ONTARIO COURT OF JUSTICE
Between:
HER MAJESTY THE QUEEN
— AND —
ANDREW FROST
Before: Justice B. Green
Heard on: January 11th and 12th, 2018
Reasons for Judgment released on: February 21st, 2018
Counsel:
- Ms. Herbert, counsel for the Crown
- Mr. Marchand, for the Defendant Mr. Frost
GREEN J.:
A. Introduction
1Mr. Frost is charged that he did, on the 15th day of December, 2016, in the City of Pickering have care and control of a motor vehicle while the concentration of alcohol in his blood exceeded the legal limit. At the outset of the trial, Counsel advised that he was not prepared to make any admissions on behalf of his client including the date, jurisdiction or identity of his client. He was not prepared to concede the voluntariness of his client's statements. In addition, Counsel filed a detailed application in advance of the trial alleging violations of his client's rights as protected by sections 7, 8, 9, 10(b) and 11(c) of the Charter. As a result, multiple arguments of significantly varying strengths and weaknesses were argued at the end of the trial.
2Considering that everything was in issue, to avoid further duplicity in the proceedings, Counsel and the Crown consented to have all matters being blended into one hearing. The Crown called three witnesses: a tow trucker driver, the responding Officer and the Intoxilyzer technician. Mr. Frost testified during the Charter voir dire, but did not testify during the trial. The defence did not call any additional evidence.
3I will not be addressing some of Counsel's arguments. If I do not address an issue that was raised during submissions, it is not that I have overlooked the argument. Rather, certain arguments simply don't warrant review because they were unfounded in the evidence. For example, Counsel argued that the Crown failed to establish his client's identity beyond a reasonable doubt because of the frailties of the witnesses' in-dock identification. If the Court does not grant the remedies sought on the Charter applications, there was irrefutable evidence aside from the courtroom identification that Mr. Frost was the person standing at the side of the road beside his car including, but not limited to, the Officer confirming his identification by reviewing his name and date of birth on his driver's licence at the roadside and a breath video that was filed as an exhibit. Everyone in the Courtroom could see that the person in the recording was Mr. Frost with a different hair style and facial hair. Counsel conflated the issues of the Crown's onus to prove that Mr. Frost had been driving within the prerequisite period of time or that he was in care and control of the vehicle when the Officer arrived on scene, with the issue of proving that the person standing before the Court is the person who is alleged to have committed the offence. These specious arguments were very unhelpful with keeping the trial focussed on the legitimately contentious issues.
4The main issues that will be addressed in these reasons are as follows:
i. The reliability of the Crown's witnesses' evidence and whether any deficiencies in their recollections or the alleged paucity of the Officer's notes should impact the findings of facts in this case;
ii. Whether the fact that the civilian witness testified that he did not notice any smell of alcohol from Mr. Frost should impact this Court's decision with respect to whether or not the responding Officer smelled alcohol as part of his grounds to make a demand. Notably, this argument was made notwithstanding the fact that Mr. Frost testified during the voir dire and admitted to recent consumption of an undetermined amount of alcohol;
iii. Whether Mr. Frost's statement(s) to the responding Officer were compelled statements and, if so, whether they ought to be excluded as a result;
iv. In addition to the statements, whether the Officer's observations of any physical indicia, like the smell of alcohol, that were made during or as a result of the compelled statement violated Mr. Frost's rights as protected by section 7, 10(b) and 11(c) of the Charter and ought to be excluded pursuant to section 24(1);
v. Whether the responding Officer turned his mind to the statutory prerequisites of believing that Mr. Frost had been operating a motor vehicle within the preceding three hours or whether he was in care or control of the motor vehicle prior to making the demand for a roadside breath sample and whether he subjectively believed that Mr. Frost had alcohol in his body at the time of the demand and whether his belief was objectively reasonable; and
vi. Whether the Crown has established that the demand for the roadside breath sample was made forthwith and whether the subsequent breath demand and breath samples that were taken at the station were as soon as practicable.
5The first few issues, as well as a number of other issues raised by Counsel, are very straight forward and will be summarily addressed while reviewing the evidence and the findings of fact. The legal analysis will be devoted to addressing the more complex issues. Most importantly, I will review whether the White/Soules line of cases should be extended to preclude the admission of any observations of physical indicia of impairment made by an Officer during a compelled statement. A summary of the evidence is necessary to contextualize each finding of fact and the legal conclusions that flow from those findings.
B. Evidence and Findings of Fact
6It is indisputable that, during the early morning hours of December 15th, 2016, there was a single vehicle accident in the far left lane of the east bound 401 express lanes in the City of Pickering near the White's Road exit. The vehicle sustained significant damage to the driver's side and was stopped on the shoulder of the highway. The driver's side of the vehicle was close to the centre medium or guard rail. Witnesses contacted 9-1-1 and the O.P.P. were dispatched to the scene. A tow truck driver, Mr. Sarangi, heard the dispatch over the radio and responded to the vicinity of the crash. At the scene of the crash, Mr. Frost was standing outside of his vehicle when the tow trucker driver arrived on scene.
i. Tow Truck Operator – Mr. Sarangi
7Mr. Sarangi explained that the nights preceding this event were very busy for him because of inclement weather and patches of black ice on the highway. As a result, he advised that he was a "little fuzzy" about some of the details like the exact time of the morning when he responded to the call for assistance with respect to this matter. He heard a call out on the police dispatch to respond to a single vehicle collision in the east bound express lanes near Liverpool Road in Pickering on the 401 express lanes. He was close by at Port Union Road, which was about six kilometers from the scene of the accident. He proceeded to the area and, within 10 minutes, he located the vehicle in the eastbound express lanes on the left hand side. He saw a male, who he identified in Court as Mr. Frost, standing in front of a silver SUV. There was only one vehicle that had crashed on the highway in this area, no one else was inside or around the vehicle and Mr. Sarangi didn't see anyone else in the area.
8Mr. Sarangi pulled up in front of the SUV and got out to check on the driver and the vehicle. He described extensive damage to the driver's side of the vehicle. Considering the damage that he witnessed to the tires and the suspension, he opined that the vehicle was not operable. He noted, however, that the keys were still in the ignition, the motor was running and the vehicle's lights were still on. The vehicle was on a bit of an angle with part of it next to the medium and about 1/8 of the back end was in the live lane of traffic. He stated a number of times that, although the vehicle was visible from a distance, if someone wasn't paying attention they could have run into this vehicle.
9Mr. Sarangi walked over to Mr. Frost and asked him if he was okay and what happened. Mr. Frost admitted that he was the driver and told him that he must have fallen asleep. Mr. Sarangi advised him that police, fire and ambulance were on their way to the scene. It was cold outside so Mr. Sarangi invited Mr. Frost to wait for the first responders to arrive in the passenger seat of his tow truck where it was warmer and safer. While they waited, they didn't have any conversation.
10Mr. Sarangi knew the police were not far behind him in terms of responding to the scene because he heard them "book" on the call over the radio. Within five or six minutes, an Officer arrived on scene. At first, Mr. Sarangi did not recall having a conversation with the Officer but within a question or two in chief, he recalled that the Officer asked him where the driver of the vehicle was and he directed the Officer to the passenger side of his truck. Mr. Sarangi was confused at points about whether he had this exchange with the Officer while he was inside or outside of his truck, nevertheless, he specifically recalled that he told the responding Officer that Mr. Frost was the driver of the vehicle. He was instructed by the Officer that he could hook up the SUV so he attended to his responsibilities.
11Counsel pointed out that Mr. Sarangi did not mention in his brief statement to the police that he spoke to the Officer at the scene. As a matter of common sense, he was asked by the police to relate his observations of the timing of events, the scene and Mr. Frost and not what he did or didn't say to the police. This omission is of no significance in these circumstances.
12Counsel elicited more evidence from Mr. Sarangi about his observations of his client. Mr. Sarangi presented as somewhat reluctant to share his observations of Mr. Frost. He was asked during cross-examination what he observed and he said that Mr. Frost was cold. Counsel asked if there was anything else and he said he seemed a little tired. Counsel pointed out that during his statement he was asked about any observations of impairment and he responded "we didn't talk much" and "no". Mr. Sarangi emphasized that they didn't talk much, their exchange was very "brisk" and Mr. Frost kept to himself. He agreed that the "no" in the statement was in relation to whether he observed any signs of impairment. Counsel specifically asked Mr. Sarangi whether he smelled any alcohol and he did not directly answer the question. He replied "I'm not looking for that, to be honest my concern is always the customer first". He also added that, if Mr. Frost was not talking while they were in his truck, he didn't know how he could smell alcohol on him.
13After the responding Officer formed his suspicion and after he arrested Mr. Frost, Mr. Sarangi gave his statement to a different Officer, PC Madden. At that time and to that Officer, Mr. Sarangi told PC Madden that he believed that the time of the accident was 1:00 a.m. He told the Court that he was mistaken about the time and was "quite behind" by a few hours. I accept that Mr. Sarangi had a difficult couple of days and he was mistaken in his statement. I also specifically find that this erroneous statement about the estimated time of the accident was made to Officer Madden after Mr. Frost was arrested and after the demands so this information could not have been related to Officer Edwards before he formed the grounds for the roadside breath sample or the breath demand.
ii. Responding Officer – PC Edwards
14PC Edwards presented as an affable and credible witness who tried to answer all questions to the best of his recollection. He made some notes of the unfolding of events and the notes were made in chronological order. Any of the time entries that were recorded in his hand written duty book corresponded to the time of the observation and the entry.
15On December 15th, at 3:32 a.m., PC Edwards was on patrol in the area and he also heard the dispatch over the radio to respond to a single motor vehicle collision on the 401 at the centre medium in the east bound express lanes on the shoulder at Whites Road. He had the impression from the call that the accident was fresh. In addition, he passed by that exact area as recently as 2:07 a.m. to respond to another call and he did not see any collision. Furthermore, he explained during cross-examination that he patrols the 401 regularly and he is aware that it is an area that is vigilantly monitored by various sources for accidents because it is very dangerous to have a disabled vehicle on the highway. Tow truck operators "roam" the highway constantly, MTO vehicles patrol the 401 and there are monitored cameras in that area on lampposts. For all of these reasons, I find that Cst. Edwards turned his mind to the fact that, while he did not witness the accident, it had occurred recently and definitely within less than three hours of the time that he arrived on scene and made the subsequent demand.
16PC Edwards responded to the area that he was dispatched to at 3:48 a.m. and saw a single vehicle next to the centre medium with extensive driver's side damage. I note that Cst. Edwards arrived 16 minutes after the call which is consistent with Mr. Sarangi's evidence that it took him 10 minutes to get there and the Officer was on scene within five or six minutes, confirming the Officer arrived 15 or 16 minutes after the dispatch. PC Edwards candidly admitted that he could not recall if the vehicle was still running. He did not know if it was operable but he noted that the wheel on the vehicle was distorted on an angle and the driver's side was damaged. He wasn't sure if any part of the vehicle was in the live lane of traffic, it was at least very close to it. Nevertheless, he advised that it was hazardous for a vehicle to be stopped in that area, in that position and it was an emergency situation as a result.
17PC Edwards advised that, when he arrived, he met up with the tow truck driver. He was not sure if Mr. Sarangi was inside his vehicle and stepped out to speak to him or he met him at the side of the road. He did not recall the exact nature of their conversation but he clearly recalled the most important point that he was inquiring about the driver and Mr. Sarangi directed him to the passenger seat of his vehicle. I acknowledge that PC Edwards was not prepared to guess about the exact words that were related to him by Mr. Sarangi but he was unequivocal that he was advised that Mr. Frost was the driver. In addition, the context of their conversation is important. This was a single motor vehicle collision and there was no one else in the area other than a responding tow truck operator, Mr. Sarangi, and Mr. Frost and PC Edwards spoke with Mr. Sarangi first. PC Edwards satisfied himself that the only other person at the scene was the driver before he approached Mr. Frost and confirmed the information he received from Mr. Sarangi by asking Mr. Frost if he was the driver.
18While this case has been framed as an issue about a subsequent compelled statement by Mr. Frost, there was more than sufficient information in all of these circumstances for PC Edwards to form the belief that Mr. Frost was the driver of the vehicle and that he had been operating it within the last three hours.
19PC Edwards approached the passenger door of the tow truck, he opened it and asked Mr. Frost if he was the driver. Mr. Frost admitted that he was driving to Officer Edwards. During this brief verbal exchange, PC Edwards detected an odour of an alcoholic beverage coming from his breath. Once he smelled the odour of alcohol coming from his breath, it changed the course of the investigation. He wanted to satisfy himself that the odour was actually coming from Mr. Frost's breath as opposed to the tow truck or his clothing. As a result, he asked Mr. Frost to accompany him to the police cruiser to investigate the possible consumption of alcohol further. Although he could not recall what they discussed after that single initial question, he did not recall asking any further questions about the accident. They obviously had some additional conversation since he recalled asking Mr. Frost to accompany him to the cruiser and he believed that he informed Mr. Frost what he was doing in terms of investigating the smell of alcohol and why he was doing it. Throughout PC Edwards' dealings with Mr. Frost that night, he described him as polite and cordial which was the way Mr. Frost presented on the breath video and in Court.
20Mr. Frost was placed in the backseat of the cruiser. At some point, PC Edwards went to Mr. Frost's vehicle and retrieved his cell phone and driver's licence from his centre console. When he returned to the cruiser, PC Edwards reviewed Mr. Frost's identification with his photograph and made note of his biographical information. The fact that the Officer retrieved Mr. Frost's phone/wallet/licence from the vehicle is further evidence that Mr. Frost was the driver and that he was the person who the Officer was speaking with at the side of the road.
21Once they were isolated within the cruiser, PC Edwards was satisfied that the odour of an alcoholic beverage was coming from Mr. Frost's breath and he noticed that his eyes were red. As a result, he formed the suspicion that Mr. Frost "had been consuming" alcohol. I note that counsel made submissions that Officer Edwards did not specifically articulate that he had a reasonable suspicion that Mr. Frost had alcohol in his body and that he operated or had care and control of a motor vehicle within the preceding three hours. There is ample case law that there is no "magical incantation" that an Officer needs to recite for the Court to be satisfied that the Officer possessed the requisite suspicion. Moreover, the requisite suspicion can be inferred from the evidence. Please see: R. v. Harris, [2007] O.J. No. 675 (Ont. S.C.), at para. 40 to 47 and R. v. Martin, [2005] O.J. No. 670 (Ont. S.C.), at paras. 12, 15 to 19.
22Counsel also made submissions that, considering the Officer's inability to relate the details of certain conversations or what he was doing throughout each minute of this emergent situation, his evidence was unreliable. I disagree. PC Edwards was a cautious and fair witness who confidently recited his clear recollections and he was not prepared to fill in the blanks for any gaps in his memory.
23Concomitantly, Counsel made submissions that because of PC Edward's alleged unreliability and because the tow truck driver did not say that he smelled alcohol during his interaction with Mr. Frost, the Court cannot have any confidence that PC Edwards smelled alcohol on his client's breath as part of his grounds. First, as noted, Mr. Sarangi said he was not speaking with Mr. Frost and he was not paying attention because he was concerned with the "customer first". Secondly, this submission flies in the face of Mr. Frost's evidence during the voir dire that he was recently drinking a significant amount of alcohol prior to the accident. Justice McLachlin observed in R. v. Jones, 2017 SCC 60 , [2017] S.C.J. No. 60 at para. 24 (S.C.C.): "I am mindful of the rule that evidence in the voir dire is not automatically admissible in the trial proper…. Still, an admission at the voir dire can restrict the permissible scope of defence evidence and submissions at trial." The professional limitations of Counsel's ability to make these submissions in relation to the unreliability of evidence about smelling alcohol should have been apparent given that this evidence was being reviewed within the totality of the evidence called during the voir dire about the Officer's grounds. Again, Mr. Frost's admitted during the voir dire that he was recently consuming an undetermined amount of alcohol, three or four beers or more. In the face of this admission, Counsel was "ethically barred" (language in paragraph 24) from arguing that the Officer's evidence that he smelled alcohol on his breath as part of his grounds was unreliable. I accept PC Edwards' evidence that he smelled the odour of an alcoholic beverage on Mr. Frost's breath.
24Officer Edwards formed the reasonable suspicion at 3:57 a.m. and immediately made the appropriate demand for a roadside breath sample into an approved instrument that was readily available. A total of nine minutes had passed from his arrival at the scene to the time of the demand. There was a lot that transpired in that brief period of time: PC Edwards had to park, get out of his car, check out the vehicle involved in the crash, speak to the tow truck operator, speak to Mr. Frost, accompany him and place him in the rear of his police vehicle, retrieve his wallet and cell phone and make further observations. He also made some notes between 3:48 and 3:57 a.m. because he advised that he made his notes chronologically and 3:57 a.m. was his next entry. More importantly, his suspicion did not crystalize until after he was seated in his cruiser with Mr. Frost and he assured himself that the smell of an alcoholic beverage was coming from Mr. Frost's breath. I find that the demand was made forthwith and the test administered in compliance with the section 254(2)(b) of the Criminal Code and there was no realistic opportunity to implement Mr. Frost's 10(b) rights before requiring the sample. Please see: R. v. Quansah, 2012 ONCA 123 , [2012] O.J. No. 779 (C.A.). As a result, the 10(b) application is dismissed.
25After reading the demand, PC Edwards satisfied himself that the ASD was working properly, that it was recently calibrated, performed a self-test and he demonstrated how to provide a sample. Mr. Frost supplied a breath sample at 4:00 a.m. and it registered a fail. As a result, PC Edwards formed reasonable grounds to believe that Mr. Frost had been operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood and advised Mr. Frost that he was under arrest. Although PC Edwards did not note the time, he retrieved a pre-printed card and read Mr. Frost his rights to counsel from the card because he does not know it by memory. He asked Mr. Frost if he understood and he said that he did. He asked him if he wished to call a lawyer now and he said that he wasn't really sure what to do and "I'm not going to bullshit you sir." At 4:08 a.m., he read Mr. Frost the standard cautions from the back of his duty book and at 4:10 a.m. he read the breath demand to which Mr. Frost replied that he understood. They left the scene at 4:13 a.m. to attend the closest police station that had an available Intoxilyzer technician.
26In addition to the first nine minutes, Counsel urged the Court to consider this further 13 minutes to decide whether the roadside sample was obtained "forthwith". To be clear, the roadside demand was made within nine minutes and the sample obtained within 12 minutes. As noted, I found this to be in compliance with the forthwith requirement. The subsequent 13 minutes is not part of that analysis. However, the Court must consider the period of time between 4:00 a.m. and 4:10 a.m. when the demand was made, which counsel argued was mostly unexplained, when deciding whether the breath demand and the samples at the station were taken as soon as practicable. Part of that period of time was explained by PC Edwards. It wasn't safe to conduct the test outside the cruiser on the 401. PC Edwards described how he was twisted up like a pretzel trying to administer the ASD from the driver's seat through the window to Mr. Frost. He would have had to rearrange himself, put the ASD aside, retrieve the cards that contain the requisite information, read the rights, cautions and demand and have a discussion with Mr. Frost about his understanding of all of this information. PC Edwards also had to record each of these events in his notes as they occurred to keep an accurate record of the timing. In addition, PC Ritchie testified that he received a radio call from PC Edwards inquiring about his availability as a breath technician at 4:07 a.m. so PC Edwards also spent some time making these inquiries. PC Madden arrived on scene as well and PC Edwards directed him to take a statement from Mr. Sarangi. While not every minute of that period of time is accounted for by PC Edwards and he wasn't prepared to guess exactly what he was doing minute to minute, I find that there were no significant unexplained gaps in time.
27After leaving the scene, they went directly to the nearest station and arrived at 4:23 a.m. The investigation proceeded swiftly from that point onwards with no further periods of delay. Mr. Frost was taken into the lodging area at the station. PC Edwards began filling out a control sheet and Mr. Frost expressed that he wished to speak with Duty Counsel. A message was left with Duty Counsel at 4:28 a.m. and Counsel responded at 4:31 a.m. Mr. Frost was placed in a room where he could consult with Counsel in private and he spoke with him between 4:33 a.m. and 4:40 a.m. Within two minutes, PC Edwards turned over custody of Mr. Frost to PC Ritchie to perform the breath tests. There were no periods of delay at the station.
28Between 4:40 and 4:44 a.m. (times shown on the video, not the actual times as it was off by two minutes) Officer Edwards related his grounds to Officer Ritchie and all of the steps that he took once Mr. Frost failed the roadside screening test. PC Ritchie asked for the location of the incident and for "the time of the collision" and PC Edwards replied 3:48 am which was actually his time of arrival at the scene. Counsel made a number of submissions about how Officer Edwards' evidence was unreliable because of this arguably erroneous response and that PC Ritchie was "not caring to be accurate" when addressing the time of the accident. PC Edwards should have clarified that it was his time of arrival not the time of the accident but I accept that this was an oversight during a brief conversation. I also reject any suggestion that PC Ritchie was careless. He asked for information and he received it. Regardless of whether PC Ritchie heard the earlier dispatch, he was not involved in the preliminary investigation, he was not responsible for responding to the call and he wasn't paying particular attention to the time of the call. PC Edwards related the grounds for the arrest and demand to PC Ritchie which included his belief that Mr. Frost was operating a motor vehicle that was involved in a recent single car collision, he had an odour of alcoholic beverage on his breath, his eyes were a bit red and he failed the roadside screening test. PC Ritchie satisfied himself that there were reasonable grounds for the breath demand and he read it to Mr. Frost a second time in the breath room.
29Counsel also strenuously argued that Officer Edwards was not a reliable witness because of the lapses in his memory. Undoubtedly, he did not have a perfect memory but none of the lapses in his memory related to any significant exchanges or events which will be evident when I review Mr. Frost's evidence. In addition to the lapses in PC Edwards' memory, Counsel submitted that the paucity of Officer Edwards' notes should cause the Court concern when assessing the credibility and/or reliability of his evidence.
30An Officer's notes are not expected to be an exact account of all of their observations. That is a completely unrealistic expectation. If that were the case, Officers would be spending very little time on their duties to protect our communities. Officer's notes and reports are made for two reasons: to fulfill their professional obligations to ensure that the Defendant knows the case to meet and to serve as a tool to refresh their memories. If an Officer testifies about a fact that is not recorded in their notes or reports that does not inexorably lead to the conclusion that that the event or exchange did not occur and it most certainly does not necessarily lead to a section 7 application or remedy as was suggested in the Application record filed in this matter. As Justice Hill noted in R. v. Gill, [2015] O.J. No. 6787 at para. 46 (Ont.S.C.J.):
I agree with the statement of Durno J. in R. v. Machado, 2010 ONSC 277 , [2010] O.J. No. 387 (S.C.J.), at paras. 121-122: While officers' notes are provided as part of disclosure, there is no law that I am aware of that an officer must record everything he or she did or saw in their notebook to comply with the Crown's disclosure obligation. While some ... have attempted to elevate the judgment in R. v. Zack, [1999] O.J. No. 5747 (O.C.J.) to a statement that if an event or observation is not in the notes, that it did not occur, that is not what the judgment says. Indeed, there are numerous authorities where events or observations that are not noted have been accepted: R. v. Thompson (2000), 151 C.C.C. (3d) 339 (Ont. C.A.); R. v. Bennett [2005] O.J. No. 4035 (S.C.J.).
31Obviously, a significant omission may impact the credibility and reliability of an Officer's testimony and the weight of that evidence depending on the circumstances. In R. v. Antoniak, [2007] O.J. No. 4816 (Ont.S.C.J.), Justice Ferguson sitting as an appeal Court aptly noted:
At para. 22: In deciding whether to accept an officer's testimony, the trier of fact may consider whether the officer recorded his or her observations. Certainly the absence of a note is a fair issue for cross-examination and may support an inference that the unrecorded event did not take place. However, the fact that there is no mention of an event in an officer's notebook does not necessitate a finding that it did not take place. For example, in R. v. Thompson (2000), 151 C.C.C. (3d) 339 (Ont. C.A.), the officer had no specific recollection of having checked for obstructions in the mouthpiece to ensure that the device was in proper working order and had no note to that effect. In asserting that she had in fact carried out the necessary checks, the officer relied on her ordinary practice. The trial judge accepted her evidence and stated as follows:
My view of her evidence is that matters transpired as she related them, that she simply followed her usual practice in connection with unwrapping and certification of the mouthpieces and that there was no need to make a note to that effect. Notes are only made to assist the recollection. I find that on this occasion she did not depart from her usual practice.
At para. 24: It should be remembered that an officer's notes are not evidence, but are merely a testimonial aid. Trial judges routinely tell officers on the witness stand that they may use their notes to refresh their memory, but that they must also have an independent recollection of the events. To elevate the absence of a notation to a mandatory finding that the event did not occur would eliminate the officer's independent recollection from the equation. The notes would become the evidence.
At para. 25: The significance of an omission in an officer's notebook, just like the significance of an inconsistency in a witness's testimony, must be determined by the trier of fact on a case-by-case basis.
32In the binding decision of R. v. Minhas, [2017] O.J. No. 1963 at paras. 24 to 26 (Ont. S.C.J.), Justice Goldstein recently addressed this type of argument again and found that deficiencies in an Officer's notes do not inevitably lead to adverse findings about the reliability of an Officer's account:
I also reject the Appellant's argument that the trial judge erred by failing to find that Constable Aguiar's reliability was tainted by poor note-taking. Constable Aguiar testified that he asked the Appellant whether he had had anything to drink recently when he pulled him over. He did not make a note of asking the Appellant that question. The Appellant argues that since it was an important point, Constable Aguiar's failure to note it shows a serious failure. Deficient note-taking can result in a finding that an officer's evidence is unreliable: R. v. Zack, [1999] O.J. No. 5747 (Ont.C.J.).
In the circumstances of this case, I disagree. That argument was made at trial. The trial judge found that Constable Aguiar was a reliable witness, thus rejecting the argument. He distinguished Zack, supra. He also found that Constable Aguiar's evidence was not contradicted by his notes or inconsistent with them. The supposed deficiencies were minor omissions that did not impact negatively on the officer's credibility. That conclusion was open to the trial judge on the evidence before him.
And further:
The significance of an omission in an officer's notebook, just like the significance of an inconsistency in a witness's testimony, must be determined by the trier of fact on a case-by-case basis.
33The brevity of Officer Edwards' notes in this case do not cause any concern with respect to the credibility of his evidence or the reliability of his recollections. He recorded all significant facts and he possessed an independent recollection of the sequence of events as they unfolded during this investigation. I found Officer Edwards to be a credible witness who reliably recounted all salient facts. He presented as a very honest witness who was careful not to guess in response to questions and I accept his evidence.
iii. Mr. Frost on the Voir Dire
34Mr. Frost also presented exceptionally well while testifying and I found him to be an impressive, forthright witness. He was candid and he did not hesitate to answer questions even if they reflected negatively on him.
35On December 14th, he was enjoying an evening out with friends in Toronto. Over the course of the evening, he attended a bar and a friend's place and he was consuming alcohol. He believed that he drank three or four beers, but he indicated that he could not honestly recall how much he had to drink that night or when he drank his last drink. He agreed that he could have had more alcoholic drinks. He was not keeping track of what he was drinking or the time. After he left his friend's home, he was heading home when he had an accident on the 401 where Mr. Sarangi and PC Edwards ultimately found him.
36Mr. Frost advised that he did not have a watch on and the clock in his car was broken so he didn't know what time it was when the accident occurred. He did recall that he could not get out the driver's door so he crawled across his car and got out the passenger side. He was standing outside his car when he was surprised by the arrival of the tow truck operator. He felt like Mr. Sarangi's arrival was almost instantaneously after he exited his car. The tow truck driver asked him if he was the driver and he said "yes". Mr. Sarangi then invited him to sit in his truck because it was cold and for his safety. He told him that police, fire and ambulance were on the way. Although Mr. Frost had a cell phone in his vehicle, he hadn't had a chance to try and find it before the tow truck arrived and there was no point calling when he was just told that first responders were already on their way.
37Mr. Frost could not recall how long it was after he was sitting in the tow truck that the Officer arrived on scene and he wasn't sure whether or not the Officer spoke to the tow truck operator. The Officer attended where he was seated and asked him if he was the driver and he replied "yes". He couldn't recall whether the Officer asked any other questions and he certainly didn't relate that he reported anything else about the accident other than admitting that he was the driver.
38Mr. Frost is a mechanic by trade and he has been in accidents previously. He explained that he knew that he had to stay at the scene to speak with the police because of the extensive damage to his car. It was so damaged that it was inoperable after the accident. He has also known since he was 16 years old and through life experience about a driver's obligations pursuant to the Highway Traffic Act to provide information to any responding Officer about an accident. He explained that, when he was involved in a less serious accident in the past, he attended the collision reporting centre to report it to the police. He presented as an individual who sincerely believed that he had a legal obligation to cooperate with the accident investigation. Mr. Frost's evidence was so persuasive that the Crown conceded that Mr. Frost felt compelled to answer the Officer's initial query.
39I have reviewed the conflicting decisions of R. v. Parol, 2011 ONCJ 292 , [2011] O.J. No. 2641 (Ont.C.J.), and R. v. Treliving, [2013] O.J. No. 2894 (Ont.S.C.J.), about whether this type of admission can be considered to be a compelled "report" if a person simply responds to a police officer's query about who was driving when an officer is just trying to orient her/himself to the scene. I do not have to address this issue in this case because I have found that the responding Officer already formed the grounds to believe that Mr. Frost was the driver from the circumstances at the scene and his conversation with Mr. Sarangi prior to Mr. Frost's admission.
40Counsel also argued that the smell of alcohol that the Officer detected while conversing with Mr. Frost at the tow truck would not have occurred but for this compelled conversation so the smell of alcohol ought to be excluded from this Court's consideration with respect to the grounds for the reasonable suspicion. I disagree. I note that Mr. Frost acknowledged that he also felt that he was morally obliged to answer the Officer's inquiries. In addition, they obviously had some other conversations between that first query and the demand for the roadside sample. Neither one of them could recall the exact nature of the conversation, however Officer Edwards believed that he explained to Frost what he doing at the roadside. They would have discussed moving to the cruiser, why he was being taken to the cruiser and retrieving his personal items from his vehicle. The investigation had clearly shifted from an accident investigation to an impaired driving investigation. Mr. Frost did not testify that he felt compelled to participate in any of those additional exchanges or any other conversation with PC Edwards while he was in the cruiser. Regardless of any initially expressed feelings of compulsion, there is no evidence that any of the other exchanges had anything to do with reporting an accident. It is the Applicant's burden to establish that the continued exchanges were part and parcel of that initial feeling of compulsion. Since he could not even recall what, if anything they discussed, that burden has not been met. Accordingly, I do not accept that the Officer would not have made this observation of a smell of alcohol but/for this initial conversation in the tow truck. Rather, it was ultimately discoverable before the demand was made independently of Mr. Frost's brief statement identifying himself as the driver.
41Finally, I note that Mr. Frost was not asked any questions about why he gave a statement at the station to the Intoxilyzer technician. Once again, it would have been evident to Mr. Frost that the nature of the investigation had changed from reporting an accident to an impaired driving investigation. Mr. Frost was made aware of why he was being arrested, he was cautioned on more than one occasion that he did not have to speak with the police and he consulted with counsel for a significant period of time before he was turned over to Cst. Ritchie. In addition to cautioning him, Cst. Ritchie specifically told Mr. Frost that he didn't have to answer any of his questions, his only obligation was to provide a breath sample. There is absolutely no evidence from which the Court can infer that Mr. Frost's sincere initial feeling of compulsion to provide an accident report while he was in the tow truck continued at the station. Quite the contrary, he was specifically told that he was not obligated to speak to the police. I find that the statements at the station were not made as a result of any compulsion. Finally, Counsel conceded at the end of the trial that there were no issues with the voluntariness of his client's statements to PC Ritchie. Unless the Charter application is successful, Mr. Frost's statements to PC Ritchie will be admitted for the truth of the contents.
iv. Intoxilyzer Technician – PC Ritchie
42There is no need to review PC Ritchie's evidence in significant detail since the main thrust of the argument in this case are the Charter issues. Nevertheless, considering there were no admissions, I must address all factual/legal issues with respect to the time of driving or the time of care and control, the timing of the breath samples and whether the samples were properly obtained.
43I find that PC Ritchie is a qualified technician, he was operating an approved instrument, he followed his training when he set up and operated the instrument and he satisfied himself that it was functioning properly. He conducted the breath tests shortly after he received custody of Mr. Frost and inputted his information into the instrument and there were no unexplained delays prior to the first test. Mr. Frost provided two suitable samples of his breath directly into the approved instrument and those samples were obtained more than 15 minutes apart. The first sample was obtained at 4:52 a.m. There was a short delay before the second sample was taken because Mr. Frost had to go to the washroom just as the instrument was ready to take the second sample at 5:09 a.m. As a result, the second sample was taken at 5:15 a.m. Both samples registered truncated readings of 170 mg of alcohol in 100 ml of blood. The certificate of analysis and the test records were filed as Exhibits during the proceedings as additional evidence of the readings and to demonstrate the proper functioning of the instrument. PC Ritchie explained that the Intoxilyzer passed all of the internal diagnostics, calibration checks and air blanks.
44Neither Counsel nor the Crown addressed the Court, to any significant extent, on an important issue during their submissions. In order to have the benefit of the presumption of identity, the Crown has the burden of proving beyond a reasonable doubt that the first sample was obtained within two hours of the time of driving or care and control of the vehicle. This oversight highlights the inherent risk of this type of unfocussed trial where Counsel advises that virtually everything is in issue even in the face of overwhelming evidence on a point of fact. Counsel is undoubtedly entitled to put the Crown to its burden of proof on every issue, however, reasonable admissions advance their client's interests. Counsel and the Court may miss critical issues amidst a number of unfounded arguments.
45While the Crown introduced evidence that Mr. Frost's vehicle presented a significant risk to the safety of other users of the highway because of where it was stopped on the 401, there were no submissions about whether Mr. Frost had de facto care and control as a result. As the Crown noted however, operation is an included offence in care and control. The Crown can also prove Mr. Frost's guilt beyond a reasonable doubt by establishing that he was driving within the preceding two hours of the first breath test.
46Mr. Sarangi responded to the dispatch for an accident at that location within 10 minutes and PC Edwards was on scene within less than five to six minutes after him. PC Edwards testified that the dispatch occurred at 3:32 and he arrived at 3:48 a.m. At the very latest, Mr. Sarangi was on scene at 3:42 a.m. When Mr. Sarangi arrived, I accept his evidence that Mr. Frost's vehicle was still running, with the lights on and the keys were in the ignition. I also accept that Mr. Frost admitted to him that he was driving and he thought that he must have fallen asleep while driving. This is strong circumstantial evidence that the accident occurred shortly before the dispatch call at 3:32 a.m., 15 to 16 minutes before PC Edwards arrived. There is additional compelling evidence of the time of driving. Mr. Frost admitted to PC Ritchie that he was driving, there was no one else in his vehicle and he was involved in a collision. He could not recall what time the accident happened, but he believed that PC Edwards arrived on scene "give or take" within 15 minutes which coincides with both Mr. Sarangi's and PC Edwards evidence and the circumstantial evidence that his car was still running. The Crown has presented proof beyond a reasonable doubt that Mr. Edwards was driving his vehicle within minutes preceding the dispatch call at 3:32 a.m. The first breath test was taken at 4:52 a.m. which is well within the two hours required for the Crown to retain the benefit of the presumption of identity.
47PC Ritchie made observations that corroborated PC Edwards' evidence. He noted an odour of alcoholic beverage emanating from Mr. Frost's breath and his eyes were red. PC Ritchie also noticed that Mr. Frost's symptoms of impairment seemed to increase as he interacted with him. Mr. Frost began to slur his speech and he was unsteady on his feet when he took him out of the breath room to use the washroom. I also noticed that Mr. Frost began to slur his words during the recording.
48In the absence of a Charter breach or any other failure to comply with the statutory prerequisites to making the demands and obtaining the sample, the Crown has proven the essential elements of the offence. The two remaining issues to be addressed are whether the smell of alcohol should be excluded from the Officer's grounds for the demand which could lead to a finding of a section 8 breach and the exclusion of all subsequently obtained evidence and/or whether the breath demand was made and the breath samples were taken as soon as practicable.
C. Legal Analysis
49As noted at the outset of these reasons, I have summarily addressed a number of the legal issues that were raised during submissions while reviewing the evidence. The remaining issues require a more in depth review of the law.
i. Should the Officer's Observations of a Smell of Alcohol be Excluded from the Grounds to Make the Roadside Breath Demand?
50To be clear, I am not relying on Mr. Frost's statement to Officer Edwards as part of his subjective grounds to form a reasonable suspicion. I have also rejected Counsel's submission that the Officer would not have smelled alcohol on his client's breath but/for the statement. Finally, even if the smell was initially detected by the Officer during the verbal exchange in the tow truck, it was ultimately discoverable during the conversation that followed that initial exchange. Please see for example: R. v. Pasian, 2017 ONCA 451 , [2017] O.J. No. 2858 (Ont.C.A.). As a result, I do not need to consider whether the simple admission in this case was a "report" pursuant to the H.T.A. or whether the Supreme Court of Canada's decision in Patterson, 2017 SCC 15 , [2017] S.C.J. No. 15, has changed the legal landscape with respect to the admissibility of roadside statements, if they are statutorily compelled, for the sole purpose of determining an Officer's subjective mental state.
51It is nevertheless important to address Counsel's argument that the Court is precluded from considering the Officer's observations of physical indicia if they were made during or after a compelled statement. Counsel argued that the White and Soules line of cases should be interpreted as precluding the admission of any observations of physical indicia that an Officer makes during a compelled conversation with a suspect. For the reasons that follow, I completely disagree.
52First, Counsel relied on one particular word at paragraph 70 in the White decision to infer that the decision ought to be interpreted as applying to all evidence garnered during a compelled conversation with an Officer. Counsel emphasized that the Supreme Court referenced any "information transmitted in the compelled statement." This sentence must be read in context. The Court was reviewing whether the type of information related or the content of the compelled statement ought to change the analysis:
Southin J.A. found that, although s. 7 is engaged by the requirement to report an accident under s. 61 of the Motor Vehicle Act, it is not engaged to the extent that s. 61 requires a driver to provide his or her name and address and to acknowledge that he or she was driving at a particular place and time. Southin J.A. stated that a proper balance between the rights of the individual driver and the interest of society in curbing motor vehicle offences could not be achieved unless this information could be used in order to prosecute. She acknowledged that the use of such information in the respondent's case might be sufficient to permit her conviction under s. 252(1)(a) of the Code. The majority of the Court of Appeal did not draw a distinction between types of information acquired under s. 61 that might be admissible in criminal proceedings.
In my view, and with respect, the distinction drawn by Southin J.A. is inappropriate. The protection afforded by the principle against self-incrimination does not vary based upon the relative importance of the self-incriminatory information sought to be used. If s. 7 is engaged by the circumstances surrounding the admission into evidence of a compelled statement, the concern with self-incrimination applies in relation to all of the information transmitted in the compelled statement. Section 7 is violated and that is the end of the analysis, subject to issues relating to s. 24(1) of the Charter. [Emphasis mine]
53The Court was clearly engaged in an analysis of whether the principle against self-incrimination changes based on the content of information communicated during a compelled statement. "Transmitted" in this context referenced the content of the communication, not other forms of evidence like physical indicia.
54I note as well that I made findings of fact that the smell of alcohol was also detected after that initial conversation and before the administration of the roadside screening device during exchanges unrelated to the compulsion to provide an accident report. In a brief endorsement in R. v. Puvtoski, 2016 ONCA 828 , [2016] O.J. No. 6379, the Ontario Court of Appeal summarily dismissed this type of argument in a case with similar facts:
The main issue on appeal relates to police observations (alcohol smell) of the appellant after a motor vehicle accident and the appellant's statements to the police at the accident scene. The appellant contends that his statements were statutorily compelled in violation of s. 7 of the Charter. Section 199 of the Highway Traffic Act, R.S.O. 1990, c. H. 8, imposes a duty on police to gather information about an accident for a report. The appellant's statements to the police at the accident scene helped establish grounds for the police to make an approved screening device (ASD) demand.
The trial judge admitted evidence of the police officer's observations about the smell of alcohol on the appellant's breath. He said, at para. 87:
As well, I am of the view that the officer's detection of the odour of alcohol on the way to the cruiser, prior to the eliciting of material information, reflects general observations an officer might make of the driver while carrying out other authorized duties and which are admissible [Cases and citations omitted].
The summary conviction appeal judge dismissed the appeal. She said, at para. 6:
First, the trial judge did not err when he found that the police officer's detection of the smell of alcohol from the appellant did not breach his s. 7 Charter rights against self-incrimination. The evidence of the odour did not result from any compulsion or direct participation designed to provide evidence and it did not stem from the appellant being directly compelled to participate in making the H.T.A. report [Cases and citations omitted].
The appellant seeks leave to appeal the summary conviction appeal judge's decision.
The test for granting leave to appeal is whether a proposed appeal on a question of law (1) is of significance to the administration of justice beyond the case, and (2) whether there is a clear error of law: see R. v. R.(R.), 2008 ONCA 497.
In our view, neither component of the test is met on this appeal. Both courts below were aware of and applied the leading case, R. v. White, [1999] 2 S.C.R. 417. The appellant's proposed appeal related to his statements at the accident scene. However, the appeal does not need to turn on this ground. As both courts below found, the smell of alcohol alone justified the ASD demand and the subsequent administration of the breathalyzer test. As well, the police officer on site had established the identity of the driver of the automobile without reliance on the appellant's statements. On this issue, the two court decisions were clearly correct. They were also focused on a narrow factual issue and are, therefore, not significant for the administration of justice beyond the case.
55Considering my findings of fact, this decision appears to be dispositive of this issue. Arguably, however, the lower Court's reference in Puvtoski to the fact that the observations were made prior to the material admission is a distinguishing fact. As noted, while PC Edwards smelled alcohol during his initial verbal exchange with Mr. Frost, he subsequently isolated the smell while they were sitting in his cruiser. Mr. Frost has not established that they were engaged in any compelled conversation about the accident at that time or that their conversation continued because of his initial feelings of compulsion. Nevertheless, I will consider whether or not the fact that the Officer smelled alcohol during a compelled statement and shortly afterwards ought to result in its exclusion.
56Regardless of when the Officer smelled alcohol on Mr. Frost's breath, this observation of physical indicia does not engage the same considerations from the White and Soules line of decisions. Both of these cases were concerned with excluding "statements" that were made under compulsion because of the prospect of unreliable confessions and the incumbent possibility of state abusive conduct and that an accident report involves the provision of a personal narrative. None of these considerations apply to observations of the physical indicia of impairment.
57Justice Iacobucci clearly articulated in White at para 37 that the "the principal s. 7 issue in this appeal is whether the admission into evidence in a criminal trial of statements made under compulsion of s. 61 of the Motor Vehicle Act would violate the principle against self-incrimination." Furthermore, he cautioned that (at paragraph 45):
The residual protections provided by the principle against self-incrimination as contained in s. 7 are specific, and contextually-sensitive. This point was made in Jones, supra, at p. 257, per Lamer C.J., and in S. (R.J.), supra, at paras. 96-100, per Iacobucci J., where it was explained that the parameters of the right to liberty can be affected by the context in which the right is asserted. The principle against self-incrimination demands different things at different times, with the task in every case being to determine exactly what the principle demands, if anything, within the particular context at issue.
58It should also be noted that the Courts in both White and Soules, were not engaged in an analysis of the constitutional validity of statutorily compelled statements other than an off-hand obiter remark in Soules and paragraph 56 that:
Given that the issue of justification under s. 1 was not raised below and has only superficially been raised on this appeal, I would give no consideration to this argument. I would, however, note that White holds that the admission of Mr. Soules' statement would render the trial unfair; it is therefore unlikely to be seen as a s. 1 reasonable limit of a Charter right. [Emphasis mine]
59In contrast, in the seminal decisions of R. v. Milne, [1996] O.J. No. 1728 (Ont. C.A.), and R. v. Elias and Orbanski, 2005 SCC 37 , [2005] S.C.J. No. 37, the Courts were engaged in an analysis of the constitutional validity of compelled participation in roadside screening measures and the admissibility of an Officer's observations of the physical indicia of impairment during this process. The admissibility of this evidence was found to be a reasonable limit on a detainee's rights as protected by the Charter.
60Counsel dismissively argued that the Supreme Court of Canada's recent decision of R. v. Paterson, 2017 SCC 15 , [2017] S.C.J. No. 15, has no application to this case. I disagree. The Supreme Court of Canada was engaged in an analysis of whether evidence of a potentially involuntary statement can be relied upon during a voir dire with respect to an Officer's subjective state of mind and whether an Officer's belief is objectively reasonable. The Court ruled at paragraph 18 that "the confessions rule should not apply to statements tendered in the context of a voir dire under the Charter". It is inconceivable that the Supreme Court of Canada would rule that a potentially involuntary confession at the roadside would be admissible during a voir dire to determine an Officer's subjective grounds but the reliable indicia of impairment observed during an exchange with an Officer, whether that exchange was compelled or involuntary, would be a section 7 violation and ought to be excluded. In a footnote, the Supreme Court wrote "without commenting on the correctness of Soules, I observe that Orbanski's direction that the police may rely upon roadside statements for the purposes I have described was categorical." The judgments in Milne and Orbanski are equally categorical about the admission of observations of physical indicia of impairment and I am bound to follow them.
61In Milne, Justice Moldaver was unequivocal in his ruling about this issue at paras. 39 and 40:
For these reasons, I have concluded that the provisions allowing for a breach of the motorist's s. 10(b) rights at the roadside would not be saved under s. 1 if the evidence resulting from compelled participation in the tests -- designed to firm up mere suspicion of impairment or a blood-alcohol level exceeding 80 mg -- could be used for trial purposes to incriminate and convict a motorist of either offence.
I wish to make it clear that this conclusion applies only to evidence obtained from compelled direct participation by the motorist in roadside tests authorized by s. 48(1) of the HTA, specifically designed to determine impairment or a blood-alcohol level exceeding 80 mg. I am not referring to observations the officer might make of the driver while carrying out other authorized duties. Thus, by way of example, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, blood-shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment. Counsel for the appellant took no issue with this differentiation. Indeed, he conceded in argument that such evidence, obtained indirectly through observation, would be admissible at trial. [Emphasis mine]
62Similarly, in R. v. Elias and Orbanzki, 2005 SCC 37 , [2005] S.C.J. No. 37, the Supreme Court of Canada engaged in a section 1 analysis of the constitutionality of the limitations on a detainee's section 10(b) rights to counsel during roadside sobriety screening. The Court held the limitation on section 10(b) rights during the compelled participation in roadside breath testing was justified under section 1 of the Charter because, in part, the evidence could only be used as an investigative tool to confirm or reject the officer's suspicion that a driver is impaired. The Court once again repeated that the limitation on the admission of evidence gathered at the roadside did not extend to an Officer's observations of physical indicia of impairment at para 58:
As noted by Moldaver J.A. in Milne, at p. 131, it is not difficult to find proportionality in so far as the liberty interest of the detained motorist is concerned because roadside screening techniques "take but a little time and cause only minor inconvenience to the motorist". He stated, however, that "the same cannot be said about the 'risk of incrimination' component if, in fact, the motorist can be compelled to create self-incriminating evidence that can later be used at trial" (p. 131). I agree with this conclusion. As stated in Milne, this limitation applies only to evidence obtained from the compelled direct participation by the motorist in roadside tests and, in our case, police questioning about alcohol consumption. Moldaver J.A. explained further, at p. 132:
I am not referring to observations the officer might make of the driver while carrying out other authorized duties. Thus, by way of example, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, blood-shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment.
63A motorist engaged in the provision of a roadside breath sample is undoubtedly compelled to do so or else s/he faces criminal charges for refusing to provide a roadside breath sample. Even in the coercive circumstances of that compelled participation, the Supreme Court found that the observations of signs of impairment would be admissible both during a voir dire and as incriminating evidence during the trial proper to prove impairment.
64More recently and directly on point, in R. v. Quenneville, 2009 ONCA 325 , [2009] O.J. No. 1549 (Ont.C.A.), the Ontario Court of Appeal succinctly stated:
The line drawn in R. v. Milne (1996), 107 C.C.C. (3d) 118 (Ont. C.A.) as to the limitation on the use of evidence acquired at the roadside, is evidence obtained through the "compelled direct participation" in sobriety trials. The observations made as the respondent exited his vehicle, even in response to a direction from the officer, is not compelled direct participation in the roadside tests so as to attract the limitation on use. See R. v. Milne at para. 40 as approved in R. v. Orbanski, 2005 SCC 37 , [2005] 2 S.C.R. 3 at para. 58.
65This type of reliable evidence is very relevant to considerations of an Officer's subjective mental state and whether his or her belief was objectively reasonable. In Paterson, at para. 28, the Supreme Court of Canada cautioned that:
…applying the confessions rule to statements adduced in a Charter voir dire would lead to undesirable consequences, inhibiting legitimate and necessary police investigative powers. For example, and as the intervener, the Attorney General of Ontario observed, requiring police to prove the voluntariness of an accused's statement would contradict this Court's direction in R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, that police may rely, for the limited purpose of forming grounds for an approved screening device demand, upon answers given roadside by drivers in response to questions about alcohol consumption. To be clear, such evidence entails, as the Court said"compelled direct participation" by the driver (para. 58 (emphasis added) which would be inadmissible at trial to prove impairment. The limited purpose of justifying further investigation, however, coupled with the absence of concern for trial fairness and reliability, supports its admissibility at a Charter voir dire considering the constitutionality of the investigation itself and, in particular, of the reasonableness of the officer's grounds for demanding a breath sample.
66Excluding reliable evidence of the physical indicia of impairment from consideration during a voir dire because the observations were initially made during compelled participation in a verbal exchange would also "lead to undesirable consequences, inhibiting legitimate and necessary police investigative powers". Moreover, it would contradict a long line of binding legal authority that is "categorical".
67Finally, I have reviewed the trial decisions supplied by Counsel of R. v. Wenham, 2013 ONSC 7431 , [2013] O.J. No. 5535 (Ont. S.C.J.), and the subsequent decision in the same trial of R. v. Wenham, [2014] O.J. No. 746 (Ont.S.C.J.) I note that the Court did not exclude the evidence of the physical indicia of impairment in the first decision because the observations were not made solely as a result of the compelled statements. Nevertheless, the Court went on in the subsequent ruling to find that:
21 In my opinion, the same rationale that underlay the decision to exclude the statements in White requires the exclusion of the observations made by Const. Pauls. To admit the observations of Const. Pauls at trial as evidence of Mr. Wenham's guilt would be to allow the Crown to use compelled evidence indirectly to prove his guilt; something that the decisions in White and R. v. Soules, 2011 ONCA 429 say ought not to be permitted.
22 Alternatively, I would exclude the evidence on the basis of my power to do so at common law: White, at para. 89. In my opinion, to admit the observation evidence would be unfair because the opportunity to obtain it arose solely through the use of Mr. Wenham's compelled statements.
68The learned Jurist in R. v. Wenhan, supra, did not have the benefit of the guiding legal principles in the more recent Supreme Court of Canada decision in R. v. Paterson, supra nor did the Court address the Ontario Court of Appeal's decision in R. v. Quenneville, supra. I do not agree that the White and Soules decisions can or should be relied on to preclude the admission of observations of physical indicia of impairment nor will the admission of this evidence render the trial unfair. As a result, I respectfully decline to follow both of the Wenhan decisions. I am bound to follow the Appellate authorities directly on point of Milne, Orbanski and Quenneville which permit the admission of this type of reliable evidence both during the voir dire and the trial proper.
69Whether PC Edwards smelled alcohol on Mr. Frost's breath before, during or after the compelled statement, it is admissible evidence to consider when assessing the Officer's reasonable suspicion about whether Mr. Frost had alcohol in his body and had been operating a motor vehicle within the preceding three hours. The Applicant has not met his onus of establishing violations of Mr. Frost's section 7, 10(b) and 11(c) Charter protected rights. This part of the Application is dismissed and the odour of alcohol on Mr. Frost's breath is admitted both for the purposes of the voir dire and as evidence during the trial proper.
70I have considered the following factors to decide whether the Officer subjectively believed he had the requisite grounds to make the demand for the roadside breath sample and whether his belief was objectively reasonable:
PC Edwards received a dispatch to respond to a 9-1-1 call about, what he believed to be, a recent single motor vehicle collision in the express lanes on the 401;
He arrived on scene within 16 minutes of the dispatch and spoke to a tow truck driver, Mr. Sarangi. Mr. Sarangi told him that Mr. Frost was the driver of the vehicle. There were no other disabled vehicles in the area, there were no other people present except Mr. Frost and Mr. Sarangi and the accident occurred on a controlled access highway that is vigilantly monitored for accidents because of the hazards that disabled vehicles pose to other users of the highway;
PC Edwards turned his mind to the timing of the driving both because of his familiarity with the frequent monitoring of that location by various authorities as well as tow truck operators and the fact that he had driven by the same area less than an hour and a half earlier and that vehicle was not there; and
After he was directed to Mr. Frost, he initially smelled alcohol on him while he was in the tow truck and then PC Edwards took the additional investigative step of isolating Mr. Frost in the back seat of his cruiser to assure himself that the smell was coming from his breath. It was not safe for him to engage in this additional investigative step outside of his cruiser considering the location. He also noticed Mr. Frost's eyes were red.
71Reasonable suspicion is a low threshold of possibility as opposed to probability but it must still be grounded in objectively discernible facts. The suspicion must also be assessed in the totality of the circumstances. Please see: R. v. Chehil, 2013 SCC 49 , [2013] S.C.J. No. 49, and R. v. MacKenzie, 2013 SCC 50 , [2013] S.C.J. No. 50 (S.C.C.) The smell of alcohol on Mr. Frost's breath is an important if not determinative factor in this case. In R. v. Goudreault, [2013] O.J. No. 953 (Ont. S.C.J.), the Court found that:
11 In my view reasonable suspicion requires only that the belief be one of a number of possible conclusions based on the supporting facts. The amount of alcohol, how it was consumed or the degree of smell on the individual's breath are not required in developing a reasonable suspicion. (See R. v. Chipchar 2009 ABQB 562 , [2009] A.J. No. 1058)
12 In this case while it is true the alcohol was only detected when the respondent was in the cruiser, that was the first time the respondent was alone with the officer in a confined space. Prior to that he was in a vehicle with a number of other individuals with the window open. When the officer detected the odour in the cruiser that was sufficient both subjectively and objectively to establish reasonable suspicion. The matter was well put by the Ontario Court of Appeal in R. v. Lindsay, (1999), 134 C.C.C. (3d) 159 where at paragraph two the court stated:
The trial judge accepted the officer's evidence that she smelled alcohol on the respondent's breath. This observation led her to suspect that the respondent had alcohol in his body and she made the ALERT demand accordingly. An officer may make an ALERT demand where she reasonably suspects that a person who is operating a motor vehicle has alcohol in his or her body (s. 254(2) of the Criminal Code). There need only be a reasonable suspicion and that reasonable suspicion need only relate to the existence of alcohol in the body. The officer does not have to believe that the accused has committed any crime. We see no need to put a gloss on the words of s. 254(2). The fact that there may be an explanation for the smell of alcohol does not take away from the fact that there exists a reasonable suspicion within the meaning of the section
72In light of all of these factors, I am satisfied that PC Edwards had the prerequisite reasonable suspicion and the result of the approved screening device is admissible evidence during the voir dire to determine if PC Edwards had reasonable grounds to arrest Mr. Frost. The Officer believed that he was operating a properly functioning approved screening device. Mr. Frost's failure of the roadside screening test, coupled with all of the factors outlined above and the single vehicle collision, provide ample reasonable grounds for the Officer to believe, both subjectively and objectively, that Mr. Frost should be arrested for being in care and control of a motor vehicle with more than 80 mg of alcohol in 100 ml of blood and for making a demand for a breath sample. As a result, I find the Crown has established that Mr. Frost's section 8 Charter protected rights were not violated and this part of the Application is also dismissed.
ii. Was the Breath Demand Made and the Breath Samples Obtained as Soon as Practicable?
73While I have found that there was no section 8 breach, the Crown is still obliged to prove beyond a reasonable doubt that the demand for the breath sample was made as soon as practicable and the breath samples were obtained as soon as practicable. These statutory requirements are a reflection of the constitutional integrity of the provisions to ensure that the liberty interests of detainees' are only infringed for brief periods of time. Please see: R. v. Zardo, [2017] O.J. No. 1114 (Ont. C.J.) In addition, the Crown can only rely on the presumption of identity if they are able to prove the prerequisites set out in section 258(1)(c)(ii) of the Criminal Code. In part, this section requires the Crown to prove that the samples were taken as soon as practicable after the time when the offence was alleged to have been committed and that the first breath sample was taken not later than two hours after that time with an interval of at least 15 minutes between each test. Counsel submitted that the breath demand and the breath readings were not obtained as soon as practicable.
74R. v. Vanderbruggen, [2006] O.J. No. 1138 at para. 8 (Ont. C.A.), Justice Rosenberg explained that:
Section 258(1)(c)(ii) of the Criminal Code is part of the scheme to ease proof of the concentration of alcohol in the accused's blood for inter alia proving the "over 80" offence in s. 253(b). Section 258(1)(c)(ii) provides that where the breath samples were taken "as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken" then, provided certain other conditions are fulfilled, the prosecution may rely upon the presumption of identity. This presumption simply deems the results of the breath tests to be proof of the accused's blood alcohol level at the time of the offence in the absence of evidence to the contrary. Thus, in this case, although the first test was not taken until more than one hour after the appellant drove the vehicle, that test is deemed to show what his blood alcohol level was at that time of the driving.
75Justice Rosenberg went on to define the meaning of as soon as practicable:
That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances…. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably…. [Emphasis mine]
76Finally, in order to make this determination, his Honour also explained in Vanderbruggen, supra, at para. 13 that:
In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. [Emphasis mine]
77The total period of delay, between the moment PC Edwards arrived at the scene of the accident to the provision of the first sample, was a total of one hour and four minutes. There was a very short period of unexplained delay at the roadside before the demand but it was made within a reasonably prompt period of time considering the emergent circumstances. I have reviewed and considered the whole chain of events. There were no additional unexplained gaps in time. Unlike the decision cited by Counsel of R. v. Willett, [2011] O.J. No. 504 (Ont. S.C.J.), both of the Officers provided a clear sequence of events from the time of the formulation of the grounds through to the administration of the first test. In these circumstances, I find that the demand for the breath sample and the provision of the breath samples were as soon as practicable.
Conclusion
78The various Charter applications have been dismissed, the roadside breath samples were admitted during the voir dire as part of the Officer's grounds, the breath demand was made and the breath readings were obtained as soon as practicable. The two truncated breath readings of 170 mg of alcohol in 100 ml of blood were obtained more than 15 minutes apart, by a qualified technician, using a properly functioning approved instrument and Mr. Frost provided both suitable samples directly into the instrument. In addition, the Crown has proven that this offence occurred on the date and in the jurisdiction alleged in the Information and that Mr. Frost was the person who was operating the motor vehicle that was involved in a crash on the 401 less than two hours before the breath samples were obtained from him. Accordingly, the breath readings are admitted as evidence during the trial.
79I am satisfied beyond a reasonable doubt that Mr. Frost had care and control of a motor vehicle with a blood alcohol concentration that exceeded the legal limit, accordingly, he is found guilty as charged.
Released: February 21st, 2018
Signed: Justice Green