Court File and Parties

ONTARIO COURT OF JUSTICE DATE: March 14, 2022 COURT FILE No.: 200539

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

HEATHER POWER

Before: Justice R. S. Gee

Heard on: February 21 and 22, 2022 Reasons for Judgment released on: March 14, 2022

Counsel: Derek Zuraw, counsel for the Crown Bruce Daley, counsel for the accused

Gee J.:

Introduction

Introduction

1The accused, Heather Power, is facing a charge of operating a conveyance with an excessive blood alcohol concentration (“BAC”) contrary to s. 320.14(1)(b) of the Criminal Code. The offence is alleged to have occurred in a parking lot of a Sobeys grocery store in Paris, Ontario on February 8, 2020.

2The case was initially defended by the accused based on her assertion that her Charter Rights were breached in a number of ways, which if accepted, should result in the exclusion of the analysis of her breath samples. As well, the accused asserted that the Crown was unable to prove she was the operator of the conveyance on the night in question. Also, the accused made statements during the breath sampling procedure that if admitted, could assist the Crown in proving its case, especially in relation to proving she was the operator of the conveyance. The voluntariness of these statements was also challenged by the accused.

3At the conclusion of the evidence, Mr. Daley, with his usual candour, abandoned all Charter challenges except one; that the accused’s s. 10(b) rights were breached when the police failed to advise Ms. Power of her rights when she was detained prior to the Approved Screening Device (“ASD”) demand being made.

4The issue relating to the operator of the conveyance was also narrowed by the end of the trial. Mr. Daley again conceded the Crown had established the accused had occupied the seat of the conveyance normally occupied by the operator. The issue then was focussed on whether the accused had rebutted the presumption of operation as set out in s. 320.35 of the Criminal Code. This section and the definition of “operate” in s. 320.11 has updated and recast the previous “care or control” language that was used in drinking and driving offences prior to the most recent changes to the Criminal Code. The term “operate” is now used to include all aspects involving conveyances in relation to drinking and driving offences, including care or control. However, the prior caselaw and arguments that referenced care or control are still helpful and were referred to in this case.

5In relation to the voluntariness issue, the defence suggests the police ought to have provided the accused with her rights to counsel and a further caution when the Qualified Breath Tech (“QBT”) asked questions of her between the breath samples that touched on issues such as whether she was driving and whether she had been consuming alcohol. Not doing so, it is argued, would have left her with the belief that those questions were part of the breath sampling procedure and as such, she was legally obligated to answer them.

6The Crown called five witnesses; the Officer in charge, Raquel Cadilha, Officer Andrew Nicholson who also responded to the scene and the QBT, Officer Andrew Smith. Two civilian witnesses who were also present that night testified, Scott Kitchin, an employee of Sobeys who was working that night and George Hanson, who was in the parking lot in his truck that night. In the end, the credibility and reliability of the evidence of the witnesses was not challenged. That their evidence was factually accurate was not in issue, it was the legal implications that flowed from what they saw and heard that was in issue.

7The accused, as is her right, chose not to testify on any aspect of the trial, that being her Charter Application, the voluntariness voir dire, or the trial proper.

8For the reasons that follow, I have found that the accused’s Charter Application has failed, her statements to the police were voluntary and that the Crown has proven beyond a reasonable doubt she was the operator of the conveyance that night. As such, the analysis of the accused’s breath samples is admissible and conclusively prove she was operating the conveyance that night with an excessive BAC, and as such a finding of guilt will be made.

Facts

Facts

9Scott Kitchin was working as the produce manager at the Sobeys on February 8, 2020. At approximately 7:40 pm, another employee approached him and brought to his attention two female customers who were in the process of purchasing wine and who both appeared to be significantly intoxicated. They watched as these customers left the store and returned to a car in the parking lot. He went out to the car and by the time he arrived Ms. Power was about to get in the driver’s seat and her friend was getting into the passenger seat. He spoke to Ms. Power and told her he was not able to let her leave as she appeared to be intoxicated. He advised Ms. Power he would call a taxi for her instead but, Ms. Power declined the offer. He then told her she could either take a taxi or he would call the police. At this point Ms. Power said she would walk home and Mr. Kitchin said if she did, they would be periodically checking on her car.

10At this point Ms. Power and her friend walked to the McDonald's that shares the parking lot with Sobeys and went in and sat down. Mr. Kitchin went in shortly after them to tell them they had left the window down on their car and they said they didn’t care. Not long after, it came to Mr. Kitchin’s attention that Ms. Power and her friend had returned to the car and this time, when he went out, she was in the driver’s seat with the engine running. Also present then was another customer who had approached and convinced Ms. Power to get out of the car to speak to him.

11This other customer was George Hanson. He had also been to Sobeys that night and observed the first interaction in the parking lot between Mr. Kitchin, other Sobeys’ employees, and Ms. Power and her friend. He watched from his vehicle about 50 yards away as Ms. Power and her friend went to McDonald's and Mr. Kitchin and the other employees returned to Sobeys. He waited and said that as the Sobeys employees left, Ms. Power and her friend returned to the car from McDonald's. As they did, he approached the car and saw Ms. Power in the driver’s seat with the engine running.

12He stated that both Ms. Power and her friend appeared to be under the influence of alcohol, so he convinced Ms. Power to get out of the car and have a cigarette with him. She did, and within five minutes of doing so, the police arrived.

13The police by this time had received several 911 calls and as a result, OPP Officer Raquel Cadilha was dispatched to the Sobeys’ parking lot. The report was of a possible impaired driver. She was initially dispatched at 7:58 pm and was advised there was an intoxicated male driver getting in and out of a vehicle. As more calls and information came in, the information provided to Officer Cadilha became more detailed and accurate. She was later advised that it was in fact two females associated with a particular white sedan. As further information came in shortly before she arrived, Officer Cadilha was given a description for the driver of the sedan and where it would be located in the lot and that she was currently outside the vehicle having a cigarette.

14When she arrived at approximately 8:03 pm, Officer Cadilha located the white sedan where the callers said it was. There were a number of people near the vehicle, with a female on the passenger side and another female on the driver’s side. The person on the driver’s side matched the description of the driver provided to her. She approached the female on the driver’s side who turned out to be the accused, Ms. Power, and asked her what was going on. Ms. Power who was leaning against the car, replied she had just wanted to buy some wine. At this point Officer Cadilha asked Ms. Power if she had had anything to drink and Ms. Power replied she had a glass of wine. Officer Cadilha said it was windy at the time and she did not at first detect any odour of alcohol but then did detect a faint odour. She next asked who was driving and Ms. Power replied she was and that she “was fine.” Ms. Power then said both her and her friend had been drinking and had purchased a box of wine at Sobeys, which was visible to Officer Cadilha on the back seat of the car. Officer Cadilha stated she was now able to detect a stronger odour of alcohol on Ms. Power’s breath.

15At this point Officer Cadilha advised Ms. Power she would be making an ASD demand and given the number of people around the car and the somewhat chaotic scene, asked her to come with her to her cruiser for that purpose about 10 steps away. She took her to the passenger side of the cruiser. The door was open and the interior light was on which allowed Officer Cadilha to see Ms. Power’s face more clearly and she noticed it was flushed in colour. As the door also blocked some of the wind, Officer Cadilha stated the odour of alcohol from Ms. Power’s breath became even stronger.

16As a result of this information and observations, at 8:07 pm, Officer Cadilha read the formal ASD demand to Ms. Power. The ASD was prepared and it was explained to Ms. Power how to provide a sample. On her second attempt a good sample was obtained and registered a fail. As a result, she was arrested and cuffed to the rear. At 8:14 pm she was read her rights to counsel, at 8:16 pm she was read her caution, and at 8:17 pm she was read her breath demand.

17She was taken from the scene by Officer Cadilha and arrived at the OPP detachment at 8:21 pm. She was processed, lodged into a cell and a call was placed to duty counsel on her behalf. Duty counsel called back and Ms. Power spoke to her from 9:05 pm to 9:11 pm.

18After finishing her call with duty counsel, she was brought into the breath room and turned over to the QBT, Officer Andrew Smith. At 9:13 pm Officer Cadilha provided Officer Smith with her grounds. Officer Smith at this point reviewed with Ms. Power her rights to counsel but did not read them to her from his police issued card. He then made the breath demand and then read the primary and secondary cautions and ensured they were understood. He also advised Ms. Power answering any of his questions was voluntary and she was not obligated to do so.

19Officer Cadilha left the breath room and Officer Smith then began the breath testing procedure. After receiving the first sample, Officer Smith and Ms. Power remained in the breath room. It was apparent Ms. Power was upset and somewhat distraught, both by her predicament that night and by other personal issues she was going through at the time that she shared with Officer Smith.

20There was conversation between the two that was free-flowing and often Ms. Power would talk without prompting. However, during the wait time between samples, in addition to their conversation, Officer Smith asked Ms. Power a number of questions about whether she had consumed alcohol that night, what kind and if she had drove. Her answers to these questions were inculpatory. She admitted to consuming alcohol and admitted driving to Sobeys. Ms. Power though did refuse to answer one question, that relating to who the other person she was with that night.

21The results of the breath samples indicated Ms. Power had truncated BAC readings of 250 and 240 on the first and second samples respectively. She was then lodged back in the cell, the paperwork was completed and she was released later that night.

Issues

Issues

22As noted at the outset, the issues in this matter were narrowed by the trial’s end. The first issue is whether Ms. Power’s s. 10(b) Charter rights were violated by Officer Cadilha not advising her of them earlier in their interaction in the Sobeys parking lot and if they were, should the results of the breath samples be excluded pursuant to s. 24(2) of the Charter.

23The next issue is whether the Crown can prove the statements made by Ms. Power to Officer Smith during the breath sampling procedure were voluntary. If not, then they should not be admitted.

24The final issue is, although couched as a care and control issue, is more accurately now described as whether the Crown can prove Ms. Power operated the conveyance that night.

Analysis

Analysis

25With his usual candour, Mr. Daley conceded the argument that Ms. Power’s s. 10(b) rights were violated is not overly strong. I agree, I find Ms. Power’s s. 10(b) rights were not violated.

26Section 10(b) of the Charter requires police to inform persons of their rights to counsel upon arrest or detention. However, this right is not absolute. There will be cases where a person is detained but their right to counsel is suspended. Situations such as this, where police are conducting a roadside investigation into a potential drinking and driving offence is one such case.

27The Supreme Court decision in R. v. Orbanski, 2005 SCC 37, [2005] S.C.J. No. 37, is I find a complete answer to the Charter challenge of Ms. Power. In its materials, the Crown conceded Ms. Power was detained when Officer Cadilha approached her in the parking lot, requested her documentation and embarked on a focussed drinking and driving investigation of her. This triggered her rights to counsel pursuant to s. 10(b) of the Charter which Officer Cadilha did not provide to her until her arrest after producing a fail on the ASD. However, under the circumstances, her s. 10(b) rights were suspended during this time.

28Officer Cadilha was acting in accordance with her duties as a police officer that night. The information she considered and the measures she took at the side of Ms. Power’s car and at her cruiser which preceded the ASD demand, such as the 911 calls, her observations of Ms. Power, and the answers to the initial questions given by Ms. Power, were all reasonable in the circumstances and within the execution of her duties.

29As such, notwithstanding her detention in these circumstances, Ms. Power’s s. 10(b) rights were suspended both during this time before the ASD demand was made and after it as well until the completion of the ASD breath sampling procedures and her the subsequent arrest. (See: Orbanski, paragraphs 3, 33 and 52.)

30Given her rights were not violated, the Charter Application is dismissed and the results of the analysis of Ms. Power’s breath samples by the approved instrument are admissible in the trial proper.

31Turning to the next issue, I find the Crown has also proven beyond a reasonable doubt that the statements made by Ms. Power to Officer Smith during the breath sampling procedure were voluntary. Ms. Power’s challenge to the voluntariness of these statements focusses on the questions asked of her by Officer Smith between the first and second breath sample. These questions were, if answered, potentially highly inculpatory as they were directed to such matters of whether she was driving, whether she was drinking, when she last drank and how much.

32She argues Officer Smith, before embarking on this line of questions, ought to have again advised her of her rights to counsel and cautioned her. In support of this argument she points to an instruction found on the forms Officer Smith was reading the questions from that stated an officer should consider again providing the person with their rights to counsel and a caution. To not advise them of their rights and caution at this point in the process the argument goes, could leave the person under the impression they are required to answer these questions as part of the breath sampling procedure.

33Officer Smith admitted he did not advise Ms. Power of her rights or caution her again at this point in the process. I find that even though he failed to do so, that Ms. Power’s statements were still voluntary. I find that all the police involved that night treated Ms. Power very fairly and compassionately and provided her with all the information they were legally obligated to do. Officer Cadilha advised Ms. Power of her rights to counsel and cautioned her upon her arrest. Back at the detachment, she ensured Ms. Power was given access to duty counsel’s advice in private. Immediately upon her call with duty counsel ending, and while the information she just received would still be fresh in her mind, Ms. Power was taken directly into the breath room to begin the breath sampling procedure.

34Once in the breath room, although he did not read Ms. Power her formal rights to counsel again, Officer Smith explained it to her, he cautioned her again and furthermore, he made sure to tell her she was not obligated to answer any of his questions. In these circumstances, the police were not required to do anything more. Mr. Daley argued other police services do give the rights to counsel and cautions again at the point in the process where he says Officer Smith should have, and he argues that it is best practices to do so. Whether it is done by other police services and whether it can be described as a better or “best” practice I cannot say, but the police are not obligated to follow this practice and not doing so, even if it can be said to be a better practice, does not necessarily make any statement subsequently given, involuntary.

35Officer Smith testified before starting the breath sampling, he explained her rights to Ms. Power again, cautioned her again, and advised her she was not obligated to answer her questions. He then asked her if she understood and she said she did. Based on this evidence and based on the fact that Ms. Power did refuse to answer one question concerning the identity of her friend, I find Ms. Power understood she was not obligated to answer any question and when she did so, she did so voluntarily. As such, the statements made by her in the breath room are admissible at trial.

36The last issue is whether the Crown has proven Ms. Power operated the conveyance that night. For the reasons that follow, I find the Crown has proven she did. In the statements she made to Officer Smith that night she admitted to operation, but even without those statements, the evidence of her operation of the car that night was overwhelming and proved her guilt beyond a reasonable doubt.

37This issue was argued using the language of “care or control” that was commonly used prior to the most recent changes to the drinking and driving sections of the Criminal Code. Prior to these changes a person could be convicted if while Impaired by alcohol or while having an excessive BAC they either operated or had care or control of a motor vehicle. Now, as noted earlier, the definition of “operate” in s. 320.11 includes to be in “care or control.” Given that, I will use the term operate in these reasons.

38In s. 320.35 of the Code, if a person is proved to be occupying the seat ordinarily occupied by the operator of the conveyance, they are presumed to have been operating the conveyance. This presumption is rebuttable by the accused though by establishing they did not occupy that seat for the purpose of putting the conveyance in motion.

39In this case I find the Crown is entitled to rely on this presumption as there is no evidence capable of rebutting it.

40As noted, the statement of Ms. Power is sufficient to prove operation. She admitted to Officer Smith, she drove to Sobeys, purchased wine, and intended to drive back home. Mr. Daley argues given her BAC that night, I ought to find Ms. Power’s statements are not credible nor reliable. I do not accept this. The evidence of both Officers Cadilha and Smith was that Ms. Power understood their directions that night and responded appropriately to everything asked of her and all directions given to her. This evidence is confirmed by watching the breath room and other videos where there is nothing to indicate Ms. Power was not able to understand or reliably relay information to the officers that night. I find she was both credible and reliable that night and her statements to Officer Smith were truthful.

41Even without the statement though, the evidence that Ms. Power operated the car that night is overwhelming. Mr. Daley has conceded the Crown has proven she occupied the driver’s seat while the engine was on. This is sufficient to trigger the presumption of operation in s. 320.35. Ms. Power argued, as Mr. Kitchin noted, the window in the car had been down while it was parked and she and her friend were at McDonald's. From this it was argued that Ms. Power perhaps sat in the car and started it only to get warm and not to put it in motion. If this is accepted, then this could be evidence capable of rebutting the presumption.

42This evidence alone I find on a balance of probabilities, is not sufficient to rebut the presumption. It was early February and at least in this part of Canada, it is generally cold out. Cars will be cold whether a window is down or not. The first step to putting a car in motion is usually to start it. Here there was no other evidence pointing away from an intention to put the car in motion when Ms. Power entered and started it. To find she may have started it for any other reason other than putting it in motion, based solely on the window being down, would be pure speculation. In any event, the evidence was Ms. Power and her friend had been sitting inside McDonald's. If they wanted warmth, while they waited for an alternative means of getting to where they were going, it seems most logical that is where they would have stayed. As such I find Ms. Power has not rebutted the presumption.

43This alone is also sufficient for a finding of guilt but even had I found that this evidence rebutted the presumption, the Crown can still prove she occupied the driver’s seat with the intention to put the car in motion. In this case I find the evidence leads to the inescapable conclusion that was what Ms. Power intended.

44There was a car in the Sobeys’ parking lot associated to her. She was inside the store, made her purchases and returned immediately to this car. She was attempting to enter the driver’s seat of the car when she was intercepted by Mr. Kitchin. He told her he believed she was not in a state to drive and offered to call her a taxi. She refused this offer and said she would walk home. Instead of walking home, she went to the McDonald's and went inside. She waited in McDonald's until Mr. Kitchin and the other Sobeys’ employees left, at which time she immediately returned to her car, got in and started the engine. Her intentions I find in these circumstances were clear, she was waiting for the Sobeys employees to leave and she was going to drive home. She was only thwarted again when Mr. Hanson stopped her. In all these circumstances I find the only reasonable conclusion from this evidence is that she entered the car and started it with the intention to drive. As such on this basis as well I am satisfied the Crown has proven beyond a reasonable doubt, she operated the conveyance while her BAC exceeded the legal limit.

Conclusion

Conclusion

45For all the foregoing reasons, I find the accused’s Charter application has failed and as such the analysis of her breath samples is admitted. Based on that analysis and the fact I find she was the operator of the conveyance that night I am satisfied the Crown has proven the charge beyond a reasonable doubt and a finding of guilt will be made.