Court Information

Court File No.: Lindsay 170879 Date: 2018-12-19 Ontario Court of Justice

Between: Her Majesty the Queen — and — Janusz Szczerba

Before: Justice S.W. Konyer

Heard: November 9 and 14, 2018

Reasons for Judgment Released: December 19, 2018

Counsel:

• M. Daigle, for the Crown
• J. Fagan, for the defendant Janusz Szczerba

KONYER J.:

Introduction

1The accused was charged with driving while impaired by a drug on June 17, 2017. On that date, he was operating a van on Highway 118 near the village of Minden when he came to the attention of the police because of his poor driving. This led to a traffic stop and police investigation into his level of sobriety. The officer who stopped him formed a belief that the accused had a drug in his body, and required him to perform a Standard Field Sobriety Test (S.F.S.T.) at the roadside. His poor performance (in the officer's opinion) on this test led to his subsequent arrest and detention. Ultimately he was required by demand to provide both a breath sample for analysis and to submit to an evaluation by a Drug Recognition Expert (D.R.E.), who also happened to be the arresting officer. As a result of his performance on this evaluation, the officer formed the opinion that the accused's ability to drive was impaired by a central nervous system depressant. This led to a seizure of a sample of his urine, which was found to contain Olanzapine, a prescription anti-psychotic drug.

2At trial, the defence claimed that the arresting officer did not have a reasonable suspicion that the accused had a drug in his body, and that the S.F.S.T.'s therefore constituted an unreasonable search and seizure, contrary to section 8 of the Canadian Charter of Rights and Freedoms. Since it is not disputed that the accused was detained while these tests were conducted, it follows that his detention was arbitrary within the meaning of section 9 of the Charter if the search which caused the detention was unreasonable.

3After he was arrested following the S.F.S.T., the accused was not informed of his right to counsel for 8 minutes while the officer moved and searched his vehicle. The defence argues that this was a breach of his right to be immediately informed of his right to counsel, contrary to section 10(b) of the Charter.

4Once he was informed of his right to counsel, the arresting officer made a demand that the accused provide samples of his breath for analysis by an approved instrument. He was then transported to the nearest police station, spoke to counsel and provided a breath sample which registered zero. At that point, some 82 minutes after his arrest, the officer made a demand that the accused submit to the D.R.E. evaluation. The defence argues that the officer failed to comply with the requirement in section 254(3.1) of the Criminal Code that the D.R.E. demand be made "as soon as practicable" after grounds are formed. Thus the search and seizure conducted pursuant to the demand was not authorized by law and constituted a further breach of the accused's right to be free from unreasonable search and seizure, contrary to section 8 of the Charter.

5The defence also argues that the accused was held in custody for an excessive period of time following the completion of the police investigation, and that this overholding constitutes an arbitrary detention contrary to section 9 of the Charter.

6As a remedy for the Charter breaches claimed, the defence seeks an order pursuant to section 24(2) of the Charter excluding the results of the D.R.E. exam and the results of the analysis of the accused's urine.

7The Crown disputes each of the Charter claims made by the accused. It argues that the arresting officer had an objectively reasonable suspicion that the accused had a drug in his body based on all of the circumstances known to the officer when he made the demand that the accused submit to the roadside S.F.S.T. Further, the Crown says there was no section 10(b) breach as the officer was entitled to briefly delay informing the accused of his right to counsel for public safety reasons. The Crown also argues the D.R.E. evaluation demand was made in a reasonably prompt time in the circumstances. Further, the Crown disputes that any overholding occurred in this case.

8If any Charter breaches did occur, the Crown argues that the circumstances do not justify an order excluding the impugned evidence.

9The onus is on the accused to prove a breach of his Charter rights on a balance of probabilities. Since it is admitted that the searches in question were conducted without a warrant, however, the onus shifts to the Crown on the section 8 claims to prove that reasonable grounds existed for each search.

10It is common ground that if the impugned evidence is excluded, the Crown cannot prove the charge against the accused. Even if the evidence is not excluded, however, the defence argues that the Crown has not proven beyond reasonable doubt that the accused was impaired by a drug. It is argued that the accused's poor English skills undermines the significance of his failures to follow directions during the course of the D.R.E. evaluation. Further, the defence says that the D.R.E. opinion, which is that the accused was impaired by a central nervous system depressant, is undermined by the scientific finding that the only drug detected in his system belonged to a different drug category.

11Finally, even if I am satisfied that the Crown has proven impairment, the defence argues that the accused was involuntarily intoxicated, and therefore lacked the criminal intent required for a conviction.

Issues to be Decided

12Therefore, the issues that I must decide in this case are as follows:

• Has the Crown proven that the arresting officer had a reasonable suspicion that the accused had a drug in his body when the S.F.S.T. demand was made?
• Has the accused proven that his right to be promptly informed of his right to counsel was infringed?
• Has the Crown proven that the D.R.E. evaluation demand was made as soon as practicable?
• Has the accused proven that he was arbitrarily detained after the police investigation was completed?
• If any Charter breach(es) occurred, should the evidence of the D.R.E. evaluation or the analysis of the accused's urine be excluded?
• If the evidence is not excluded, has the Crown proven beyond a reasonable doubt that the accused's ability to drive was impaired by a drug?
• If the Crown has proven that his ability to drive was impaired by a drug, am I left with a reasonable doubt whether the accused was voluntarily intoxicated?

13In order to decide these issues, I will first review the relevant evidence and make findings of fact. Once I have decided what the facts are, I will then apply the law to these facts. This will allow me to answer these questions.

14The accused is, of course, presumed innocent of the charge he is facing. This means that I must find him not guilty unless the Crown proves his guilt beyond reasonable doubt. While proof beyond reasonable doubt does not require the Crown to prove his guilt to an absolute certainty, it does mean that the Crown must prove more than that the accused is probably or likely guilty. If the Charter applications in this case fail, I must consider all of the admissible evidence and decide whether I am sure that the accused is guilty of this offence. If I am not sure of his guilt, then I must find him not guilty. If I am sure of his guilt, then I must find him guilty.

15I would be remiss if I failed to thank each counsel for the professional manner in which they conducted this case. They each made responsible concessions, focussed on the issues that needed to be litigated, and advanced their respective positions skilfully. I am indebted to their advocacy, which allowed me to focus my attention on the real issues in this case. I now turn to a review of the evidence.

Summary of the Evidence

16With the consent of counsel, the evidence on the Charter applications was blended with the evidence on the trial proper. I heard testimony from Stacie-Lynn Bilton, a passenger in a vehicle that followed the accused's van for a period of time on Highway 118, and who called 911. I also heard from P.C. Kevin Brown, who conducted the traffic stop, administered the roadside S.F.S.T., arrested the accused, read him his right to counsel, administered the D.R.E. evaluation, and prepared the accused's release documents. He also offered an expert opinion as a D.R.E. regarding the accused's ability to drive. I also heard from Betty Chow, a scientist from the Centre for Forensic Sciences (C.F.S.), who testified as an expert about the results of the analysis of the accused's urine and the impairing effects of Olanzapine, the drug detected in his urine. I also heard testimony from P.C. Robin Carmount, the officer who ultimately released the accused from custody. As part of the Crown case, I also received copies of an LCBO receipt found in the accused's vehicle, as well as a prescription pill bottle containing 13 Olanzapine pills.

17The defence called evidence from the accused's daughter Beata Szczerba about the circumstances in which he was prescribed Olanzapine. Finally, I heard testimony from the accused about his actions leading up to the traffic stop.

The Events of June 17, 2017

18On the afternoon of Saturday, June 17, 2017, Stacie-Lynn Bilton was a passenger in a vehicle being driven by her spouse. They were returning home to Haliburton on Highway 118, which is a paved, two lane rural highway that has many hills and curves. At about 3:00 p.m., they followed the accused's vehicle for about 15 minutes. The accused was driving a van towing a U-Haul trailer. Ms. Bilton said that the accused was driving erratically. He was traveling at inconsistent speeds on the highway, which had the usual 80 km/hr speed limit. At times, the accused slowed to about half that speed. His vehicle was also swerving on the road, at times crossing completely into the oncoming lane of traffic, at other times crossing onto the shoulder of the road.

19When they were finally able to pass the vehicle, she made observations of the driver and sole occupant, who is known to be the accused. She said that he appeared to be tired, that his eyes were heavy and that he was slumped forward in his seat. As a result of her observations, Ms. Bilton called 911 and provided an account of what she had seen, including a description of the vehicle and driver.

20At 3:50 p.m., P.C. Kevin Brown of the O.P.P. was provided with information relayed from Ms. Bilton by his dispatcher. Specifically, he was provided with a description of the vehicle, its location and direction of travel. He was also told that a civilian caller had reported that the driver appeared to be drowsy, that the vehicle's speed was inconsistent and that it was swerving all over the road. He responded to the area traveling in the opposite direction from the accused's vehicle on Highway 118. As he crested a hill, he saw the van approaching him in the wrong lane of traffic. P.C. Brown drove onto the shoulder to avoid a collision, and immediately turned his cruiser around and pursued the van. Before he was able to conduct a traffic stop, he saw the van weave continuously between the centre line and the fog line of its own lane. When he did signal the van to stop, it came to rest on an angle with its front end partially obstructing the highway.

21P.C. Brown approached the van and spoke to the accused. He was looking for signs of impairment. He did not note any odour of alcohol emanating from the accused, nor did he detect any slurring of his speech. When he requested the accused's driver licence and vehicle information, he said that the accused had difficulty locating the vehicle documents and that he struggled to remove his licence from his wallet. P.C. Brown, who is an experienced police officer and a qualified D.R.E., said that the accused's fine motor skills were slow. Based on all of his own observations and the information conveyed to him from Ms. Bilton, P.C. Brown formed a suspicion that the accused had alcohol, a drug, or a combination in his body. Accordingly, at 4:10, he demanded that the accused perform physical coordination tests (the S.F.S.T.) pursuant to section 254(2)(a) of the Criminal Code.

22P.C. Brown has been trained in administering the S.F.S.T., and in fact now trains other police officers on these tests. The accused complied with his demand to perform the tests. P.C. Brown agreed that the accused spoke with a heavy accent and that his English was limited. Nevertheless, it was his belief that the accused understood what he was told, and the instructions he was given about how to perform the various tests. This is because the accused told him that he understood when he was asked this question, and also because the accused followed his instructions, which were aided by a demonstration of the tests from P.C. Brown.

23In P.C. Brown's opinion, the accused failed the tests, which led the officer to form the belief that the accused's ability to drive was impaired by alcohol, a drug, or a combination. He arrested the accused at 4:22, handcuffed him, and lodged him in the rear of his police cruiser. P.C. Brown did not, however, inform the accused of his right to counsel at that time. Rather, he said he was concerned that the accused's van, which had been left partially on the highway, was a danger to other motorists, and he decided to move the van at this time prior to informing the accused of his right to counsel. The officer agreed that he had just spent the last 12 minutes administering the S.F.S.T. with the van parked in the same position, and he also agreed that it would not have taken more than a minute to inform the accused of his right to counsel.

24While P.C. Brown was moving the van, he noticed a prescription bottle as well as open alcohol containers inside. He then conducted a search of the vehicle incident to arrest, and seized a number of items. These included a pill bottle with a label for 14 Olanzapine 5 mg pills that had been filled on June 16, 2017, the day before. The bottle still contained 13 pills, and the label on the bottle contains the direction "take at bedtime". P.C. Brown also seized a prescription information sheet for the Olanzapine pills, which includes the following information:

"This medication is typically used for certain mental disorders (psychosis). It may also be used for bipolar disorder (manic-depressive illness), to assist in the treatment of depression, as well as for other uses."

"This product may intensify the effect of alcohol. Limit alcohol consumption to an occasional intake."

"In addition to its desired action, this medication may cause some side effects, notably:

• It may cause dizziness – use caution when getting up from a lying or sitting position
• It may cause headaches
• It may cause either drowsiness or excitability – use caution until you know how you will react

Each person may react differently to a treatment. If you think this medication may be causing side effects (including those described here, or others), talk to your doctor or pharmacist."

25P.C. Brown also observed an open but empty beer can next to the driver's seat. A further search of the vehicle revealed a second open and partially full can of beer on the passenger side floor, and a third open and empty can of beer inside an LCBO bag behind the driver's seat. The LCBO bag also contained a fourth unopened can of beer as well as a receipt from an LCBO store in Barrie with a time stamp of 11:59 a.m. that same day.

26After seizing these items, P.C. Brown returned to his cruiser and informed the accused of his right to counsel at 4:30, some 8 minutes after he was first placed under arrest. At that point the officer said he first noticed the faint odour of an alcoholic beverage inside his cruiser. He then cautioned the accused. He said that the accused responded by admitting that he had consumed alcohol. P.C. Brown then made a breath demand, requiring that the accused submit samples of his breath for analysis by an approved instrument. As I understood his evidence, he made this demand for two reasons: first, he now had grounds based on the discovery of the beer cans and receipt, the odour of alcohol, the accused's admission of consumption, and all of the other indicia (poor driving, lack of fine motor skills) to now form a belief that the accused may be impaired by alcohol. This would justify a breath demand under section 254(3) of the Criminal Code. Second, he also had grounds to believe that the accused was impaired by a drug or a combination of alcohol and a drug, which would justify a D.R.E. evaluation demand under section 254(3.1) of the Criminal Code. Since P.C. Brown was a D.R.E., he knew that the first step in that evaluation was to administer a breath test in order to determine whether alcohol was a factor. In other words, the accused was going to be required to provide a breath sample either way. The breath results would dictate whether the investigation then proceeded as one involving impairment by alcohol, a drug, or a combination of the two.

27P.C. Brown then transported the accused directly to the nearest detachment, arriving at 4:52. He lodged the accused and facilitated his right to counsel by placing a call to duty counsel and requesting the services of a Polish-speaking lawyer. This call was returned at 5:13, and the accused spoke to counsel until 5:34, at which time he was turned over to a qualified technician to perform an analysis of his breath. At 5:44, P.C. Brown was told that a suitable sample of the accused's breath had been analyzed and found to contain no alcohol. At this time, some 82 minutes after the accused's arrest, P.C. Brown made a demand to him that he submit to a D.R.E. evaluation, pursuant to section 254(3.1) of the Criminal Code.

28P.C. Brown then conducted the evaluation, which involves twelve steps. The first step in the evaluation involves performing a single breath test if there is any suspicion that the person has alcohol in their body. If the single test produces a reading above the legal limit, then the normal procedure for alcohol testing is followed. Since a breath test had already been performed on the accused, this step of the evaluation was skipped. I will summarize the relevant findings from the remainder of the evaluation.

29At three points during the evaluation, the accused's pulse was checked, and found to be above the normal range. His blood pressure was also tested and found to be slightly high. His body temperature was normal. His muscle tone was flaccid, which P.C. Brown said could mean he was under the influence of a depressant, inhalant or analgesic, which are different categories of drugs. An examination of his eyes showed horizontal gaze nystagmus, or involuntary jerking of the pupils, which the officer said meant that some intoxicant was having an effect. He displayed vertical gaze nystagmus, meaning that the intoxicant was a high dose for the accused. A series of divided attention tests were performed, and the accused performed poorly on each, which indicated to P.C. Brown that he was under the influence of some form of intoxicant.

30Based on the totality of the evidence he gathered during the evaluation, together with his observations of the driving and the accused's condition at the roadside, P.C. Brown formed the opinion that the accused's ability to operate a motor vehicle was impaired by a central nervous system depressant. This is a category of drug which will cause nystagmus, a lowered pulse and blood pressure, as well as a flaccid muscle tone. Body temperature will be unaffected. P.C. Brown said that the accused exhibited all of these symptoms except for the lowered pulse and blood pressure.

31As a result of the evaluation, the accused was required to provide a urine sample, which was later sent to the Centre for Forensic Sciences (C.F.S.) for testing. The evaluation was completed at 6:40 p.m., at which point the accused was lodged in a cell. P.C. Brown, whose shift had ended at 6:00 p.m., then completed paperwork including a Promise to Appear and Administrative Driver's Licence Suspension, which had to be served on the accused. He completed his tasks by 7:30 p.m., at which point he left the detachment. Another officer, P.C. Carmount, had started a shift at 6:00 p.m., and had agreed to complete the accused's release from custody.

32P.C. Carmount said he volunteered to assist P.C. Brown in preparing the accused for release. He fingerprinted the accused at 6:55 p.m., and released him from custody at 8:23 p.m. He knew from the start of his shift that the accused was to be released once the necessary paperwork was prepared and served. He could offer no explanation for the accused's continued detention after 7:30, by which time the paperwork and fingerprinting had all been completed. During his dealings with the accused, P.C. Carmount did not note any physical signs of impairment.

Expert Evidence

33Betty Chow from the C.F.S. testified as an expert witness in forensic toxicology. The accused's urine was tested at the C.F.S., and Olanzapine was detected. The testing shows only the presence of a substance, not the concentration. Ms. Chow explained that Olanzapine is an anti-psychotic drug, which is often prescribed to treat conditions such as bipolar disorder. Side effects can include drowsiness and dizziness, which can be more pronounced in an inexperienced user. It is usually only prescribed to be taken once daily, so the effects are long-lasting, but will peak between 5 to 8 hours after a dose is taken. The 5mg Olanzapine pills found in the accused's vehicle are a typical starting dose for this drug.

34When asked for her opinion as to how Olanzapine can interact with alcohol, Ms. Chow explained that they are different categories of drugs. Alcohol is a central nervous system depressant, while Olanzapine is an anti-psychotic. However, both can cause drowsiness. She would expect that a first-time user of Olanzapine may experience some residual effects of drowsiness 15 hours after taking a 5mg pill. She could not say how much drowsiness the consumption of two beers would cause for the accused since she does not know his level of tolerance for alcohol. However, since his blood alcohol concentration was zero, this would mean that any alcohol which he may have consumed was eliminated from his system and would no longer cause any drowsiness. In combination, she agreed that alcohol and Olanzapine could cause increased drowsiness, subject to the individual's tolerance for each. She also said that Olanzapine generally produces an increase in heart rate, pulse and blood pressure.

Defence Evidence

35The accused's daughter Beata Szczerba testified for the defence. She explained that she and her sister took the accused to the Centre for Addiction and Mental Health (C.A.M.H.) in Toronto on June 15, 2017 due to concerns they had about his deteriorating mental health. He was given a two-week trial prescription for Olanzapine and was to return to check on his progress. She acted as an interpreter for her father, whose native language is Polish. Although he is able to speak and understand some English, she described his English language skills as very limited.

36Ms. Szczerba said she was told by the doctor at C.A.M.H. that the medication could cause dizziness and/or drowsiness. She translated this information to her father. She says she also told her father not to drive after taking the medication because she assumed it could have an impact on his ability to drive, though she agreed the doctor did not give any such warning to her father. Ms. Szczerba and her sister were aware of their father's plan to drive to his property near Bancroft on the weekend, and they urged him not to travel because of concerns they had over the impact of the new medication on his ability to drive safely.

37The accused testified in his own defence. He said that he filled the prescription on June 16 and took a pill that evening, as directed. When he woke the following day, he felt fine and decided to travel as planned to his property. He left late in the morning, and stopped on the way in Barrie to purchase beer. Sometime after making the stop in Barrie, he began to feel weak and got a headache. He pulled over to rest, and began to feel very thirsty. He drank some apple juice that he had with him, but still felt thirsty, so he drank part of a beer. After a time he began to feel better, so he continued his journey. The accused agreed that he attributed the weakness and headache to the new medication he had taken, as there was no other explanation for the sudden onset of these symptoms.

38The accused did not testify about his manner of driving once he resumed his journey. After he was stopped by the police, he did not understand all of the instructions he was given either during the roadside S.F.S.T. or subsequent D.R.E. evaluation due to his poor English skills. He agreed that his daughter translated information for him that dizziness and drowsiness were potential side effects of the medication he was prescribed at C.A.M.H. He also agreed that his daughter warned him not to drive after taking the medication, but explained that since he took the medication before bed, he assumed that any side effects would disappear by the following morning.

Analysis

Issue 1: Did P.C. Brown have a reasonable suspicion that the accused had a drug in his body?

39P.C. Brown was entitled to make a demand that the accused submit to the S.F.S.T. so long as the officer had a reasonable suspicion that the accused had a drug in his body. In making this assessment, the officer was entitled to rely on the totality of the information in his possession, including his own observations and hearsay information from other sources. While he was not entitled to ignore information that suggested an innocent explanation, he was also not required to investigate every possible alternate explanation. As the Supreme Court held in R. v. Chehil, 2013 SCC 49, at para. 32: "reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so." [emphasis in original]

40There is no doubt that P.C. Brown subjectively believed that the accused had a drug in his body. What I have to decide is whether that belief was objectively reasonable. The officer had information that the accused was driving erratically – that his vehicle was swaying and traveling at inconsistent speeds. He himself observed the vehicle traveling in the wrong lane. He was clearly looking for signs of impairment as an explanation for the poor driving when he approached the accused's vehicle at the roadside. At that time, there was nothing to suggest that the accused had alcohol in his body. The officer's uncontradicted evidence is that the accused displayed unusually slow fine motor skills in providing his driver's licence. In my view, the officer's suspicion that the accused had a drug in his body as an explanation for this constellation of factors was reasonable. I agree with his assessment that there was a reasonable possibility that the accused had a drug in his body. Nothing more was required.

41It follows from this conclusion that I find no breach of the accused's right to be secure from unreasonable search and seizure based on the S.F.S.T. demand. Nor was his detention for this purpose arbitrary.

Issue 2: Was the accused's right to counsel infringed because P.C. Brown failed to promptly inform him of that right?

42Section 10(b) of the Charter provides that "everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right." The phrase without delay had been interpreted by the Supreme Court to mean immediately. "Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under section 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention": see R. v. Suberu, 2009 SCC 33, at para. 42.

43Although the accused's 10(b) rights were temporarily suspended during the roadside S.F.S.T. process, that suspension ended once P.C. Brown arrested him for impaired driving. The officer was required at that point to immediately inform the accused of his right to counsel, subject to legitimate safety concerns. P.C. Brown testified that he delayed informing the accused of his right to counsel at this juncture because he felt a need to move the accused's vehicle to a safe position completely off the highway. I agree with the defence that this explanation lacks credibility. By the point he was placed under arrest, the accused's vehicle had been parked in the same position for 14 minutes, including 12 minutes while P.C. Brown conducted the S.F.S.T. directly in front of the vehicle. Informing the accused of his right to counsel took less than a minute. Delaying this process for safety concerns that were already in existence for the previous 14 minutes could not reasonably take precedence over the accused's constitutional rights.

44I am also troubled by the fact that the officer used a good portion of the time between the accused's arrest and informing him of the right to counsel to search his vehicle. This bolsters my conclusion that legitimate safety concerns were not the true reason for the delay in informing the accused of his right to counsel. The accused has proven that his 10(b) rights were infringed.

Issue 3: Was the D.R.E. evaluation demand made as soon as practicable?

45Section 254(3.1) of the Criminal Code provides that an officer who has reasonable grounds to believe that a person has been operating a motor vehicle under the influence of a drug or a combination of alcohol and a drug "may, by demand made as soon as practicable" require the person to submit to a D.R.E. evaluation. In the accused's case, P.C. Brown made this demand at 5:44 p.m., some 82 minutes after the accused failed the roadside S.F.S.T.

46P.C. Brown offered an explanation for his failure to make an immediate D.R.E. evaluation demand at 4:22, when the accused was arrested following the S.F.S.T. for impaired operation. He said that the discovery of alcohol in the vehicle after the accused's arrest led him to suspect that alcohol was a factor, despite the absence of any sign of alcohol consumption prior to that point. He also pointed to the fact that he detected an odour of alcohol in his cruiser at 4:30, after the accused had been lodged in the cruiser for 8 minutes. Therefore, he made a demand at 4:35 that the accused provide a sample of his breath for analysis by an approved instrument under section 254(3) of the Criminal Code rather than a D.R.E. evaluation demand under section 254(3.1) of the Criminal Code. He went on to explain that since he knew, as a qualified D.R.E. evaluator, that the first step in the evaluation was breath testing for the presence of alcohol, he expected that the accused would be required to submit to a breath demand in any event.

47I find the officer's explanation to be less than satisfactory. The law requires him to make the D.R.E. demand as soon as reasonably possible when he has grounds to suspect that a person has committed a drug-driving offence if it is his intention to require the person to submit to an evaluation. P.C. Brown clearly had these grounds at 4:22 based on the accused's performance on the S.F.S.T., which was administered precisely for the purpose of determining if such grounds existed. At this time, the officer had no basis for believing that alcohol played a role. The D.R.E. demand should have been made at that point, just as the accused should have been informed of his right to counsel. By delaying the demand, in my view, P.C. Brown was not acting reasonably.

48Furthermore, even if he was justified in delaying the demand until 4:30, after the accused's vehicle had been moved and searched, a D.R.E. demand should still have been made at that point. Whether the officer also had grounds to make a breath demand is immaterial. One of the purposes of the demand is to inform the arrestee of the officer's intention to compel him or her, under penalty of law, to provide incriminating information that may be used in evidence in a criminal prosecution. One of the effects of the delay in making the D.R.E. demand in the accused's case is that he was not informed of the officer's true intention until after he had spoken to duty counsel. He spoke to duty counsel after having been told that he would be required to provide a sample of his breath for analysis, not that he was going to be compelled to submit to a D.R.E. evaluation. He was not given another opportunity to speak to duty counsel after 5:44, when the D.R.E. evaluation demand was finally made.

49I find that the D.R.E. evaluation demand was not made "as soon as practicable" in the circumstances of this case. This was not a harmless omission, as P.C. Brown seemed to believe. The result of this failure was that the accused was required to provide incriminating evidence against himself without first having the opportunity to obtain legal advice. The D.R.E. evaluation was a warrantless search. The onus is on the Crown to demonstrate that reasonable grounds existed for the search, that it was authorized by law, and that it was carried out in a reasonable manner. Although the Crown has proven that P.C. Brown had reasonable grounds to conduct the search, it was not authorized by law because of the officer's failure to make a reasonably prompt demand. Nor was the search carried out in a reasonable manner as the accused was required to participate in the search without first being given an opportunity to receive legal advice. I find that the accused's section 8 Charter rights were infringed.

Issue 4: Was the accused arbitrarily detained after the police investigation was completed?

50This is not a case where the police attempted to justify the delay in releasing the accused due to a lack of sobriety. It was clearly P.C. Brown's intention to release him once the investigation was complete. P.C. Carmount was aware of this fact, and took steps to assist P.C. Brown in facilitating the release of the accused. Some expected delay in the release occurring to allow for fingerprinting and the preparation and service of release documents occurred, but this process was completed by 7:30 p.m. when P.C. Brown left the detachment.

51The accused has proven that he was nevertheless held in custody for close to another hour, until he was released at 8:23 p.m. He has proven that there was no reason for his continued detention during this period. Neither officer was able to explain the delay, and no lawful justification was proffered for this period of detention. In my view, this is the very definition of arbitrariness. The accused's detention was unnecessary and capricious. The only reasonable explanation is that the police were negligent or indifferent to his detention. I find that the accused was arbitrarily detained from 7:30 until 8:23 p.m.

Issue 5: Should the evidence of the D.R.E. evaluation or the analysis of the accused's urine be excluded?

52I have found breaches of the accused's rights as guaranteed by sections 8, 9 and 10(b) of the Charter. To determine whether evidence ought to be excluded as a result, I must weigh and balance the three factors identified by the Supreme Court in R. v. Grant, 2009 SCC 32. These factors are: the seriousness of the Charter-infringing state conduct, the impact of the breaches on the accused's Charter-protected interests, and society's interests in an adjudication of the case on its merits. I will consider each in turn.

i) The seriousness of the Charter-infringing state conduct

53Charter infringements can range in seriousness on a "spectrum from mere technical breaches at one end to bad faith violations at the other": R. v. Jennings, 2018 ONCA 260, at para. 26. Clearly, the more serious the police conduct resulting in the breach or breaches, the more this branch of the test will favour exclusion. Wilful or reckless disregard by the police of Charter standards will also make the conduct more serious.

54In my view, P.C. Brown's conduct in failing to inform the accused of his right to counsel immediately upon his arrest was on the less serious end of the range. He was entitled to move the accused's vehicle to a safe location and to search the vehicle incident to arrest before leaving the scene with the accused, who had been lawfully arrested. He should have informed the accused of his right to counsel before performing these tasks, resulting in an 8 minute delay in the accused receiving this information. This breach was technical in nature.

55The section 8 breach that occurred because the officer failed to make a prompt D.R.E. evaluation demand, however, was more serious. P.C. Brown clearly intended to perform a D.R.E. evaluation when the accused was arrested. One of the reasons for the requirement that the demand be made promptly is so that the detained person knows the reason for his or her continued detention, and the reason they are required to accompany the officer. The police intended, under penalty of law, to demand that the accused provide evidence which could later be used against him in criminal proceedings. He was entitled to know what process the police intended to use to gather this evidence, and he was entitled to this information before exercising his right to counsel. Although I accept P.C. Brown's explanation for why he did not make a prompt D.R.E. evaluation demand and I find that he did not act in bad faith, this is not the same as a finding that he acted in good faith. Wilful ignorance of Charter standards cannot be equated with good faith. It is important that courts disassociate themselves from serious Charter-infringing state conduct. The section 8 breach, in my view, was serious.

56The section 9 breach that occurred here was moderately serious. It appears to me as though the accused was left to languish in a police cell for about an hour after both officers acknowledge that he should have been released. The only logical explanation is that the police were negligent in failing to promptly release him. While such negligence towards the accused's liberty interests is clearly unacceptable, the situation was corrected in under an hour, which lessens the impact of this breach. Although this breach standing alone would not result in a remedy under section 24(2), it is indicative of a pattern of police indifference towards the accused's constitutional rights.

57In combination, the Charter breaches that occurred in this case were serious. The first branch of the Grant test therefore favours exclusion of the evidence.

ii) The impact of the breaches on the accused's Charter-protected interests

58This line of inquiry calls for an assessment of how much the infringements actually undermined the accused's Charter-protected interests. Again, there is a spectrum: "[t]he impact of a Charter breach may range from fleeting and technical to profoundly serious": R. v. Grant, supra, at para. 76. As the seriousness of the incursion into the protected interest increases, so does the risk that the admission of the evidence will bring the administration of justice into disrepute.

59The delay that occurred here in informing the accused of his right to counsel had no real impact on his actual ability to receive legal advice. Had he been informed of his 10(b) rights 8 minutes earlier, nothing would have changed in the course of events that unfolded afterwards. No evidence was gathered from the accused during this period that would not otherwise have been lawfully discovered.

60The same cannot be said for the delay in making the D.R.E. evaluation demand. This resulted in the accused receiving legal advice after being told that he would be required to provide a sample of his breath for analysis. This was the only demand that had been made to him at the point he was put into contact with duty counsel. P.C. Brown clearly understood that he was entitled to conduct a D.R.E. evaluation, and he clearly contemplated this course of action. By failing to inform his arrestee of this intention, the accused would not have been in a position to receive legal advice that was relevant to the jeopardy he faced. P.C. Brown was not entitled to withhold this information from the accused until the breath testing procedure revealed that he had no alcohol in his system. The accused ought to have been told that he would be required to submit to a D.R.E. evaluation before he spoke to duty counsel. He had a constitutionally protected interest in being informed of the evidentiary demands that the police intended to make of him. The impact of this breach on the accused's interests was significant.

61The impact on the accused's liberty interests as a result of the over-holding that occurred here was moderate. The period of arbitrary detention was less than an hour, and there is no evidence that the accused was mistreated in any way during this period.

62Once again, in combination, the effect of these breaches on the accused's Charter-protected interests was serious. This branch of the Grant test also favours exclusion of the evidence.

iii) Society's interest in an adjudication of the case on its merits

63Both counsel concur that this branch of the Grant tests favours admission of the impugned evidence. Although the defence challenges the reliability of P.C. Brown's ultimate opinion on impairment, the evidence I am concerned with here is necessary to undertake an assessment of the officer's opinion. There is no dispute that the scientific analysis performed by the C.F.S. was reliable. Exclusion of this evidence would gut the Crown's case and deny the public a trial on the merits on a serious criminal offence. I agree that this branch of the Grant test favours inclusion of the evidence.

iv) Balancing the Grant factors

64The purpose of section 24(2) is to maintain the good repute of the administration of justice in the long term. The focus of the balancing of interests is not on the immediate case before the court, but rather "whether the overall repute of the justice system, viewed in the long term, will be adversely affected by the admission of the evidence": R. v. Grant, supra, at para. 68. My concern is not with punishing the police or compensating the accused. Rather, the focus is societal, and I must consider objectively whether "a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute": R. v. Grant, supra, at para. 68.

65In the accused's case, there is in my view a pressing need for the court to disassociate itself from the serious disregard exhibited by the police towards the accused's Charter rights. The impact on the accused's Charter-protected interests was also serious. If no remedy were to flow for these breaches, there is a real risk that a message will be sent that Charter rights count for little. Despite the impact that this decision will have on the Crown case, the evidence is excluded.

Issue 6: If the evidence is not excluded, has the Crown proven beyond a reasonable doubt that the accused's ability to drive was impaired by a drug?

66Although it is not strictly necessary for me to decide the remaining issues given my findings on the Charter applications, I will do so in the interests of completeness.

67The defence argues that I ought to have a reasonable doubt on the issue of impairment in part because P.C. Brown was wrong in his ultimate opinion that the accused's ability to drive was impaired by a central nervous system depressant. The C.F.S. evidence, however, shows only the presence of a different category of drug – an anti-psychotic. If the Crown were required to prove that the accused was impaired by the specific category of drug identified by the D.R.E. evaluator, I would agree. All that the Crown is required to prove, however, is that the accused's ability to drive was impaired by a drug.

68Here, the evidence as a whole clearly proves that the accused was under the influence of a single drug – Olanzapine, an anti-psychotic medication that he took as prescribed. The driving evidence is unchallenged, and suggests a high degree of impairment consistent with drowsiness. The only drug detected in his body at the time can cause drowsiness, particularly in a novice user like the accused. The irresistible inference is that the presence of Olanzapine in the accused's system caused the drowsiness and impairment of his ability to drive. The fact that P.C. Brown misdiagnosed the category of drug that actually caused the impairment is irrelevant.

69I have also taken into account the fact that the accused may not have been able to fully understand all of the details he was given by P.C. Brown during the D.R.E. evaluation. I accept his testimony that his poor language skills prevented him from fully understanding the directions he was given. It would have been preferable for the officer to have ensured that the accused fully understood what tasks he was being asked to perform as part of the evaluation. Nevertheless, many of the officer's observations, such as swaying, poor balance, flaccid muscle tone and gaze nystagmus existed independently of the tasks the accused was directed to perform. I am satisfied based on the totality of the evidence that the Crown has proven some degree of impairment of the accused's ability to drive, and I am further satisfied that the Crown has proven that this impairment was caused by the Olanzapine in his body.

70Accordingly, if the impugned evidence were not excluded, I would have found that the Crown had proven beyond reasonable doubt that the accused's ability to operate a motor vehicle was impaired by a drug.

Issue 7: If the Crown has proven that his ability to drive was impaired by a drug, am I left with a reasonable doubt whether the accused was voluntarily intoxicated?

71In most impaired driving cases, it is safe to presume that the accused voluntarily consumed the substance causing the impairment. However, this is not always the case. I agree with and adopt the reasoning of Paciocco J (as he then was) in R. v. McGrath, 2013 ONCJ 528, where he held at para. 13 that an accused must be found not guilty "if there is affirmative evidence that raises a reasonable doubt that his intoxication by drug was voluntary, and about whether he realized he was impaired before choosing to drive."

72In this case, I do have a reasonable doubt that the accused's intoxication by a drug was voluntary. He was not specifically directed not to drive after taking the drug by the medical professional who prescribed it to him, nor does the pharmacy warning contain a specific direction not to drive after taking the drug. Although the concerns about driving raised by his daughter were understandable, I am not satisfied that her concerns were sufficient to fix the accused with the knowledge that his ability to drive safely would be compromised if he took the drug in accordance with the instructions he had been given.

73This is not the end of the inquiry, however, for "[e]ven where 'involuntary intoxication' occurs, if an accused person becomes aware that they have become intoxicated by alcohol or a drug, they cannot deny the mens rea if they subsequently choose to operate a motor vehicle while still impaired": R. v. McGrath, supra, para. 10. Here, the accused stopped driving for a period of time before coming to the attention of the police because he was experiencing weakness and a headache. He attributed these symptoms to the new medication he had taken for the first time the previous evening, which was a logical inference. These symptoms were severe enough that he stopped driving temporarily, during which period he consumed some alcohol, hardly a wise decision.

74By this point, I can safely conclude that the accused had good reason to suspect that his ability to safely operate a vehicle was being compromised by the Olanzapine he had taken. This is precisely why he stopped driving. Ms. Chow, the C.F.S. expert, testified that while Olanzapine can cause drowsiness, it does not impair cognitive functioning. By choosing to continue driving after acquiring this knowledge, the accused was reckless to the foreseeable risk that his ability to drive safely was impaired, either by the drug he had been prescribed, or a combination of that drug together with the alcohol he had consumed while taking a break from driving. It follows that I find he possessed the necessary mens rea for a conviction for impaired driving.

75Therefore, had I not excluded the evidence in this case, I would have found the accused guilty of the single charge before the court. For the reasons given earlier, however, that evidence has been excluded and the accused is found not guilty.

Released: December 19, 2018

Signed: "Justice S.W. Konyer"