73In cross-examination she acknowledged that the receipt from the bar tendered in evidence does not break down the quantity of beverages ordered, and that she was relying on her memory. She said she rarely takes back the detailed receipt, and did not obtain one.

74Ms. Denduk insisted that the narrow shoulder of the QEW was a preferable "safe environment" to the gas station lot.

75She admitted she had a cellphone that night with her, and although trying to call her husband a couple of times, agreed she had not called for a tow truck or police. Her first thought was to call her husband, regarding possible roadside assistance from CAA or Volvo. It was coincidence that she reached him finally when already dealing with the tow truck driver.

76She denied telling the tow driver she had a flat tire, and insisted she said her wheel was compromised. Ms. Denduk admitted she told the breath technician at the station that "I think my tire blew", but said she may have said both that the tire was blown and the wheel compromised.

77She admitted in her conversation with the gas station attendant that he had told her that her tire blew. It was suggested to her that he said "there is a frame and no tire", and she said she did not recall him saying that because she remembered seeing a tire, but that it was blown.

78When shown her statement to the breath technician Sousa, she admitted that she told Officer Sousa "I said to him, could you check if everything is ok with my car? And he said 'your tire blew. There is a frame and no tire'". She testified that she does not take these words verbatim, since she saw the tire intact and asked another gentleman, and it was not completely void of tire at that time. She also said she recalled asking the gas attendant if it was really bad and if "we could fix it".

79She had asked the gas station attendant to change the tire, and to call CAA for her, but did not ask him to call police. She took the view that there was not enough damage to warrant it.

80Although she had asked for help she made the decision to drive all the way home on that tire. She said her "intention at the time was thinking the wheel and frame and remnant of the tire was sufficient" to get home and have her husband attend to it.

81She admitted that she had not thought to call police to report, until it became difficult to drive.

82She denied seeing sparks or knowing she had lost the rubber. She had told Officer Sousa she did not see anything outside, but said that referred only to the sparks, and not her knowledge of the rubber. Ms. Denduk said that the rim was not compromised at the gas station.

83She at no time considered getting a taxi for herself, and stated the plan was always for her to drive home that night.

84When asked if the start time for drinking was closer to 7:00 p.m., she admitted it was possible as she was more focused on the conversation and less on the drinking.

85She described her drinking pattern as rarely, once every couple of months if that. She usually would have one beer, and drive if a number of hours had passed. She would also drive after two beer if a sufficient number of hours had passed. She usually is the designated driver.

86Ms. Denduk described the seating at the bar as a table, with herself on one side, and Mr. Chase on the opposite side. They were waited on by a waitress. She said Mr. Chase was drinking beer. When asked how much he was drinking, she answered, "more than I was drinking". She estimated her first drink consumed by 8:10 p.m., and her second drink after 10:10 p.m. She drank water in between drinks and thereafter.

87She said Mr. Chase was drinking pints, usually between $8 to $10 a pint. Neither of them had anything to eat on her bill, and said he ate beforehand.

2.5: Evidence of Michael Christopher Chase

88Mr. Chase first met Ms. Denduk in 2006 when he was the Risk Manager for Global Derivatives in a financial organization where she was Vice-President of Taxation. They had a close working relationship.

89He said Ms. Denduk had called him to arrange a meeting in October to discuss her parting of the ways with his former bank employer, and arranged to meet in early November.

90He recalled the events of that day, although not the date. She met him at the ground floor of his office building at 161 Bay Street between 5:30 p.m. and 6:00 p.m., and then looked for a place to sit down which was not a usual banker hangout. They decided on the Flat Iron building which was three blocks away, and spent the rest of the evening there.

91They arrived at the Flat Iron bar between 6:00 and 6:30 p.m. and talked about her departure circumstances and what she might do next.

92He said he drank three or four pints of beer and had nothing to eat. Ms. Denduk paid and he did not pay for any of the drinks. He said he drank more. She was drinking Stella Artois and he was drinking Creemore. He estimated that he had a minimum of three drinks, probably three if five total were ordered; or four if six in total were ordered.

93Although he normally finished work between 5:30 to 7:00 p.m., he did not remember his time he finished this day in particular. In cross-examination, he then said he remembered finishing closer to 5:30 to 6:15 that day and smiled at the contradiction of not particularly remembering and later being definitive as to what he remembered.

94He was asked what time he left the bar, and he said when it closed, 1:30 a.m. to 2:00 a.m. When shown the bar receipt time as 1:55 a.m., he said it sounded about right.

95His opinion was that Ms. Denduk was not inebriated, and that they walked about five to ten minutes to her car, and then drove about twenty minutes to his home, where they finished the conversation.

96The next day he learned "she had been in an accident" and spent the night in Brampton custody.

97Mr. Chase admitted to speaking to Ms. Denduk about the events that evening at the Flat Iron and trying to reconstruct the events, but denied that included the time they met.

98He has been drinking with her two times before, the last time about 4 or 5 months previous to that. On those dates he had 5 or 6 pints of beer, with an average of three.

99On the night in question he said they sat at a booth, and were waited on by a waiter. He said he was with her the entire evening, but acknowledged that he did leave to go to the men's room on more than one occasion.

100Mr. Chase has also been out drinking with Ms. Denduk since her arrest. The last time was at the end of October (less than one month prior to testifying on Nov.20, 2012). She was not drinking Stella Artois that night, but white wine.

3: ISSUES

101The Applicant submits that Ms. Denduk was in an accident, and believed she was statutorily compelled to make a statement to the officer prior to her cautions because of her obligations under the Highway Traffic Act. Thus counsel submits those answers elicited infringe her rights pursuant to section 7 of the Charter and should be excluded. He submits they cannot be used to form the grounds to make the approved screening device demand or the breath demand.

102The Respondent submits that it is questionable as to whether what occurred with the Applicant's vehicle was an "accident" in law, and further submits that the utterances made by the Applicant were not the report of an accident. Further she submits that the officer did not use them for reasonable suspicion. She says he asked if Ms. Denduk had been drinking to ensure she had no mouth alcohol before administering the approved screening device.

103The Applicant's counsel's position is that the officer did not either subjectively or objectively hold a reasonable suspicion that there was alcohol in her body while operating a motor vehicle. Thus he submits that there were no lawful grounds to make the approved screening device demand in section 254(2) of the Criminal Code, and that this infringed his right to be secure against unreasonable search and seizure.

104Secondarily, the Applicant submits that the admission of the Intoxilyzer results obtained following the fail result on the approved screening device and the subsequent demand pursuant to section 254(3) of the Criminal Code should be excluded as their admission would tend to bring the administration of justice into disrepute.

105The Respondent submits that the officer did hold a reasonable suspicion that there was alcohol in Ms. Denduk's system when he arrived on scene and made certain observations, on both a subjective and objective basis.

106Thus, the Respondent submits that the officer's approved screening device demand was lawful, as was the subsequent breath demand.

107In the alternative, the Respondent submits that the Applicant has failed to meet the onus in section 24(2) of the Charter, and that the breath results obtained at the station on the Intoxilyzer ought to be admitted.

108In the alternative to the Charter relief sought, the defence submits that evidence to the contrary proffered by Ms. Denduk places her blood alcohol concentration at the time of driving below 80 milligrams of alcohol in 100 millilitres of blood.

109The Crown submits that Ms. Denduk's evidence of consumption is not reliable or sufficiently trustworthy to displace the Intoxilyzer evidence as related back to the blood alcohol concentration at the time of driving. She further argues that on the evidence of Dr. Corbett, the Accused's blood alcohol concentration exceeded the legal limit on any reasonable scenario of the time of driving; and at best the evidence on the defence hypothetical straddles the legal limit at the time of driving.

4: ANALYSIS

4.1: Factual Findings

110The Court has carefully listened to the evidence of all the witnesses over the two dates of trial where evidence was called. In addition, I have examined all the exhibits tendered.

111One exhibit sought to be tendered was a drinking glass. It was not put in by the defendant as to what she was drinking from that night in examination in chief. It was not put to the forensic toxicologist who would be in a position to indicate the volume of liquid it would likely contain. It was shown to Mr. Chase, who indicated that Ms. Denduk was drinking from a standard bar glass, which "looks lot like that". It was ultimately admitted as a lettered exhibit only.

112Assessment of credibility by the Court is in accordance with the guidelines of R. v. W. (D.).

113Constable Jameson was an entirely believable witness. He was not prone to exaggerate at all, and gave several answers favourable to Ms. Denduk, giving her the benefit of the doubt. For example, he stated that her walking was fine considering that fact that she was wearing high heeled boots on a gravel shoulder. He called her husband for her on request, and ensured that she was released promptly from the detachment to his care. In all, I accept his evidence as truthful and reliable.

114The tow truck operator, Mr. Dutra, was cross-examined about possible motivation to favour the police to secure a towing job, but that was merely speculative in the circumstances, since the defendant herself indicated she had waved over the tow truck driver to assist her in towing her vehicle.

115There were two main areas of inconsistency to address in his evidence. First, the fact that he ascribed the flat tire to the passenger side rather than the driver side of the Volvo. Mr. Dutra testified from memory without the benefit of notes, photos, or other aide-memoires. He had called the police because he made observations which caused him to believe that they should be involved. His call in to the dispatcher mentioned flames and sparks coming from the left front wheel area, consistent with the driver's side front tire. The damage to the tire area as observed later by the police officer corroborates the description provided by the witness. It was the raison d'etre for the intervention of the tow truck driver, and this discrepancy does not detract from his credibility overall. He admitted it was possible he was mistaken as to which of the two front tires were damaged, particularly as he had an incident with another driver operating his vehicle a week later driving on the tire rim, which involved the opposite front tire.

116Second, Mr. Dutra said that he saw Ms. Denduk stagger and almost fall over the guardrail. This caused him to call police. His observation does not directly accord with Officer Jameson's evidence, but he is not discredited either. Officer Jameson did not describe a guardrail, but did refer to a "Jersey barrier" or sound barrier that one might call a guardrail on an accident report, but he did not regard it as such. It was elevated bars on the passenger side of the vehicle in question. Ms. Denduk was wearing high heels on gravel, so it was possible she had uneven footing at the point Mr. Dutra saw her from the corner of his eye. The officer was not there when the tow truck driver made his observation which was admittedly a fleeting glance. The witness was not prone to exaggeration, and he admitted he could not identify the driver on the trial date, as he only saw her a few minutes.

117I accept Mr. Dutra's evidence. It accords with common sense, and he withstood cross-examination well. Given the wear on the tire rim and the lack of rubber left on the tire, it is consistent that contact with the road surface would emit sparks and generate heat to the point of showing flame. It would likely be visible to the driver of the vehicle, and certainly be visible to a tow truck driver attuned to looking at vehicles on the highway from an overpass in the middle of the night.

118I accept that he initialized the stop of Ms. Denduk's vehicle in the manner he described. Her description of how and where she entered the highway and how she came to a stop are utterly devoid of belief.

119The Court also finds that the officer was seen to be speaking to the driver of the motor vehicle, and he escorted her out of the vehicle before the vehicle was towed to the detachment. Inferentially, Mr. Dutra's evidence identifies Ms. Denduk as the driver.

120Dr. Corbett's credibility was not challenged. His evidence is a straight forward calculation of projected ranges of blood alcohol concentration at given times in the hypothetical, and serves to supplement the certificate evidence by relating back readings from the Intoxilyzer to the time of driving approximately two hours earlier.

121The hypotheticals put to Dr. Corbett in cross-examination are dependent on their foundational facts being established before the results posited can be given any weight. Mr. Moore candidly concedes that if his client's evidence of consumption and drinking scenario is rejected, that the Crown has proven their case.

122Dr. Corbett also testified the Intoxilyzer 8000C is a generally reliable instrument when operated properly by a qualified technician. In this case, no direct issue was taken with the approved instrument itself, its manner of operation, or whether it was malfunctioning.

123Ms. Denduk testified on the second day of trial, after the Crown case was complete. There were a number of issues with her evidence that undermined the reliability that could be accorded to it. Firstly, some of her evidence was internally inconsistent. For example, the time estimates of when she began consuming alcohol varied from 6:10 p.m. to 7:00 p.m. The time she left the bar was stated to be about 1:30 a.m. to 2:00 a.m., but she then was shown her Visa bill receipt, which she adopted as cashing out at 1:55:15 a.m.

124She was inconsistent in whether she knew her tire was entirely blown. In examination in chief, she said that at the gas station on The Queensway she had looked at the tire and it was blown but not inoperable. On the other hand, she said that she asked both the attendant and another patron if her tire was driveable. In cross-examination, she denied that the gas station attendant had told her that her tire blew and there was a frame but no tire. Nonetheless, she adopted that she may have related that to the breath technician as to what she was told, but that she did not "take these words verbatim" because she saw the tire intact. The Court finds she was told that she had no tire but only a frame whilst still in Toronto, and before she entered the QEW highway, and she made a decision to carry on driving without regard to that.

125Further, she denied telling the tow truck driver that she had a flat tire and insisted she had said that "her wheel was compromised". Ms. Denduk also admitted telling the breath technician that she thought her tire had blown, but thought she had said both the former and the latter. The varied version she tells of a critical part of her evidence severely affects the weight to be given to it.

126Ms. Denduk's evidence is also inconsistent with that of other witnesses. As already outlined, her testimony about when and where she entered the highway, and the rationale behind that decision is wholly inconsistent with the observations made by the tow truck driver, which I accept. It makes sense that she got on that highway earlier because it was the most direct route to her home in Burlington. The damage to the tire rim is significant and according to the officer indicated the tire had been gone a long way away, as the rim was the half its original diameter.

127It makes no logical sense that she would enter a high speed 400 series highway with either a flat tire, compromised wheel, or steering issue in order to find assistance. Ms. Denduk had a cellphone in her possession that she had used that night. She is an educated woman who was quite capable of getting assistance herself. One would not expect a lone cashier at a late night gas station to provide hands on assistance sometime after 2:30 a.m. A lit up gas station was much safer than a narrow shoulder on a busy highway to await help. The police station was only five minutes from where she was pulled over and easily accessed by cellphone. She was aware of various forms of roadside assistance. The reasonable inference to be drawn is that she knew she had been drinking and took a chance on mechanical fitness of her vehicle to avoid contact with authorities.

128Ms. Denduk's evidence is also somewhat inconsistent with that of Mr. Chase; in particular, they differ on where and when they met, the type of seating arrangement at the pub, and the gender of their wait staff. Some of those matters are of less significance, but the time that she and Mr. Chase met, and the location is not insignificant when one considers the expert evidence on timing. Her detailed insistence that she arrived after Mr. Chase and was chastised for being late is wholly different than his evidence that they met at his workplace and then together decided on the place to go.

129Ms. Denduk insisted she only drinks clear beer when out for drinks, and provided elaborate evidence of the reasons; yet she went out drinking after the alleged offence with Mr. Chase and was drinking wine.

130In addition, it is difficult to accept that Ms. Denduk had only two drinks over an eight or possibly nine hour period in a drinking establishment where she was there until close of business.

131I reject her evidence as credible, and am unable to put any reliance on it. It does not raise a reasonable doubt.

132Mr. Chase is relatively consistent on the quantity of alcohol consumed with Ms. Denduk, but I cannot give much weight to his evidence, as he admittedly was suffering the effects of alcohol sufficient to not be capable of operating a motor vehicle himself. In addition, the discussions he had had with Ms. Denduk after her arrest may have tainted the independence of his testimony on this point.

133Mr. Chase is also inconsistent with Ms. Denduk concerning how and when they met that day. His earlier evidence in examination in chief that he did not remember the time he finished work that day and his change of evidence in cross-examination on that point also affects the weight of his evidence.

4.2: Charter s. 7

134The Applicant argues that statutory compulsion to speak to police infringes the right against self-crimination and infringes section 7 of the Charter.

135Section 7 of the Charter reads as follows:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Where a court is called upon to determine whether s. 7 has been infringed, the analysis consists of three main stages, in accordance with the structure of the provision. The first question to be resolved is whether there exists a real or imminent deprivation of life, liberty, security of the person, or a combination of these interests. The second stage involves identifying and defining the relevant principle or principles of fundamental justice. Finally, it must be determined whether the deprivation has occurred in accordance with the relevant principle or principles: see R. v. S. (R.J.), at p. 479, per Iacobucci J. Where a deprivation of life, liberty, or security of the person has occurred or will imminently occur in a manner which does not accord with the principles of fundamental justice, a s. 7 infringement is made out.

136The Applicant relies upon the decision of White in the Supreme Court of Canada, as well as the Ontario Court of Appeal in R. v. Soules.

Accident

137The Applicant accepts that in order for her claim of statutory compulsion to succeed she must in fact have been statutorily compelled. Section 199 of the Highway Traffic Act provides that:

Duty to report accident

199. (1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3).

Officer may direct person to report accident at another location

(1.1) If, on reporting the accident to the nearest police officer under subsection (1), the person is directed by the officer to report the accident at a specified location, the person shall not furnish the officer described in subsection (1) with the information concerning the accident but shall forthwith attend at the specified location and report the accident there to a police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3).

Where person unable to report

(2) Where the person is physically incapable of making a report and there is another occupant of the motor vehicle, the occupant shall make the report.

Duty of police officer

(3) A police officer receiving a report of an accident, as required by this section, shall secure from the person making the report, or by other inquiries where necessary, the particulars of the accident, the persons involved, the extent of the personal injuries or property damage, if any, and the other information that may be necessary to complete a written report concerning the accident and shall forward the report to the Registrar within ten days of the accident.

Report of police officer

(4) The report of a police officer under subsection (3) shall be in the form that is approved by the Minister.

Regulations as to amount of property damage

(5) The Lieutenant Governor in Council may make regulations prescribing the amount of property damage for the purposes of subsection (1).

138The word "accident" has not been defined in the Highway Traffic Act. In R. v. Hill, Dickson, J. stated that: "the word 'accident' is not defined in The Highway Traffic Act and is not easy of definition as its meaning has a certain chameleon-like quality, changing its colour with the context in which it is found". The defence submits that the Court considered, without deciding, the following possible definitions in the context of a prosecution for failing to remain at the scene of an accident contrary to the Highway Traffic Act:

a) an "accident" has occurred the moment two vehicles, a vehicle and a pedestrian, or a vehicle and any object come into contact accidentally and that even without damage, the obligation to remain is immediately imposed by the section

b) any chance mishap or unforeseen contingency or occurrence

c) an "accident" consists of two elements, "chance occurrence" and "resulting loss, injury or damage"

139The Crown indicates in response that the Court in Hill was split in its decision and the reference to "chance occurrence resulting in loss, injury or damage" relied on by Mr. Moore appears only in the dissenting opinion. Justice Dickson for the majority found it unnecessary to comment on the definition of "accident".

140"Accident" has also been defined in the context of the Highway Traffic Act in another decision of the Ontario Court of Justice as, "an event where there is a motor vehicle collision with another vehicle, object, animal or person".

141The recent decision of the Ontario Court of Appeal in R. v. Hajivasilis is quite helpful in interpreting this statute, although with respect to another contextual analysis on whether the statute is confined to accidents occurring on the highway.

142Mr. Justice Doherty indicates the following with respect to the Highway Traffic Act (HTA):

48 The modern approach to statutory interpretation looks to the purpose or object of the statute as an aid in interpreting the statute's provisions. This approach is legislatively mandated in Ontario by s. 64 of the Legislation Act, 2006:

64(1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

49 There is no preamble to the HTA and nothing in the Act speaks directly to the objects of the HTA. Nor did counsel in their comprehensive presentations refer to any of the usual secondary sources that might assist in pinpointing the objects of the Act. In attempting to discern the object of the HTA, one is left with the circular proposition that the words of the HTA enlighten the reader as to the objects of the HTA which in turn assist the reader in giving meaning to the words in the HTA. As Rothstein J. recently cautioned in Canada v. Craig, 2012 SCC 43, 347 D.L.R. (4th) 385, at para. 30, interpreting words by reference to unexpressed legislative intention purportedly discovered through a purposive reading of those words must be avoided: see also Shell Canada Ltd. v. Canada, 1999 CanLII 647 (SCC), [1999] 3 S.C.R. 622, at para. 43.

50 Bearing that caution in mind, the case law does identify in broad terms the object of the HTA. In R. v. Raham, 2010 ONCA 206, 99 O.R. (3d) 241, at para. 33, the court refers to the HTA as "public welfare legislation designed to protect those who use the roads of the province." Earlier, in Hydro-Electric Power Commission of Ontario v. Bruell Float Service Ltd. (1974), 1974 CanLII 34 (ON CA), 3 O.R. (2d) 108, at p. 114, aff'd on other grounds 1975 CanLII 17 (SCC), [1976] 1 S.C.R. 9, this court said:

The general purpose of the Highway Traffic Act is the regulation of the use of the highways by persons on foot and in vehicles; that is not to say that certain provisions of the statute will not apply to the use of vehicles other than on a highway, but in an over-all sense the Legislature is directing itself to the regulation of vehicular traffic and not to commerce conducted in or by means of vehicles.

51 In my view, regulation to protect the public using the province's roads is not necessarily limited to roads that fall within the meaning of "highway" in the Act. Public safety concerns might well demand regulation in respect of traffic in large private parking facilities even though those facilities are not used by the general public for "the passage of vehicles". Similarly, public safety concerns might well demand the regulation of private parking facilities as incidental to regulations maintaining the safety of the "highway" leading into and out of that facility.

52 Insofar as s. 199 is concerned, I think it can be argued that public safety is enhanced by a general reporting requirement with respect to accidents involving injury or a certain level of property damage. Lessons learned from the reports with respect to those accidents may enhance the overall safety of the roads by identifying safety concerns that have application beyond the immediate circumstances of the particular accident. [emphasis added]

53 When I place the language of s. 199 in the context of its related provisions, the HTA as a whole, and the object of the HTA, I see no reason to read the word "highway" into the Act. In my view, the section makes perfect sense and is consistent with the object of the HTA if it is read as written.

143None of the broad social or public safety concerns referred to by the Court of Appeal in this passage seem to apply to the facts in this case, where the defendant's damage to her vehicle occurs due to incidental contact with some unknown object or curb. It appears the damage is largely self-inflicted by driving on a blown tire and degrading the wheel rim to a serious degree. There is no evidence here of any damage to other property, or even vehicular damage outside of that caused by driving on the wheel rim. The officer noted no broken lights, or significant body damage consistent with a collision.

144Although obiter, the Court referred in Hajivasilis to an additional submission by amicus curiae on behalf on the appellant, as follows:

55 First, amicus submits that an interpretation that extends s. 199 beyond accidents on "highways" leads to absurd results. For example, he suggests that the appellant's interpretation would require persons who slam their hands in a car door while it is parked in their driveway to report that "accident" under s. 199.

56 The potential absurdity raised by amicus turns on the meaning of the word "accident" in s. 199 and not on whether the section applies to places other than "highways". Any problems relating to the interpretation of the word "accident" arise in respect of the various reporting conditions imposed in ss. 199, 200 and 201. That interpretative problem is for another day [emphasis added].

145Officer Jameson did not interpret the request for his presence to be an "accident investigation". He was emphatic that he did not know what had happened, and had no preformed opinion on his arrival. He did not even truly examine the vehicle until he was back at the police detachment where it had been towed. On scene, he only noted that one corner of the vehicle was lower down or "sitting down".

146I do not accept that Ms. Denduk's mindset was that she had been in an accident at all. She knew she had a flat tire or blown tire, but continued driving on it.

147The Crown invites the Court to consider the definition of "accident" in Section 252 of the Criminal Code in the context of failing to remain at the scene; that is an accident is one involving another person, a vehicle, vessel or aircraft, or cattle in charge of another person. She states that hitting a curb would not meet this definition. The defence submits that Section 252 refers to accidents where there is an obligation to remain, and the absence of such limitations in section 199 of the HTA supports a broad interpretation of that statute.

148The Crown further submits that the same definition of "accident" applies to section 199 of the HTA as in the Code.

149On the facts of this case, there is no evidence of any property damage, other than to Ms. Denduk's vehicle. The damage noted to the vehicle is due to her continued driving rather than the resultant contact, if any, with a curb. Even on a broad purposive interpretation of the definition of "accident", it is unlikely, as argued by Mr. Moore, that Ms. Denduk's perceived issue with her power steering meets any such definition. I am inclined to the view that what happened to the tire that night likely does not meet the definition of "accident".

Report

150In the event that the side of the front tire striking a curb is an "accident" as contemplated by the HTA, I go on to consider if Ms. Denduk had a duty to report, whether she did report, and whether she had the belief that she was under an obligation to speak to the officer by statute when she did so.

151Even if the incidental contact of the side of a tire with concrete amounts to an "accident" within the meaning of the HTA, the initial damage to the tire would be well below the statutory reporting requirement before Ms. Denduk exponentially exacerbated the damage herself. Any damage to the control arm, suspension or vehicle fluids was directly caused by the hard driving on a non-existent tire.

152If Ms. Denduk was under a duty to report at the time because the event falls within the definition of "accident", I do not consider her brief statement that she "hit a curb" as a report. As Justice Duncan said in the decision of R. v. Parol:

It seems to me that it would be a stretch beyond the breaking point to consider this exchange as the making of a report within the meaning of the statute. It does not fit the ordinary meaning of the word or the concept of reporting. The Court in White made the distinction between the making of a report pursuant to statute and "ordinary police investigation". Nothing could be more ordinary and natural than a police officer arriving at the scene of an accident and asking who was driving. If the exchange in issue here is considered a "report" then the "dividing line" drawn by the Court in White would be completely obliterated.

A minor accident happened and a police officer arrived and inquired of the lone man standing beside the car whether he was driving - an obvious and natural question to which the accused gave a natural response. I don't think that a belief in statutory compulsion had any role in the exchange at all. The defendant's answer was motivated by his belief that he should co-operate with police officers. Respect for, or even fear of police may have contributed to his co-operation, but that is not the same thing as answering questions in order to comply with a known or suspected statutory obligation to report: R. v. Manley. I have no doubt that had the situation involved not an accident but, say, an illegally parked car and the officer asked "Is this your car?" the defendant would similarly have answered the question.

I view this application as an attempt at strained re-casting of what occurred into an ill-fitting mould in order to achieve a desired legal end. I reject that attempt and find that the defendant did not make his statements as a result of any belief in a statutory duty to report an accident.

153I agree with Justice Duncan, and find that the White argument fails. I further find in this case that the defendant Ms. Denduk had no such belief that she ought to report. She continued to drive long after contact of the tire and an object. She bypassed police to take an obvious route to her home. She had the means to report by cellphone and did not do so. She had no idea about and was oblivious to the damage she was causing. The officer made no mention of any requirement to report throughout his dealings with the defendant. Ms. Denduk did not mention this requirement in her dealings with authorities; in fact she asked the officer how much damage there was to her car. I reject her assertion at trial that she held this subjective belief as incredible.

154This case is distinguishable from the Soules decision, supra, where the trial judge accepted the evidence of the Accused that he spoke to the officer at the scene because he understood he was required to do so by law in light of the accident. In addition, I note that the case at bar did not involve the investigation of a "scene", rather a disabled vehicle on the highway.

155Moreover, in this case, without the challenged statement, there is ample evidence for the officer to reasonably conclude he was dealing with the driver of the motor vehicle when he came upon Ms. Denduk in the passenger seat, including the contents of the car in disarray which included a woman's jacket and purse contents, the time of night after 4:00 a.m., the presence of only this woman and the tow truck on the shoulder, the short proximity between the scene and the police detachment of some five minutes, and the preceding dispatch information.

156The officer also readily smelled the odour of alcohol on Ms. Denduk's breath when he approached her. He had the foundation for a reasonable suspicion that she had recently been driving with alcohol in her bloodstream.

4.3: Charter s. 8

157Section 254(2) of the Criminal Code permits an officer to make a demand to provide a breath sample into an approved screening device in the circumstances set out in that section; to wit:

If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body, and that the person has, within the preceding three hours, operated a motor vehicle…or had the care or control of a motor vehicle… whether it was in motion or not, the peace officer may, by demand, require the person to comply…with either or both of paragraphs (a) and (b), in the case of alcohol:

To perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

To provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. (emphasis added)

158The resolution of the issue of whether the approved screening device demand was lawful or not informs the finding of whether the Applicant's Section 8 Charter right was infringed. A lawful demand and results obtained by a properly administered approved screening device are admissible in evidence. A flawed demand fails to comply with the legislative scheme in the Criminal Code and renders any subsequent result an infringement of the Charter.

159An assessment of the constitutionality of a search and seizure, or of a statute authorizing the search or seizure, focuses on the reasonable or unreasonable impact on the subject of the search and seizure, and not simply on its rationality in furtherance of a valid government objective.

160There is a presumption of unreasonableness where the search has taken place without a warrant. There is, however, no intrusion on a reasonable expectation of privacy where a person is required to submit to the administration of the taking of a breath sample according to law. In this case, the burden rests on the Crown to establish that the demand was lawful, rendering the search reasonable, on a balance of probabilities: see Hunter v. Southam Inc. and R. v. Haas.

4.4: Reasonable Suspicion

161Section 254(2) of the Criminal Code frames the parameters for the demand as including "reasonable grounds to suspect" the presence of alcohol in the body.

162"Reasonable suspicion" is a much lower threshold than "reasonable and probable grounds to believe". The officer need only reasonably suspect that the driver has some alcohol present in his body. "They need not suspect impairment, nor an illegal blood level": see Kenkel, Impaired Driving in Canada, 2012/13 ed., LexisNexis, at page 10.

163I adopt Justice Casey Hill's summary of the contours of the reasonable suspicion standard as follows:

(1) "The reasonable suspicion standard is a pragmatic and balanced response to the realities of modern law enforcement": R. v. Kang-Brown, at para. 166 per Deschamps J., dissenting in the result.

(2) Reasonableness comprehends a requirement of probability: Baron v. Canada, 78 C.C.C. (3d) 510 (S.C.C.) at 532.

(3) The reasonable suspicion standard has been described as not "unduly onerous" (R. v. Mack, at 554) and "necessarily ...low": R. v. Cahill, 13 C.R. (4th) 327 (B.C.C.A.) at 339. It is an intermediate standard: R v. A.M., 230 C.C.C. (3d) 377 (S.C.C.) at para. 60, 82. Because reasonable suspicion "is a less demanding standard than reasonable grounds" (R. v. Bennett, 108 C.C.C. (3d) 175 (Que. C.A.) at 183), it has been correctly observed "that a reasonable suspicion will much more frequently be wrong than will be reasonable and probable grounds": T. Quigley, "Brief Investigative Detentions: A Critique of R. v. Simpson" (2004) 41 Alta. L. Rev. 935, at para. 20. Put differently, the reasonable grounds to suspect standard is a minimal level of belief which does not rule out the possibility of innocent conduct or "other reasonable possibilities": United States v. Gould, 364 F. 3d 578, 593 (5th Cir. 2004).

(4) Binnie J., at para. 75 of R. v. Kang-Brown, observed:

The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P. Sankoff and S. Perrault, "Suspicious Searches: What's so Reasonable About Them?" (1999), 24 C.R. (5th) 123:

[T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely held subjective belief is insufficient. Instead, to justify such a search, the suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment.

What distinguishes "reasonable suspicion" from the higher standard of "reasonable and probable grounds" is merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must exist to support the search. [pp. 125-26]

Writing about "reasonable suspicion" in the context of the entrapment defence, Lamer J. in R. v. Mack, [1988] 2 S.C.R. 903, thought it unwise to elaborate "in the abstract" (p. 965). See also R. v. Cahill, 13 C.R. (4th) 327 (B.C.C.A.), at p. 339. However, in Alabama v. White, 496 U.S. 325 (1990), the U.S. Supreme Court contrasted "reasonable suspicion" with reasonable grounds of belief (or, what the U.S. lawyers call "probable cause"):

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. [p. 330]

See also R. v. Lal, 130 C.C.C. (3d) 413 (B.C.C.A.) at 423 (leave to appeal refused [1999] S.C.C.A. No. 28) ("Since the standard for reasonable suspicion is less demanding than that for reasonable belief it can arise from information that is less reliable than that required to show reasonable belief"); R. v. Lewis, 122 C.C.C. (3d) 481 (Ont. C.A.) at para. 27 (anonymous informer tip and verification of some details only, falling short of Debot guidelines, nevertheless amounting to reasonable suspicion).

(5) While a reasonable suspicion involves lesser probability than reasonable and probable grounds, it cannot be limited to a hunch or feeling without extrinsic evidence: R. v. Barnes, at para. 16. Accordingly, the standard is not a hunch based on intuition gained by experience (R. v. Mann, [2004] 3 S.C.R. 59 at para. 30) or a well-educated guess: R. v. A.M., at para. 91. An officer's subjective belief must be accompanied by objectively verifiable evidence supporting reasonable suspicion: R. v. A.M., at para. 42, 80.

(6) What is reasonable "by its very nature, must be assessed in context": R. v. Jackpine, 207 C.C.C. (3d) 225 (S.C.C.) at 243. The totality of circumstances viewed as a whole must be considered: R. v. Jacques, [1996] 3 S.C.R. 312 at para. 25. Reasonable suspicion "is dependent on both the content of the information provided to the police and its degree of reliability": R. v. Lal, at para. 30; R. v. Bennett, at 181. While the existence of reasonable suspicion is very much a fact-specific inquiry, "it is important that the test laid out in Mack not be applied in a mechanistic fashion. If it is, there is a danger that sight will be lost of the rationale for the defence of entrapment that has been elucidated in that decision": R. v. Benedetti, at para. 19.

164The subjective component "amounts to an actual or honest belief": see R. v. Censoni, at paragraph 34. The Court must examine the totality of circumstances to determine if there is objectively verifiable evidence supporting reasonable suspicion, as opposed to a hunch or well-educated guess.

4.5: Application to Facts of this Case

165The Court considers on the totality of evidence whether the officer subjectively had a reasonable suspicion that Ms. Denduk had alcohol in her body, and whether that suspicion had an objective basis underlying it.

166I propose to deal with the Applicant's arguments in sequence on this issue.

The odour of alcohol

167The smell of alcohol alone coming from a driver's breath is sufficient grounds for a screening device test. In addition:

A Court can consider delay in leaving a stop light, apparent confusion, bloodshot eyes, and slurring of speech as grounds for suspecting the presence of alcohol. While there may be other explanations for having bloodshot eyes late at night, or slurring of speech, that does not remove those factors from consideration in forming a reasonable suspicion.

R. v. Singh.

In this case, Ms. Denduk also had red watery eyes when first observed.

168I also am mindful of the Ontario Court of Appeal decision of Wang which held that the absence of particular indicia does not necessarily render the officer's belief unreasonable where other evidence provides an objective basis for the suspicion or grounds: R. v. Wang.

169Similarly, the denial of consuming alcohol, or the driver's assertion of the amount and time of consumption, will be considered by the officer in assessing either reasonable suspicion, or even reasonable and probable grounds in other scenarios, and an officer may be "naturally sceptical" as to the reliability of the driver's account "given any experienced officer's enforcement experience with drinking/driving scenarios".

170A police officer is not obliged to accept every explanation of statement provided by an investigatively detained suspect. As was stated in the Mutisi decision, "if a driver claims to have 'had one beer or nothing to drink, the officer was not required to accept what he was told": R. v. Bush, at para. 66, 68; R. v. Censoni, at para. 47.

171In this case, Ms. Denduk admitted to consuming alcohol earlier.

The nature of the driving

172In this case, there is the evidence of driving of the Applicant preceding the stop which was observed by the tow driver in this case. The defendant drove hard and long on a non-existent tire. A trained and experienced police officer would not unreasonably consider that the cause of such aberrant driving or loss of judgment may be alcohol-related.

Other physical observations

173The Applicant's eyes were red and watery. Although her speech and balance were not noted to be aberrant by the officer, she was agitated at the station.

174The fact that there are alternative explanations for some of the observations made by the officer does not detract from the fact that there exists a reasonable suspicion: see R. v. Defend, supra, at para.23.

175Justice Durno in a case somewhat analogous on the higher threshold of reasonable and probable grounds, R. v. Bush, commented in dealing with a similar "rush to justice" argument that there is no minimum time period nor mandatory questioning that must occur before an officer can objectively have reasonable and probable grounds (para.60).

176The learned Justice noted that a trained officer is entitled to draw inferences and make deductions drawing on experience. A trial judge can take that experience and training into consideration in assessing whether he objectively had reasonable and probable grounds (para.61). In this case, the Court must consider the officer included in the articulation of the reasons for his suspicion his experience in other similar investigations.

177The fact that Ms. Denduk was not displaying gross outward signs of impairment does not speak directly to whether there was a reasonable suspicion he had alcohol in his body. Obviously the more obvious this would be in other cases, the more likely an officer would have reasonable and probable grounds to make the breath demand, as opposed to a demand for testing on the approved screening device.

178The officer is required to consider that the absence of indicia may detract from the objective component of reasonable suspicion.

179As Justice Hill stated in the case of R. v. Mutisi:

Day-in, day-out, police officers acting on reasonable suspicion, properly administer ASD tests to drivers based on abnormal driving conduct and subsequent admission of alcohol consumption in traffic stops. In many instances, there is otherwise an absence of observable signs of alcohol consumption. Some of these drivers register a pass in the ASD test while others do not. It is unclear to me why, as submitted by the appellant, there must be an observable physiological symptom for there to be a justifiable belief that some alcohol exists in a motorist's body. [paragraph 25]

180I agree with the latter observation.

The evidence of Constable Jameson

181The Court must look to the testimony of the investigating officer to determine whether he is credible, reliable, and establishes that she had the minimal reasonable suspicion there was alcohol in the Applicant's body at the time of the demand.

182The Court finds him credible as a witness.

183I accept that the officer subjectively suspected that the Applicant had alcohol in his body at the time he spoke to her at the time of the investigation at the scene.

184I am satisfied to the requisite degree of proof that his suspicion was objectively supported in the totality of circumstances and that the approved screening device demand was lawful.

185Therefore, I do not find a breach of her section 8 rights.

186In the event that the Crown has failed to establish strict compliance with the prerequisites for the demand, I will go on to consider the arguments made for and against the exclusion of evidence.

4.6: Charter s. 24(2)

187In R. v. Grant, the Supreme Court of Canada set out a three-branch test for exclusion under section 24(2) of the Charter that trial courts must balance, namely (i) the seriousness of the breach; (ii) the impact on the Charter-protected interests of the Accused; and (iii) society's interest in adjudicating the matter on its merits.

188With respect to the first branch, I do not find if there is any breach that is that serious. As distinguished by Justice Schwarzl in R. v. Krizanac at para. 23, unlike the case of R. v. Au-Yeung wherein it was found that the officer was incompetent based on a systemic malaise in the police department and he had acted indifferently to the rights of the Accused, I find that P.C. Jameson was conscientious, well versed in his duties and careful in following that duty. She arrived on the scene with no preconceived opinions. If there was a breach of Accused's rights, it was at the lower end of the spectrum of seriousness and would not favour exclusion.

189In applying the second branch of the Grant test which is to assess the impact of a breach on the Charter-protected interests of the Accused, I agree in part with the reasoning in R. v. Au-Yeung, supra that while the taking of breath samples is minimally intrusive, there is a significant impact on the subject's rights where, as here, there is an arrest, handcuffing, and detention at a police station for several hours. On the other hand, I agree also with the reasoning in R. v. Bryce, infra at para.59 to 60 that:

The impact of the police conduct on the appellant's Charter-protected interests is also a fact-specific determination. The impact is examined from the perspective of the accused. The degree of intrusiveness of the unconstitutional action of government agents ranges from impact which might be described as fleeting, transient or technical to profoundly intrusive: R. v. Grant, at para. 76; R. v. Harrison, at para. 28.

The more serious the incursion, the greater the case for exclusion in order to avoid the public perceiving individual Charter rights as merely second-class or unimportant constitutional protections - a state of affairs which would inevitably negatively affect the repute of the administration of justice.

190The roadside screening test itself is brief and minimally intrusive. The arrest follows the fail result. There is no issue in this case about the reliability of the approved screening device calibration or its operation. The fail result provides reasonable and probable grounds for the breath demand and the detention incumbent with that to take the requisite breath samples.

191With respect to the third branch of the Grant test, society's interest in the adjudication of the case on its merits favours admission of the breath tests. The evidence is reliable, non-invasive, and necessary to prove a serious offence: R. v. Bryce.

192Balancing all of the branches of the Grant test, it is necessary to determine if the overall reputation of the administration of justice, viewed in the long term, would be adversely affected by the admission of the evidence. I find that had there been a violation of the Accused's Charter rights on the circumstances of this case, I would not exclude the breath test results pursuant to section 24(2): see also R. v. Fildan, R. v. Krizanac, supra.

4.7: Evidence to the Contrary

193The Crown relied on the certificate of analysis as prima facie evidence of the breath readings at the time of testing at 6:16 a.m. and 6:38 a.m., and called expert evidence to relate back to the time of driving. The officer had arrived on scene at 4:21 a.m. The driving had occurred mere minutes before, as the police detachment was only five minutes away and the tow truck driver had called police dispatch very shortly after observing the driver of the disabled vehicle. It appears that the first sample may have been taken at the exact two hour mark from the time of driving or slightly before.

194Dr. Corbett posited on the most favourable defence hypothetical of two 20 ounce drinks of 5% alcohol beer consumed at certain times, the blood alcohol concentration of that person at 4:00 a.m. would be between zero and 77 or 82 milligrams of alcohol in 100 millilitres of blood depending on when the drinking commenced.

195In R. v. MacDonald; R. v. Gibson, the Supreme Court of Canada definitively addressed the admissibility of "straddle evidence". Expert evidence that the Accused's blood alcohol concentration may have been over or may have been within the legal limit at the material time, depending on the Accused's actual rates of absorption and elimination on the day in question, is not capable of rebutting the statutory presumption in this provision.

196As outlined previously in these reasons, the Court rejects Ms. Denduk's evidence of consumption on the evening of the offence. It does not raise a reasonable doubt, nor does the totality of evidence raise a reasonable doubt.

197In addition to previous points reflecting adversely on credibility, the Court notes the fact that Ms. Denduk paid her bill at the one establishment shortly before 2:00 a.m., and on Mr. Chase's evidence drove directly to his residence in the South Kingsway area, which took about one-half hour between the time they walked to the parked car to the time they arrived at his home is inconsistent with the overall timing of the night. Although both of them indicated they finished the conversation there, it seemed that this was not a lengthy time. Aside from stopping for gas, there is little explanation for why she was on the QEW highway in Mississauga around 4:20 a.m., or more than two hours after she left the bar. She told the officer she had "waited three hours". It is reasonable to infer that she erroneously felt the fact she had waited three hours after over indulging would absolve her of difficulties with the law regarding her blood alcohol concentration.

198There is no reliable evidence to cast doubt on the projected blood alcohol concentration at the time of driving of between 132 and 175 milligrams of alcohol in 100 millilitres of blood.

199I thank both counsel for their able submissions on the Carter defence and the applicability of the recent decision of R. v. St-Onge Lamoureux. In the circumstance of this case, those issues fall to be determined in another case where the evidence of the drinking pattern of the defendant is either believed or raises a reasonable doubt, and does not result in a straddle of the legal limit.

5: CONCLUSION

200The Court comes to the conclusion that any utterance made to Constable Jameson on the highway was not statutorily compelled, nor was it subjectively believed by the defendant to be so.

201The officer honestly held the view subjectively that he suspected that Ms. Denduk had alcohol in his body and had been operating a motor vehicle at the time he made the approved screening device demand to her. That belief was objectively justifiable.

202The Court concludes that the officer made a valid approved screening device demand, and that there is no infringement of Section 8 of the Charter.

203In the event that the Court is not correct in that the balance tips on these facts and that the Crown is deficient in establishing that the officer's suspicion was, although subjectively held, objectively supported, I have considered the application of section 24(2) of the Charter.

204Applying the balancing exercise mandated by section 24(2), I am mindful of the words of the Supreme Court of Canada in R. v. Harrison, that such a balancing exercise "is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute".

205There is no evidence that the officer deliberately set out to infringe the Applicant's Charter rights, or exercised egregious or abusive conduct. He was at all times professional and courteous to Ms. Denduk. The seriousness of the breach is attenuated in the circumstances of this case.

206The breath testing procedure itself was "minimally intrusive". See also R. v. Grant at paragraph 111 that: "...[W]here the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive."

207Societal interest favours admission of the evidence.

208Weighing all of the factors in a post-Grant analysis, the Charter violation here is not egregious, the intrusion to personal privacy, bodily integrity and dignity is less, the impact on the detainee is not severe, and societal interest in admitting reliable evidence such as breath testing is high.

209The breath tests taken by Constable Sousa on the Intoxilyzer will be admitted into evidence, and the evidence of the expert relating those readings to the time of driving is accepted.

210The Crown has proven beyond a reasonable doubt that Ms. Denduk's blood alcohol concentration at the time of driving exceeded 80 milligrams of alcohol in 100 millilitres of blood, and was likely double that. She will be found guilty as charged.

Released: May 30, 2013

ORIGINAL SIGNED BY JUSTICE N.S. KASTNER

Justice N. S. Kastner