R. v. Ackers, 2025 ONCJ 380

ONTARIO COURT OF JUSTICE

DATE: 2025 06 05
COURT FILE No.: Brockville 24-19101690

BETWEEN:

HIS MAJESTY THE KING
— AND —
ANDREW ACKERS

Before Justice J.R. Richardson
Heard on March 24, 2025
Reasons for Judgment released on June 5, 2025

Amelia Wilding................................................................................... Counsel for the Crown
Stephen Bernstein...................................................................... Counsel for the defendant

Introduction

1The accused is charged that he did, on or about the 20th day of September, 2024, in the Township of Rideau Lakes, in the County of Leeds:

a) Fail or Refuse to Provide a Sample of his breath into an approved screening device contrary to section 320.15(1) of the Criminal Code; and
b) Operate a Motor Vehicle while he was impaired by alcohol or a drug, or both, contrary to section 320.14(1)(a) of the Criminal Code.

2The Crown proceeded summarily.

3The issue in this case is whether the police had a reasonable suspicion to demand Mr. Ackers to provide a sample of his breath into a roadside screening device. If they did, it is conceded that he refused to provide a sample. If they did not, the demand was illegal and he should be found not guilty of the refusal charge.

4Prior to final submissions, the Crown invited me to dismiss the impaired driving charge. I agreed that based upon the evidence that I had heard, there was an insufficient basis for finding that Mr. Ackers was guilty of this offence beyond a reasonable doubt.

Place Where this Incident Took Place

5This case involves an incident which took place near the village of Lombardy. Lombardy is part of the Township of Rideau Lakes. It is located near the intersection of King’s Highway 15 and Leeds and Grenville Counties Road No. 1 (which is also referred to as Rideau Ferry Road).

6Having travelled this area many times over the years, I know that this is a predominantly rural area, just south of the Town of Smiths Falls.

Evidence of John Ferguson

7John Ferguson is a 52-year-old man who lives in Lombardy, Ontario. He is employed as a repairman for an industrial/commercial services company. He has a Grade 12 education.

8On September 20, 2024, at approximately 12:45 am, he was outside his residence on Blacksmith Road in Lombardy enjoying a campfire with his wife and his friend.

9He heard a car go off the road and enter the ditch near King’s Highway 15.

10Upon hearing the collision he ran across the yard and through a neighbour’s yard toward the intersection of Rideau Ferry Road and Highway 15. He called 911 as he was running.

11He estimated that it took him about 30 seconds to get from his yard to the scene of the collision.

12Upon arrival, he saw a man opening the door of the vehicle and getting out of the area of the driver’s seat.

13He asked the man if he was ok. The man said that he was fine. Mr. Ferguson then advised the 911 operator, with whom he was still on the phone, that he did not need an ambulance to attend.

14Mr. Ferguson did not see anyone else in the vehicle. He acknowledged, however, that he did not look in the back seat of the car.

15Mr. Ferguson indicated that when the man stepped out of the vehicle, he “seemed to be in alright shape.” In cross-examination, Mr. Ferguson stated that the man appeared “unharmed” and he may have been “shaken up”. He added, “That’s all I could get a sense of”.

16Mr. Ferguson was making his observations from between ten and 15 feet.

17Mr. Ferguson could not recall what the man was wearing.

18He took two photos that were introduced into evidence.

19Exhibit 1 depicts a photo of a Tesla car in the ditch at the intersection of King’s Highway 15 and County Road 1.

20Exhibit 2 depicts a close-up photo of the Tesla in the ditch.

21Exhibit 3 depicts a Google map of Lombardy. The incident took place at the intersection of County Road 1 (Rideau Ferry Road NOT Anglican Church Road) and King’s Highway 15 which is located in the bottom third of the photograph. Mr. Ferguson stated that his residence was on Blacksmith Lane which runs off the roadway that leads from County Road 1 (in approximate area of (“Rideau Vapes” to Union Cemetery on the map). The land in the triangle between that roadway and the intersection of County Road 1 and Highway 15 is the land that he ran through to get to the scene of the accident.

22In cross-examination, Mr. Ferguson stated that he took the photos as he was leaving the scene. The friend that he had been at the campfire with had arrived by car, and her car was visible in Exhibit 1.

23Mr. Ferguson recalled that as he was speaking with the man, the man was trying to call a tow truck. He said that there was “not a whole lot of talking” between him and the man. He added that once he confirmed that the man was alright, he left the scene. He estimated that he was in the presence of the man “two or three minutes… tops”.

24In cross-examination with respect to the tow truck, Mr. Ferguson stated that the man was not actually on the phone trying to call a tow truck, but he told Mr. Ferguson that was what he wanted to do.

25With respect to the location where the collision took place, Mr. Ferguson stated, referring to a bend in Country Road 1 just before Highway 15, “I have lived there all my life. I have seen many cars miss that turn.”

Evidence of Teresa Robinson

26Teresa Robinson is the friend who was enjoying the campfire with Mr. Ferguson and his wife. She is 47 and she also lives in Lombardy. She works at a group home with adults who have intellectual disabilities. She has a college education.

27Ms Robinson stated that she lives on Anglican Church Road, which she described as approximately two minutes away from the Ferguson residence on Blacksmith Lane. Her home is located on the other side of Highway 15.

28She recalled that before the fire, she had got off work at about 9:30 pm.

29She estimated that the incident took place sometime between 11:30 pm and 12:30 am. She stated that they were just wrapping up the campfire. She recalled having her hand on the door of her car to leave when she heard a “terrible crushing sound.” Immediately before the crash, she was talking with the Fergusons about a relative who had just got his driver’s licence and they were also making arrangements to go for a walk the next day.

30Ms Robinson recalled that upon hearing the crash, Mr. Ferguson ran through the field. She got in her car and called 911. She drove toward the crash.

31When she got to the area of a collision, she recalled that a man came out from the side of the vehicle. She recalled that he came “from the ditch”. She did not see him come out of the car involved in the collision. She recalled that he had his hands on his head. He told her he was calling the tow truck. He was “on the phone” but she did not hear the conversation.

32She told the man that she was calling 911. The man told her that there was no need for that. She told the man, “Too late bud.”

33She recalled being told by the 911 operator that she was free to leave the scene. Before leaving, she turned around and observed the man on the side of the road. He had a backpack that he was doing something with. He had one shoe off and one shoe on.

34Ms Robinson had a brief conversation with the man, and he said that he was ok. She also recalled that Mr. Ferguson was there before she arrived, and he was talking with the man.

35When shown exhibit 1, the photo that Mr. Ferguson took, she indicated that the car in the photo could be hers. She recalled that her car was further back from the stop sign than is depicted in the photo.

36She recalled that the man was dressed in jeans and a t-shirt.

37After the 911 operator told her she could leave, she drove up Rideau Ferry Road (County Road 1) a short distance.

38She then turned around and returned to the Ferguson residence. She recalled seeing the man “on a mission to leave”. She stated, “He was hustling” and he was “moving very fast”.

39Ms Robinson stated that when the police car arrived, the man was gone. She recalled seeing him run up Rideau Ferry Road (County Road 1).

40She recalled having an interaction with the police officer while at the Ferguson residence between 15 and 20 minutes after she got back from the crash scene.

41As she was driving to her residence, she saw tow trucks at the scene. She also saw a taxi at a red church which she identified as being just north of the village on Highway 15. She recalled seeing that the taxi had a light on. She said that she saw the taxi there “a good hour” after she saw the vehicle in the ditch.

42She conceded that she did not see anyone getting into the taxi. Given the hour of the day, it was dark outside. She thought it was “very odd” that there would be a taxi in the area of the church on a Friday night. Upon seeing the taxi, she performed a u-turn and went back to the scene. She told the police about seeing the taxi at the church.

Evidence of Constable Dylan Dejong

In-Chief

43Constable Dylan Dejong has been a member of the OPP since February 2024. He had no prior experience as a police officer before he joined the OPP. He stated that he was involved in two or three investigations pertaining to impaired driving before his involvement in this case.

44He was operating a marked Ford Explorer police car and dressed in his full uniform. His partner that evening was Constable Hewlett.

45He recalled that on September 20, 2024 at 12:38 am, he was dispatched to a motor vehicle collision at Highway 15 and Rideau Ferry Road (County Road 1). En route, he was advised by his dispatch that the vehicle was in the ditch and the driver sounded intoxicated.

46En route, he was later advised by dispatch that an involved individual was dressed in light blue jeans with a beige shirt. He had short, shaggy blonde hair. He had a backpack. He was then advised that the individual had left the area of the collision and was walking towards Blacksmith Road.

47He arrived on scene at about 1:00 am.

48Upon arrival, he observed a Tesla with Ontario plate GVWM 615 in the ditch at the intersection of Rideau Ferry Road and Highway 15. No one was at the scene when he arrived.

49He noted the presence of a child seat in the rear of the Tesla. The airbags had been deployed.

50On the night in question, he was wearing a body-worn camera. The footage from the camera at 1:03 am showing the condition of the vehicle was played in Court and marked as Exhibit 4.

51He confirmed through dispatch that the vehicle was registered to Mr. Ackers. A copy of the ownership was filed as Exhibit 5.

52He decided to patrol the area. He drove down the road and did not see anyone. He then turned around and returned to his brother officer at the scene. While there, he was approached by Ms Robinson. She told him that she observed the same male entering a taxi down the road.

53He left the scene to drive toward the taxi. He stopped the taxi. He saw an individual who matched the description of the person he was looking for. He asked the individual if his name was Andrew. The man confirmed that it was. He asked the man to step out of the taxi.

54Footage from Constable Dejong’s body worn camera was played in Court to depict what took place at the roadside. It was ultimately marked as Exhibit 6. The following was depicted on the body worn camera:

a) Constable Hewlett asked the man if his vehicle was in the ditch. The man confirmed that it was.
b) Constable Hewlett then asked the man why he was in the taxi. The man indicated that he was going back to town. He stated that he had called a tow for the vehicle.
c) At this point Constable Hewlett asked, “Are you going to do a demand?” Constable Dejong replied, “Yep”. The time according to the video was 1:13 am.

55The Crown asked Constable Hewlett what his grounds for making the demand were. He stated that he did not have “full grounds”. He stated that he had a reasonable suspicion that the man was impaired due to the totality of what had occurred. The male was no longer at the scene. He recalled the man’s eyes were glossy.

56Constable Dejong stated that Constable Hewlett also had grounds. Constable Hewlett did not immediately advise what his grounds were but Constable Dejong implied from Constable Hewlett asking, “Do you want to do a demand?” that Constable Hewlett also had grounds.

57The following then took place:

a) He proceeded to his cruiser to grab the screening device and fresh mouthpiece.
b) He read the approved screening device demand to the man from his duty card. The man understood. He told the man to keep blowing into the device until he told him to stop.
c) The man did not want to provide a sample. Constable Hewlett told the man that if he did not comply with the demand he would be arrested, “So you might as well do this test”.
d) Constable Dejong told the man that he was being asked for the sample because his vehicle was just found in the ditch and now he is “over here”. He told the man that people saw him running away from the scene. He told the man that they just wanted to make sure that there was no alcohol in his system.
e) Constable Dejong then said, “Do you want to provide a sample?” The man indicated that he did not consent. Constable Dejong told him that he was going to be arrested.
f) He and Constable Hewlett proceeded to arrest and search the man.
g) Constable Dejong found a car key. The man confirmed that was his car key.
h) Constable Hewlett asked the man if he was the only one in the vehicle. The man confirmed that he was.
i) The man was lodged in Constable Dejong’s cruiser. Once lodged into the cruiser, Constable Dejong advised the man that he was under arrest for “refusing a demand on the ASD” and proceeded to read him his rights.
j) The man said he wanted to speak to a lawyer as soon as possible. Constable Dejong told him that he could not let him speak to a lawyer right away because of his privacy. He then advised him that he would let him speak to a lawyer as soon as they got back to the detachment.
k) He then read the man the caution. The man understood his rights and his caution.

58At this point, the Crown paused playing Exhibit 6 and came back into the courtroom and asked Constable Dejong, “What suspicion or belief did you form at that time?”, referring to the point at which Constable Hewlett asked him, “Do you want to do a demand?” Constable Dejong repeated that:

a) The witnesses told dispatch he may be intoxicated.
b) He left the scene of the motor vehicle collision.
c) He had glossy eyes.

59He stated that he had suspicion that he may be impaired. That’s why he agreed when Constable Hewlett asked him about “doing the demand”.

60Constable Dejong stated that he charged Mr Ackers with Impaired Operation, after speaking with Constable Hewlett because he did not agree to testing for alcohol. Constable Dejong could not advise when he informed Mr. Ackers that he was going to be charged with Impaired operation.

61He also charged Mr. Ackers with Fail to Remain and Fail to Report under the Highway Traffic Act. He was charged with those offences because he did not advise police of the collision and he failed to remain at the scene.

62Constable Dejong indicated that after Mr. Ackers was given his rights to counsel and caution, they returned to the scene. He stated that they did not know if they were going to take Mr. Ackers to the detachment or release him at the roadside.

63They decided to take Mr. Ackers to the detachment because he did want to return to the area at a later date to provide his fingerprints. They took Mr. Ackers to the Brockville detachment. They departed the scene at 2:12 am and arrived at 2:36 am. Once at the detachment, Mr. Ackers spoke with duty counsel at 2:55 am. His fingerprints were taken at 3:09 am and he was ultimately released at 4:15. A taxi picked him up. Constable Dejong did not know where Mr. Ackers went from the detachment.

64The Crown then played the last three minutes of Exhibit 6. The only thing of note was that Mr. Ackers indicated that he had cannabis and edibles in his backpack. The video ended at 1:21.

65The Crown asked Constable Dejong if he gave Mr. Ackers another chance to provide a sample of his breath into the Approved Screening Device. He indicated that he did.

66The Crown then played another video from Constable Dejong’s body-worn camera (Exhibit 7) which revealed the following:

a) Constable Dejong told Mr. Ackers that “we got you fleeing from the scene” and that “not accepting the breath demand” was the same charge as Driving Impaired.
b) He told Mr. Ackers that he thought it was more than likely that if he took the ASD, he would not be impaired but that is “entirely up to you”.
c) He added, “I don’t know if you want to do the ASD, or if you are still saying “no I don’t want to”, because it is going to be about the same charge as an Impaired charge by refusing.”
d) Mr. Ackers said, “So, I’m open, as I said”.
e) Constable Dejong said, “So you don’t want to do the ASD?”
f) Mr. Ackers said, “No.”
g) Constable Dejong asked Mr. Ackers if he took any marihuana.
h) Mr. Ackers said, “No.”

67Constable Dejong said he had paperwork to do and he told Mr. Ackers that he was going to be charged with Impaired Operation, Refusal, Fail to Remain and Fail to Report.

68After the video was played, the Crown asked Constable Dejong why he gave him the choice to give a sample again. He stated that he wanted to make sure that Mr. Ackers understood what he was getting into by refusing to provide a breath sample.

69Constable Dejong indicated that Mr. Ackers had not given any indication that he did not understand. He stated, however, that sometimes people don’t understand but say they do. For this reason he went over it one more time.

70The Crown asked whether the Impaired charge was by alcohol or drug. Constable Dejong indicated “both”. He stated that he did not give a demand for a Drug Recognition Expert.

Cross-Examination

71Defence counsel asked Constable Dejong about a portion of Exhibit 7 that was redacted. He recalled that the portion that was redacted was a portion that talked about the charges under the Highway Traffic Act.

72Constable Dejong agreed that he was in charge of the roadside demand portion of the investigation.

73With respect to the observation of glossy eyes, he agreed that people can have glossy eyes for a number of reasons.

74Defence counsel asked whether Constable Dejong agreed that the best indicator of consumption of alcohol was the smell of alcohol. The officer replied, “Per se yeah”. When asked whether there was any smell of alcohol, Constable Dejong stated, “Not from where I was standing.” He stated that he was not standing as close to Mr. Ackers as Constable Hewlett. He therefore did not detect the odour.

75Defence counsel asked whether Mr. Ackers was ever asked if he had been drinking. Constable Dejong replied, “Not off the top of my head.”

76Defence counsel then directed Constable Dejong to Exhibit 6, where at the time of the making of the first demand to provide a sample into the screening device, he told Mr. Ackers, “We want to make sure that there is no alcohol in your system”.

77Constable Dejong agreed that the reason for making the demand was that the vehicle was found in the ditch and Mr. Ackers was fleeing the scene. He also agreed that he wanted to make sure that there was no alcohol in Mr. Ackers’ system.

78Constable Dejong agreed that Mr. Ackers was “totally cooperative” and responsive to all the requests that the police made. He also agreed that Mr. Ackers had no trouble speaking with him.

79Constable Dejong indicated that Mr. Ackers told him that he had the key to his car in his pocket but it turned out to be an air pod. He could not recall whether a car key was ever found.

80He agreed that a Tesla is started with an app or a credit card “key”, as opposed to a typical car key.

81Constable Dejong denied speaking with anyone on scene before he spoke with Mr. Ackers. He agreed that the source of his information was his dispatcher and Constable Hewlett, who had spoken to witnesses.

82He stated that both officers made the decision to lay the Impaired Driving charge as well.

83He stated that he did not know whether Mr. Ackers was impaired by alcohol or a drug. He recalled that they found cannabis edibles in Mr. Ackers’ backpack. They believed that if he was not impaired by alcohol he may have been impaired by a drug. He repeated his evidence in-chief that Mr. Ackers was asked whether he had taken any of the edibles and he said, “No”.

84Defence counsel asked Constable Dejong if he would normally just do the roadside because you really don’t know if somebody is impaired by alcohol or a drug. Constable Dejong indicated that sometimes that was true, but in this case, they had a suspicion.

85Defence counsel asked Constable Dejong his grounds for the impaired by drug. Constable Dejong said that they found edibles in his backpack and that was his grounds. Defence counsel clarified Constable Dejong’s previous evidence that Mr. Ackers indicated that he had not taken any of the edibles on the day in question.

Evidence of Constable Hewlett

In-Chief

86Constable Hewlett testified that he has been a member of the OPP since September 2021.

87He was working a 7 pm to 7 am shift on September 20, 2024. His partner was Constable Dejong.

88He was operating a fully marked police car and dressed in full uniform. Prior to this incident, he had experience with between 20 and 30 impaired driving investigations. This case was the first time he had given evidence in criminal court.

89He recalled that at 12:40 am, he was dispatched to a motor vehicle collision at the intersection of Highway 15 and Rideau Ferry Road (County Road 1). He stated that once he got to the area, he actually passed the scene because he did not see the Tesla down in the ditch.

90He drove to get more information from the complainant at an address on Blacksmith Road.

91He spoke with Teresa Robinson. She advised that the vehicle was in the ditch. When she was at the scene, the driver was out of the vehicle. She was concerned about whether he was the only one in the vehicle. She also observed that he may be intoxicated. He had made arrangements for a tow.

92Ms Robinson gave a description of the man: shaggy, dirty blonde hair, blue jeans, beige t-shirt and a backpack. She estimated he was five feet, six inches tall.

93After receiving this information, he and Constable Dejong patrolled over Rideau Ferry Road and a nearby park area without success. They then returned to the intersection and observed the Tesla in the ditch. Their time of arrival was 1:15 am.

94He opined that before the crash, the Tesla had been travelling on Rideau Ferry Road. He stated that it was in the west ditch. He observed that the airbags were deployed. He recalled that there was a baby seat in the rear.

95Constable Hewlett stated that the Tesla was searched by Constable Dejong who did not observe any occupants.

96They received some information that a tow company had received a call to attend to remove the vehicle. The tow company advised that the caller was Andrew Ackers. He provided a phone number.

97He recalled that while they were at the intersection, Ms Robinson came to the scene and advised that she saw a man getting into a taxi just east of where they were located. He and Constable Dejong got in their cruisers and went in the direction of the taxi. He recalled seeing an orange taxi light on the roof of the vehicle.

98He and Constable Dejong stopped the taxi.

99The Crown played footage from Constable Hewlett’s body-worn camera (Exhibit 8) the content of which was largely identical to Constable Dejong’s body worn camera footage (which is summarized above at paragraph 54).

100Constable Hewlett stated that the man’s eyes were red and glossy. His description matched the description given by Ms Robinson. His shoes and jeans were wet.

101The officer stated that “given the totality of the situation” he and Constable Dejong decided to read the demand for the roadside screening device.

102He also detected an odour of an alcoholic beverage on the breath of Mr. Ackers. He stated that he made this observation at 1:14 am.

103The Crown then played more footage from Constable Hewlett’s body worn camera, which was largely identical in content to Constable Dejong’s body worn camera footage, (which is summarized above at paragraph 57).

104Constable Hewlett indicated that he believed Mr. Ackers understood the demand because he nodded his head when it was read to him. He allowed, however, that he was focused on Mr. Ackers’ hands.

105Constable Hewlett stated that the accused was charged with “Refusal” and “Fail to Remain”, the latter presumably under the Highway Traffic Act as opposed to the Criminal Code. Constable Hewlett denied being part of the decision to charge Mr. Ackers with the impaired driving count.

106The Crown asked Constable Hewlett what his rationale was for giving Mr. Ackers a “second chance”. He stated that it was just to reiterate the consequences of the refusal.

107After Mr. Ackers was arrested, Constable Hewlett returned to the scene of the collision. At 2:03 am, he requested the attendance of a taxi to take Mr. Ackers to Bon Echo Provincial Park.

108Mr. Ackers then decided that he wanted to attend at the police station with the officers to be fingerprinted, rather than have to return at a later date for that purpose.

109Constable Hewlett recalled having a conversation with Mr. Ackers expressing concern about the presence of the child seat and asking whether there was anyone else in the vehicle. Mr. Ackers confirmed that he was the only one.

Cross-Examination

110Constable Hewlett agreed that when Constable Dejong read the demand and arrested Mr. Ackers for Refusal, he was standing “shoulder to shoulder” with him. He agreed that Constable Dejong was in a position to make the same observations he made, including the smell of alcohol.

111Constable Hewlett stated that he told the Court everything that he was told by Ms Robinson and he did not leave anything out.

112Constable Hewlett stated that the demand for the approved screening device was used because there was a reasonable suspicion “of impairment”. He stated that Mr. Ackers was not charged with Impaired Operation “from the get-go” because the police did not have the grounds to lay such a charge.

113Defence counsel asked Constable Hewlett if he asked Mr. Ackers if he had been drinking. Constable Hewlett stated that he did not recall. He confirmed, after checking his notes, that he did not note asking Mr. Ackers that question.

114Defence counsel asked Constable Hewlett if he told Constable Dejong about the smell emanating from Mr. Ackers. Constable Hewlett stated that Constable Dejong was close to him, inferring that he believed that Constable Dejong would have made that observation.

115Constable Hewlett added that he observed the glossy eyes and detected the odour on Mr. Ackers’ breath. He stated that the demand was read shortly after that. He agreed that he and Constable Dejong did not discuss anything at that point and Constable Dejong decided to make the demand.

Dismissal of the Impaired Driving Charge

116Prior to making submissions, the Crown invited me to dismiss the Impaired Driving charge on the basis that the evidence that I heard was not sufficient.

117I agreed with this submission and dismissed the charge. It was clear to me that there was no basis for the police to have reasonable grounds to believe that Mr. Ackers was impaired by alcohol or a drug. I therefore could not have any basis for finding beyond a reasonable doubt that he was guilty of that charge.

Crown Submissions

118Crown counsel argued that the following grounds set out by Constable Dejong made out a reasonable suspicion:

a) There had been an accident where a vehicle was in the ditch;
b) Mr. Ackers was the owner of the vehicle;
c) Police dispatch advised that witnesses saw a man getting out the driver’s area of the vehicle;
d) Police dispatch advised that witnesses thought that the man was intoxicated;
e) The man ultimately left the scene;
f) A short while later, a witness saw a taxi. The witness advised police that the man was getting into the taxi;
g) Police stopped the taxi;
h) Mr. Ackers was in the back of the taxi;
i) Mr. Ackers admitted to driving the vehicle;
j) Constable Dejong observed Mr. Ackers’ eyes to be glossy; and
k) Constable Hewlett detected an odour of alcohol.

Defence Submissions

119Defence counsel argued that Constable Dejong did not have a reasonable suspicion because the constellation of facts relied on by the officer did not include any indicia with respect to the presence of alcohol.

120Defence counsel submitted that the fact that Mr. Ackers had been in the accident, left the scene and was stopped while taking a taxi away from the scene was insufficient to make the demand. Defence counsel reminded me that when Constable Dejong summed up his grounds for making the demand to the accused, he referred to the wanting “to make sure that Mr. Ackers did not have alcohol in his system.”

Analysis

The Statutory Framework

121Section 320.14(1)(a) of the Criminal Code states:

Everyone commits an offence who
(a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;

122Section 320.15(1)(a) of the Criminal Code states:

Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.

123Section 320.27 of the Criminal Code states:

(1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:
(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;
(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;
(c) to immediately provide the samples of a bodily substance that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.
(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

124In this case, it is common ground that Constable Dejong was proceeding under section 320.27(1) when he made the demand at issue in this case.

125The first issue I must decide, therefore, is whether Constable Dejong had a reasonable suspicion for making the demand.

126It is well established that if he did not have a reasonable suspicion, Mr. Ackers had the right to refuse and he is entitled to an acquittal.

The Authorities with Respect to the Meaning of Reasonable Suspicion

127What is a reasonable suspicion? How is it different from reasonable grounds?

128Two Supreme Court of Canada cases set out the basic requirements for reasonable suspicion: R. v. Chehil, 2013 SCC 49 and R. v. MacKenzie, 2013 SCC 50.

129In Chehil, Justice Karakatsanis set out the following principles with respect to the reasonable suspicion:

a) Reasonable suspicion must be based on objectively discernable facts which are subjected to exacting judicial scrutiny which must account for the totality of the circumstances.
b) Reasonable suspicion is something more than mere suspicion and something less than reasonable and probable grounds.
c) Reasonable suspicion engages reasonable possibility not reasonable probability.
d) Reasonable suspicion must be assessed against the totality of circumstances. There must be a constellation of objectively discernable facts that give the investigating officer reasonable cause to suspect. This inquiry is fact-based, flexible and grounded in common sense and practical, everyday experience.
e) Reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. 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.
f) Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion; “[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable”. This is self-evident.
g) The obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations. In conducting this inquiry to ascertain whether reasonable suspicion was present, the court will assess the circumstances the police were aware of at the time of the execution of the search. However, it is not permissible for the reasonable suspicion inquiry to assess circumstances learned after the execution of the search.
h) The objective facts must be indicative of the possibility of criminal behaviour. Police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion. However, the evidence need not in itself consist of unlawful behaviour, nor need it necessarily be evidence of a specific known criminal act.
i) A nexus must exist between the criminal conduct that is suspected and the investigative technique employed.
j) The requirement for objective and ascertainable facts as the basis for reasonable suspicion permits an independent after-the-fact review by the court and protects against arbitrary state action.
k) Rigorous judicial scrutiny is an independent review that ensures that the suspicion relied on by the police is supported by factors that are objectively ascertainable. The constellation of facts must be based in the evidence, tied to the individual, and capable of supporting a logical inference of criminal behaviour.
l) An officer’s training and experience may provide an objective experiential, as opposed to empirical, basis for grounding reasonable suspicion. However, this is not to say that hunches or intuition grounded in an officer’s experience will suffice, or that deference is owed to a police officer’s view of the circumstances based on her training or experience in the field. A police officer’s educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard.

130In the companion case of MacKenzie, Justice Moldaver tackled the difficulty associated with judging the objective reasonableness of facts which may be equivocal or have an innocent explanation. He noted at paragraphs 71-73 as follows:

a) Reasonable suspicion must be assessed against the totality of the circumstances. Characteristics that apply broadly to innocent people and “no-win” behaviour cannot on their own, support a finding of reasonable suspicion, although they may take on some value when they form part of a constellation of factors.
b) Exculpatory, common, neutral, or equivocal information should not be discarded when assessing a constellation of factors. However, the test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocent explanation. We are looking here at possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met. If not, the inquiry is at an end.
c) Assessing whether a particular constellation of facts gives rise to a reasonable suspicion should not — indeed must not — devolve into a scientific or metaphysical exercise. Common sense, flexibility, and practical everyday experience are the bywords, and they are to be applied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer.

131It is well established that these principles with respect to what constitutes a “reasonable suspicion” and how trial judges should apply them, apply to cases under section 320.27 of the Criminal Code: see R. v. Flight, 2014 ABCA 185; R. v. Morris-Rainford, 2020 ONCJ 447; R. v. Thibodeau, 2023 ONCJ 308.

The Failure of Constable Dejong to Avert to the Correct Statutory Requirements for Demanding a Sample into the Approved Screening Device

132Defence counsel made submissions to the effect that, repeating what Constable Dejong told the accused, the words “we want to make sure you are not impaired”, was not sufficient and that accordingly Constable Dejong did not have adequate grounds.

133I agree that this was a sloppy error on Constable Dejong’s part. The language of the statute authorizes him to demand a sample of the accused’s breath where he has a reasonable grounds to suspect that the accused “has alcohol in their body”.

134I note that the demand which Constable Dejong read from the card, which was read into the record, was the correct demand. Constable Dejong simply did not paraphrase it properly when he was trying to explain the basis for making it to Mr. Ackers.

135It is well established that an officer making a demand is not in error if the officer fails to resort to the exact wording of the statute: R. v. Grant, 2014 ONSC 1479.

136In that situation, it is up to the trial judge to determine whether:

a) The grounds relied on by the officer were subjectively held; and
b) Those grounds passed muster as being objectively reasonable.

137For reasons I set out below, I find that nothing turns on this argument.

Must there be an Odour of Alcohol for there to be a Reasonable Suspicion?

138The law is well settled that an odour of an alcoholic beverage is not necessary to satisfy a reasonable suspicion that the accused has alcohol in his body. See R. v. Singh, 2006 SCC 17; R. v. McLean, 2021 ONSC 34.

Application of the Principles to the Facts of this Case

139In this case, although Constable Hewlett smelled an odour of alcohol emanating from the accused’s breath, and he was close enough to smell the odour, Constable Hewlett did not communicate that information to Constable Dejong before Constable Dejong made the demand.

140Constable Dejong, therefore, could not rely on Constable Hewlett’s observation. If the officers took 15 or 20 seconds to compare notes and inform each other of their grounds before the demand was made, this error would not have been made.

141When Constable Hewlett stated, “You are going to do a demand”, he was assuming that Constable Dejong had the same grounds as he did, when that was not the case.

142While this would have undoubtedly made Constable Dejong’s grounds stronger, it does not, in my view, translate into a finding that without this fact, Constable Dejong’s grounds were insufficient to satisfy the reasonable suspicion requirement.

143When Constable Dejong made the demand, he was possessed of the following subjective grounds which constituted his subjective belief that there was a reasonable suspicion that Mr. Ackers had alcohol in his body:

a) There had been an accident involving a Tesla going off the road and into a ditch;
b) A person matching the description of Mr. Ackers was seen getting out of the driver’s area of the vehicle.
c) His dispatcher told him that witnesses said that Mr. Ackers was intoxicated;
d) When he arrived on scene there was no one around;
e) He and his brother officer searched the area with negative results;
f) He looked at the involved vehicle and there were no other persons in it;
g) He confirmed that Mr. Ackers is the registered owner of the vehicle;
h) Once he was back at the scene, one of the witnesses came and told him that person matching the description of Mr. Ackers was up the road at a church parking lot entering a taxi;
i) He stopped the taxi and the person in the back seat matched the description of Mr. Ackers;
j) The person identified himself as Andrew;
k) The person indicated that it was his car in the ditch;
l) The person said he had called a tow and was going to town;
m) He noticed that the man had glossy eyes.

144In my view, judicial scrutiny of the constellation of those grounds results in a conclusion that those grounds are objectively reasonable grounds that form the basis for a reasonable suspicion.

145I accept the evidence of Mr. Ferguson that for as long as he has lived at that address, people travelling on County Road 1 have missed the sharp curve just before the stop sign controlling the intersection of County Road 1 and Highway 15.

146I also accept the proposition that people who get into accidents and leave the scene may be dazed or confused and not thinking straight.

147Another possibility for leaving the scene of the accident was that Mr. Ackers did not own the car, that he had stolen it or that he did not have the owner’s permission to have it. However, before Constable Dejong stopped Mr. Ackers in the taxi, he received confirmation that Mr. Ackers was the registered owner of the involved vehicle.

148These are potential innocent explanations for Mr. Ackers’ accident and the fact that he left the scene.

149As I have set out above, however, the reasonable suspicion standard focusses on the reasonable possibility that there was alcohol in Mr. Ackers’ body. Thus, while there may be innocent explanations, Constable Dejong had to consider them, but he did not have to rule them out before making the demand. Reasonable possibility is a much lower standard than reasonable probability.

150I find that Mr. Ackers was not dazed or confused for the following reasons:

a) Mr. Ackers knew that the police had been called. He told Ms Robinson that they were not necessary. Ms. Robinson told him that it was too late.
b) Mr. Ackers was seen by Mr. Ferguson talking on his cell phone and he told Mr. Ferguson that he was calling a tow truck.
c) Mr. Ackers had no difficulty identifying himself. He told Constable Dejong he had called a tow and was going to a hotel.
d) Mr. Ackers was clear and articulate on the police body-worn camera evidence. He did not appear to be dazed and confused.

151If he is not dazed, confused or afraid, and if he owned the vehicle, why did he leave the vehicle when the police were on the way? Why after patrolling the area could the police not locate him? Why was he in a taxi? These objectively reasonable facts support the reasonable possibility that Mr. Ackers might have been trying to conceal something or distance himself from the accident. Why?

152Constable Dejong was advised by his dispatcher, that witnesses said that Mr. Ackers was intoxicated. When Constable Dejong stopped Mr. Ackers he noted that Mr. Ackers had glossy eyes, which Constable Dejong said was an indicator of the consumption of alcohol.

153This closes the loop and cements the presence of a reasonable possibility that Mr. Ackers had alcohol in his body.

Summary

154In summary, Constable Dejong was possessed of the following objectively reasonable facts which together make out a reasonable suspicion that Mr. Ackers had been operating the vehicle with alcohol in his body:

a) an unexplained accident with a single occupant;
b) a fleeing driver;
c) a third-hand account from a witness who believed the driver was intoxicated;
d) confirmation once the cab was stopped that the passenger in the cab was the driver and registered owner of the vehicle in the ditch; and
e) glossy eyes.

That’s sufficient.

155I therefore find that the breath demand is valid.

156I further find that Mr. Ackers, having refused to provide a sample without a reasonable excuse, will be found guilty of the offence as charged.