R. v. Montana, 2025 ONCJ 484

R. v. Montana

Court File No.: Hamilton 998 24 47101312 Date: August 25, 2025 Ontario Court of Justice

Between: His Majesty the King — and — Jessica Montana

Before: Justice K. L. Hawke

Heard on: July 18 and 22, 2025 Judgment given on: August 15, 2025 Reasons for Judgment released on: August 25, 2025

Counsel:

• Mr. R. Moir, counsel for the Crown
• Ms. C. Valeri, counsel for the accused Jessica Montana

HAWKE J.:

A. INTRODUCTION

1The Defendant, Jessica Montana is charged as follows:

1. That "on or about the 20th day of February in the year 2024, …..did operate a conveyance while their ability to operate it was impaired to any degree by alcohol, or a drug, or both, contrary to section 320.14(1)(a) of the Criminal Code."

2. That "on or about the 20th day of February in the year 2024, …..did, knowing that a demand had been made, fail or refuse to comply with a demand made by a peace officer under section 320.27 or 320.28 of the Criminal Code, contrary to section 320.15(1) of the Criminal Code."

2There was a trial in this case. The Arresting Officer, the Evaluating Officer and the Defendant testified. A second defence witness was not called as the Crown conceded relevant parts of his anticipated evidence.

3At the end of the trial the Crown conceded that it had not proven Count # 1 – Operation While Impaired.

4This left the issue of whether the Crown had proven all of the elements of Count #2 – Failure or Refusal to Comply with Demand.

5In this case I found that the Crown did not prove the elements of the charge under 320.15(1). I provide my reasons for this decision below.

B. THE EVIDENCE

i) The Arresting Officer and excerpts from cruiser cameras

6The arresting officer was Police Constable Monica Szok (Arresting Officer). At 12:41 a.m. she pulled her cruiser in behind the Defendant's vehicle and another cruiser pulled in front of it.

7The Defendant's vehicle was stopped, in the inner lane of two south bound lanes of James Street South, in the City of Hamilton, just prior to an intersection controlled by traffic lights. The intersection was for Herkimer Street (i.e. to the right/west) and the entrance to the St. Joseph's Hospital Emergency Department (i.e. to left/east) on James Street South.

8In a video clip (Exhibit 2) the following can be seen and heard:

• The Arresting Officer looks into the driver's side window (12:43:10); she tells another officer it looks like the driver is sleeping; and she moves her cruiser closer to the Defendant's:

• Then over the course of the next two minutes (12:44:12 - 12:46:14) the following takes place. The Arresting Officer: opens the driver's door of the Defendant's vehicle; says 'Can you put the vehicle in park for me?'; instructs the Defendant to remove her seat belt and then repeats the instruction; asks the Defendant to step out and she does; closes the door and asks the Defendant her name and gets a response; and asks 'where are you going?'. The Defendant's response is inaudible but the video shows her pointing at the Emergency Department of St. Joseph's Hospital, where there is an ambulance in the bay that runs parallel to the street. The Defendant is placed in handcuffs and other officers search the vehicle.

9For this same period of time the Arresting Officer testified that: the Defendant appeared to be asleep and slouched forward; it took a few attempts to rouse her (not apparent on video); she was slow to follow instructions; when she got out she was unsteady on her feet; there was no smell of alcohol; and the Defendant dropped a meth pipe.

10The Arresting Officer testified that when placing the cuffs on the Defendant she said she was being arrested for impaired operation of a motor vehicle and shortly thereafter she did the Rights to Counsel, caution and DRE demand. I understood the officer to be saying this was all in the same location, on the street, outside the hospital and then she transported the Defendant to Station 30.

11There is another video clip in evidence. It is at the scene and shows approximately one minute of time (12:47:50 - 12:48:44) when the officer is doing a search prior to putting the Defendant into the cruiser. The clip begins with the Defendant saying 'like a week and a bit ago' 'on my stomach, gall blander so it's very sore'. The Arresting Officer is trying to figure out the location and the Defendant says 'It's like up on the top, like they did 5 incisions, I've got 2 on one side and 1 on the other and'. The officer says she will be very careful and she asks about various possible objects on the defendant. The Defendant says 'No'. The search begins and the officer asks the Defendant how many pairs of pants she is wearing and the clip ends there. The Defendant appears to be wearing a winter coat.

12Regarding the demand, when first asked about it the Arresting Officer testified that the Defendant 'agreed' to the demand. When she was asked to do it specifically she said the Defendant 'understood' the demand.

13According to the Arresting Officer's testimony the words of the demand were: "I demand that you submit to an evaluation conducted by an evaluating officer to determine whether your ability to operate a conveyance is impaired by a drug or a combination of a drug and alcohol and that you accompany me now for this purpose. Do you understand?" A. "Yes."

14The following is a timeline of subsequent events based on the Arresting Officer's evidence:

• 12:48:44 a.m. - Video clip mentioned above of search prior to entry into cruiser
• Unknown - Leave scene for 7-8 km drive to Station 30
• 1:14 a.m. - Arrive at Station 30. In cruiser the Right to Counsel was done again and the Defendant gave a lawyer's name at 1:15. The Defendant was left in the cruiser with Arresting Officer's partner and the Arresting Officer entered the station for the purpose of giving her grounds to Police Constable McClure (Evaluating Officer). The Arresting Officer testified that this is standard procedure for any arrest and also that the evaluating officer would determine if he was going to continue with the evaluation
• 1:25 a.m. - Arresting Officer provided grounds to Evaluating Officer
• 1:40 a.m. - Defendant was brought into the station (26 minutes after arriving) searched and placed in a cell
• 1:44 a.m. - 1:48 a.m. - Calls were made to the named lawyer and associate and voice mails left (i.e. 29 min after request). The Arresting Officer let the Defendant know and the Defendant did not want anyone else to be called.
• 2:18 a.m. - The Defendant entered the evaluation room

COMMENTS

15The Defendant sat in a cruiser for nearly a half hour outside the station while the Arresting Officer made no attempt to call the lawyer named by the Defendant and while she did things that were apparently expected of her by the Hamilton Police Service. This included giving her grounds to the Evaluating Officer in order to learn if he would continue with the evaluation, which is an unusual procedure and it is not part of the framework in the Criminal Code.

16The trial was focused on other issues but I am highlighting this evidence because it is consistent with what happens later with the Defendant and the Evaluating Officer where priority was given to local police practices/directives.

ii) The Evaluating Officer and evaluation room video

17Police Constable Christopher McClure (Evaluating Officer) was the evaluating officer. His certification by the International Association of Chief's of Police as a Drug Recognition Expert was filed as an Exhibit.

18The Defendant entered the room where the Evaluating Officer was at 2:18 a.m. Below I have transcribed the video of their entire interaction. Unfortunately, I had problems with the time of day on this video so I did the transcription in minutes and seconds of running time. The Defendant entered the room at 1 minute and 37 seconds using the running time, so using the officer's evidence this would equate to 2:18 a.m.

0:00 i.e. 0 minutes & 0 seconds

Video begins and Evaluating Officer is in the room. (Note: In this transcript 'officer' means the Evaluating Officer unless otherwise noted.)

1:25

Officer: Seated at desk in corner, spins chair quickly to door and back and says "come on in here"

1:33

Arresting Officer: Defendant is at the door and Arresting Officer says: "Have a seat in the silver chair."

1:35

Officer: Defendant enters room. Evaluating Officer says to Arresting Officer "Do you want to just grab her hoodie from her". The Defendant removes her hoodie without difficulty. (the front zipper was unzipped from the beginning)

2:05

Officer: "Just have a seat in that chair for me ma'am." As the Defendant sits down she is holding her arms crossed in front of her, with her elbows bent upward and her arms crossed near her wrists. This results in each arm covering the corresponding breast. She appears to be cowering given what I just described plus her upper body is bent inward and somewhat downward. She is wearing a camisole with spaghetti straps, leggings and socks.

2:12

Officer: "Ok I got to go over a few things with you before we get started. The first thing is that you will be audio and video recorded while we are in here, at all times. Do you understand that?"

2:18

Defendant: Officer: Defendant:

"Yes." (barely audible) "Yes or no" "Yes." (barely audible/discernible, nodding yes)

2:22

Officer: "I am going to go over a few things with you, if at any point you don't understand ask me to repeat it - my name is Chris - and I will do my best to explain it in a different manner."

2:35

Officer: "Let's go over why you are here. You have been arrested for impaired operation of a conveyance do you understand that?"

2:40

Officer: "Do you understand that yes or no?"

2:42

Defendant: There is a very small sound from her that overlaps with the 'yes or no' words above.

2:47

Officer: "Ok I just need nice clear answers for me."

2:55

Officer: "Do you understand you have a right to talk to any lawyer you wish and you also have a right to talk to duty counsel for free legal advice."

3:01

Defendant: "Yes." The Defendant pulls her knees up toward her body while attempting to get feet on the chair in front of the crossed arms. She is unable to do this. She puts her feet down, crosses her legs keeping her knees somewhat elevated.

3:05

Officer: "My understanding is you asked to talk to Jamie Stevenson is that correct? OK, and we left a message for her and if she calls back or her associate and we will stop what we are doing and put you on the phone with her or the associate. Do you understand?"

3:23

Defendant: "Ok" or "yes" (very soft)

3:24

Officer: "Is there anyone else you wanted to talk to?"

3:26

Defendant: "No."

3:27

Officer: "No Duty Counsel, no other lawyers of choice?"

3:29

Defendant: "No."

3:30

Officer: "Ok."

3:32

Officer: "I am going to read you a caution right now. You are being charged with the operation of a conveyance right now. You are not obliged to say anything unless you wish to do so but whatever you say may be given as evidence. Do you understand that?"

3:38

Defendant: (a small sound but basically inaudible)

3:46

Officer: "I need nice clear answers - I am going to read you a secondary caution now. If you have spoken to any other police officer or if any other person in authority has spoken to you in connection with this matter I want it clearly understood that I do not want it to influence you in making a statement - do you understand?"

4:02

Defendant: (verbal sound cannot discern any word)

4:06

Officer: Do you understand that the officer has demanded that a drug recognition evaluation be conducted?

4:14

Defendant: "A h yeh." (very faint)

4:20

Officer: "Will you submit to the drug recognition evaluation?"

4:24

Defendant: "I don't even know what that means."

4:28

Officer: "That's ok I will explain it to you. That is a great question. So, I'm just going to make notes that I'm explaining this. Ok. So, the drug recognition evaluation is a 12 step process, a number of tests that I put you through, divided attentions tests as well as clinical tests and at the end of it I form an opinion and if I believe the opinion is that you are impaired by drugs, one of the seven drug classes then I make a urine demand on you. The urine then gets sent away to the Centre of Forensic Science and tested for the presence of drugs in the form of a toxicology report. So, the officer believes that you are impaired, were operating a conveyance or a motor vehicle or a car, impaired by drugs. She made a demand, which she is allowed to do by law, for you to come and be put before a drug recognition expert, which is myself, for a drug recognition evaluation. So she has made that demand, so what I am asking you is will you submit to the drug evaluation, and it is a yes or no, and because we live in Canada you have a choice to participate, or not participate, but you just need to be aware that if you choose not to participate there is an additional charge of fail to comply with demand. Does that explain ever-y-thing from start to finish?" (Very small pause) "Do you have any questions before I ask you a question again?"

6:13

Defendant: (no sound or other response)

6:15

Officer: "Do you have any questions before I ask you the question again?"

6:17

Defendant: (no response)

6:20

Officer: "I am just going to make a couple of notes that I explained this to you."

6:36

Officer: "So I am going to ask you again. Will you submit to the drug recognition evaluation?"

6:43

Defendant: "No"

6:49

Officer: "No, OK, I am going to read you the demand one more time (See note) just to give you a second to think about it but I am not going to force you into doing anything - So I demand that you submit to an evaluation conducted by an evaluating officer to determine whether your ability to operate a conveyance is impaired by a drug or a combination of a drug and alcohol and that you accompany me for this purpose. Do you understand that demand?" (Note: The only other demand with these words was on scene approx. 1.5 hours before this)

7:12

Officer: "Yes or no?"

7:12

Defendant: (I can only hear a very light sound that overlaps with the 'yes or no' question of the officer)

7:16

Officer: "And again I am going to ask you one more time, I am not pressuring you I just want to make sure you are thinking clearly so, will you submit to the drug recognition evaluation?"

7:25

Defendant: "No."

7:27

Officer: "Ok" - (then he is writing notes)

8:04

Officer: "So, officer Szok is present - I am going to inform you in front of her that you are going to be charged with fail to comply with demand in addition to the impaired operation of a conveyance - ok - I will get your sweater back, and they will put you back in the cell and do the paperwork and get you out of here as quickly as we can. Any questions?"

8:38

Defendant: (a small sound that I cannot make out)

8:40

Officer: "No? That's it."

19Note: Total time of Evaluating Officer being with the Defendant is slightly less than 6 minutes.

20The Evaluating Officer's testimony began with the usual exercise of 'qualifying notes'. It became clear that he did not attempt to begin an evaluation, in any way, at any time, during his contact with the Defendant. Consistent with this his notes were on a Hamilton Police Service form where he recorded basic information about the Defendant, grounds, and the demand time. There was also space for Remarks where he kept some notes.

21The Evaluating Officer did not in any way use the Drug Recognition Expert Worksheet that is the prescribed way of recording an evaluation nor did he ever consider doing a Drug Recognition Narrative Report which is the other prescribed form in conducting an evaluation. (See paragraph 65 below)

22These two documents were not used on this occasion "because the accused was not willing to participate". The officer testified that these documents did not get started because there was no cooperation from the accused.

23His evidence was that:

The Drug Recognition Expert Worksheet begins upon the Accused being willing to submit to that process. We don't start the evaluation for the formal drug recognition expert evaluation until the person has said they are willing to comply and submit to the testing - Otherwise I would be holding somebody forcing them to do the test. (Emphasis added)

24This enquiry ended with:

Crown: So, long story short you don't actually get to do the test in this case because there is a refusal?

Officer: Yes, long story short.

25Then the video, transcribed above, was played.

26It was followed by:

Crown: … the audio is not perfectly loud. In terms of her understanding when you were asking about performing the drug recognition exam did you take it that she understood what you were explaining to her?

Officer: It was my opinion that she was comprehending what I was asking her.

Crown: Did she submit to the exam?

Officer: No.

27The Evaluating Officer was asked about his observations of the Defendant's 'state'. He indicated: her eyes appeared constricted without measurement; her complexion was a flushed face; while walking she was walking very slowly; she was speaking with a low voice when responding to questions or when asking questions; she was shivering; she was slow to get up when leaving; and he noticed goose bumps.

28The Evaluating Officer was asked some details about his observations with a focus on the Defendant's eyes.

Crown: Sorry, so you didn't really get a chance to measure them, is that correct?

Officer: I cannot start measurements until somebody is willing to submit to the drug recognition evaluation and I would use then the pupilometer, otherwise I would be taking measurements warrantlessly. (Emphasis added)

29The Evaluating Officer then advanced an opinion about impairment and by what. I interrupted this evidence and spoke to the Crown about an admissibility issue. My position was that the officer was testifying as an expert in conducting an evaluation and in this case he did not conduct one. For the officer to have an expert opinion outside of one that was part of an evaluation then he would have to be qualified in some other way. (See paragraph 65 below) The Crown agreed and asked to include only the officer's observations as part of the evidence.

CROSS-EXAMINATION

30The officer was asked if words for the demand were part of his training. Regarding his DRE training he said 'no' because it is an international evaluation and the demand changes by country. As far as in Canada is concerned he indicated that it is through basic training and what is printed on cards and forms from his police service.

31The officer was asked where the passage "because we live in Canada you have a choice" comes from.

32The officer testified that this was simpler language for the question that is there [on the form]. He also testified: "To explain on my alcohol influence form the question that is there in a simpler language [than] 'will you submit to the drug evaluation?'".

33I note the following exchange:

Defence Counsel: So, that's not part of your training to become a Drug Recognition Expert that you should tell somebody the choice to refuse or to agree to the demand that is being made

Officer: In the drug recognition program, no, but as a police officer informing somebody if they are going to be committing an offence

34Further, I note this exchange:

Defence Counsel: Was there any thought, in terms of having her start doing some steps and seeing if she agrees to doing those steps?

Officer: No because if she doesn't want to do it now I'm holding her against her will to do something she didn't want to do. (Emphasis added)

35The officer agreed that he did not ask about medical conditions and he testified it would have come up as part of the Drug Recognition Evaluation. Otherwise, he would have asked about this if he was told something or noticed something. He explained that, in the Drug Recognition Evaluation, part of what happens is medical conditions can be ruled in, or out, or partially in or out, with different tests. He was able to provide basic textbook answers as to how to deal with a medical issue but he did not engage in this, given he did not start an evaluation.

36He was asked about the lack of responses from the Defendant on the video tape particularity around the six-minute mark. It was suggested that a couple of times the Defendant did not answer. The officer said the Defendant was speaking low and he noted this as part of his description of her. He also said that the auditory system was not the best. He asserted that she did answer every question.

COMMENTS

37The Evaluating Officer testified that the Defendant answered every question. After listening to, and watching the video I cannot accept this testimony, especially as it concerns any alleged response between 6 minutes and 13 seconds up to 7 minutes and 25 seconds. During this time the word "no" can be heard twice (6:43 and 7:25). Otherwise there is silence and one small sound. Further one cannot see anything to indicate that she was speaking. (eg. one cannot see her lips moving) The impact of this finding is that after the Defendant said "I don't even know what that means" at 4 minutes 24 seconds, there is no evidence to support a suggestion that she understood the question posed: "Will you submit to the drug recognition evaluation?"

38The following is clear from the Evaluating Officer's evidence:

(a) He was familiar with the demand used by the Arresting Officer because he repeated the same demand at the 6:49 mark. He prefaced this demand by saying "I am going to read you the demand one more time" when this was the first time he had read it and this was after his 3rd repetition of "Will you submit to the drug recognition evaluation?", in the course of 2ish minutes.

(b) Based upon the Hamilton Police Service form, he would not even consider going forward with his role as the evaluating officer involved in the case, without a statement from the Defendant, wherein she affirmatively agreed that she would submit to an evaluation.

(c) He believed that he could not legally go forward, with his duty as the evaluating officer to conduct an evaluation, without a statement from the Defendant that she agreed to submit to an evaluation.

(d) In other words, if he simply went forward based on the demand used by the Arresting Officer and that he used at 6 minute 49 second mark on the video, without this statement from the defendant:

• he would be 'holding somebody forcing them to do the test';
• he would 'be taking measurements warrantlessly'; and
• If she did not want to do it he would be holding her against her will to do something she did not want to do.

(e) He testified that the same Form is used in the case of breath demands and as a breath technician he would ask a similar question of subjects who came to him pursuant to a breath demand.

iii) The Defendant's evidence

39The Defendant, who is 37, testified that about a week and a half before the offence date she had gall bladder surgery. By the offence date she had just started walking but was still having difficulty doing so. Also, she had medication for pain and her mental health. But for the problems from the gall bladder surgery, she described her overall health as good.

40During the day that preceded her arrest in front of St. Joseph's Hospital, she had been driving her own vehicle, a Jeep, to go grocery shopping with her partner. Another car swerved into her lane, and as a result of this her vehicle went up on a curb and hit a pole. The air bags did not deploy and she hit her head on the steering wheel.

41The police were called. A very brief police report has been filed, on consent. It indicates a collision on February 19, 2024 at 18:23 hours where police, fire and ambulance attended.

42The Defendant testified that she was briefly checked out by the ambulance. Given all of the adrenaline she was experiencing she thought she was okay. She and her partner took a cab home and her vehicle had to be towed, due to the damage.

43At home she tried to relax but in the early evening her partner had a mental health breakdown and with the assistance of police he was taken to St. Joseph's Hospital. Meanwhile, she was starting to feel the impact of the accident. Her upper incision hurt, she had a headache, and bruising was starting to show around her eyes and her nose was swelling.

44Around midnight her partner called from the hospital because he was released and he wanted a ride home.

45The Defendant testified that given she didn't have her own vehicle because of the accident, she took a car, a Chevy Cobalt, that she had purchased for her son when he got his G2, that she didn't use, and headed to St. Joseph's to pick up her partner.

46The Defendant recalls being woken up by police. She recalls having what she thought was a weed pipe in her hand that she had discovered sitting on the front passenger seat during the drive. She had not seen it before and she was planning to question her partner about it when he arrived in the car, as she had seen him going out to the car previously.

47The Defendant testified that she did not use illegal drugs.

48The Defendant with regard to her contact with police recalls: the pipe dropping; feeling scared; asking the officer to be careful because of her surgery and being told not to talk as there was video and audio in the cruiser; being taken to the mountain station (i.e. Station 30); asking for a lawyer, Ms. Stevenson, sometime after being at the scene (time not clear to me); and being put in a cell. I note that these were points with little or no narrative.

49The Defendant testified that she does not remember any conversation with the breath tech, even after watching the video. (Note: Obviously this is a reference to the Evaluating Officer)

50The Defendant's next memory is the fingerprint room. It is agreed this would have been later, at Central Station.

51The Defendant recalls being released from Central Station and that they (i.e. the police) drove her home.

52The Defendant testified that she continued to feel unwell. She was feeling dizzy and had a severe headache. Two days later she went to Urgent Care at St. Joseph's where a doctor told her that her nose was broken, she had bruised ribs and tailbone and she had a concussion.

53She rested and took medical leave as she kept passing out. When she went out she took a bus. At least one time on the bus she passed out and went far past her stop.

CROSS-EXAMINATION

54The Defendant was cross-examined about finding the pipe. The Defendant explained this and I am not going to review details further given the Crown later agreed that it belonged to her partner and that he did not need to be called about this or the accident earlier in the day.

55It also became apparent that the Defendant could not remember: the time of the video clip above regarding the search outside of the cruiser; the drive to the mountain station and the sally-port; or the trip to the second station.

56She agreed that she was intelligent, educated and familiar with the justice system and that operating a vehicle with a substance would be a criminal offence.

COMMENT

57I found that the Defendant was a credible witness. Her evidence was internally consistent, is confirmed on key points and is unchallenged in other areas.

C. THE APPLICABLE LEGAL PRINCIPLES

i) Statutory Interpretation of 'evaluation' and 'evaluating officer' in the Impaired by Drug provisions in the Criminal Code

58In an impaired by drug case, regardless of whether alcohol may also be involved, the demand made by a peace officer is pursuant to Section 320.28(2)(a). This demand at its core is a demand that a person submit to an evaluation conducted by an evaluating officer.

59In a recent judgment, R. v. Takov, 2025 ONCJ 316, I explored the statutory interpretation of evaluation and evaluating officer and some of the things that flow from that interpretation.

60In Takov I found that the statutory interpretation of an evaluation, in Section 320.28(2)(a), and related sections, is a very specific evaluation, and that it is the 12-Step Drug Influence Evaluation (12-Step DIE) as determined by the International Association of Chiefs of Police - Drug Evaluation and Classification Program.

61Further, an evaluating officer is an officer that is a Certified Drug Recognition (DRE) expert accredited by the International Association of Chiefs of Police.

62The 12-Step DIE can be found in the training manuals used for the Certification Program for Drug Recognition Experts certified by the International Association of Chiefs of Police - Drug Evaluation and Classification Program.

63There are two manuals. These manuals are the Participant Manuals for officers enrolled in the Drug Evaluation and Classification Program, which if completed successfully, along with completing supervised testing, results in certification of Drug Recognition Experts (DRE) by the International Association of Chiefs of Police. Note: The Evaluating Officer in this case has been certified through this process. These manuals [2023] are:

i) PRE-SCHOOL: Preliminary Training for the Drug Evaluation and Classification Program - Participant Manual (abbreviated to 'P.S.' in citations below)

ii) DRE: Drug Recognition Expert 7-Day School — Participant Manual (abbreviated to '7 Day' in citations below)

64I accessed the Manuals online, at the website of the National Highway Traffic Administration of the US Department of Transportation, at https://www.nhtsa.gov/enforcement-justice-services/drug-evaluation-and-classification-program-advanced-roadside-impaired.

65Some key concepts from the 12-Step DIE are:

• The 12-Step DIE is more than a list of twelve steps. Each Step is a very detailed and fully standardized procedure
• These Steps were reviewed in detail in Takov
• The Drug Recognition Expert (DRE) evaluating officer's expertise when administering/conducting an evaluation is defined by the 12-Step DIE and they have no expertise that allows them to add, change, or ignore any part or how it is to be conducted
• This includes the fact that any opinion evidence offered by an evaluating officer comes from the 12-Step DIE at Step 11 – Opinion of Evaluator
• It follows that if any other opinion evidence is proffered it would be necessary to have a voir dire to determine its admissibility
• DRE's are trained to prepare two reports: Drug Influence Evaluation; and Drug Influence Evaluation Narrative

66Regarding the current case some specific points from the 12-Step DIE include:

• It is not part of the 12-Step DIE, to ask the subject, at any point, anything along the lines of: Do you agree to submit to an evaluation?

• The 12-Step DIE says very little about a subject 'refusing'. It stresses doing the standardized procedure the same way each time and basically carrying on in that manner. Specially, the following is stated:

  • DREs should always try to conduct the 12-step process in the same manner each time. If there is deviation from the 12-step process, it should be noted in the narrative report. DREs should make every effort to conduct a complete post arrest drug influence evaluation for every drug impaired driver, whether they are the arresting officer or not. However, there may be times when DREs begin the 12-step process, but are unable to complete it (for example, uncooperative subject, equipment failure, or refusals). DREs should document all available evidence and observations in their report. (Emphasis added)

  • Whenever possible, DREs should conduct the entire drug influence evaluation in accordance with DEC Program training. (Emphasis in original) (Note: DEC stands for the program's name - Drug Evaluation and Classification)

  • Circumstances may warrant a DRE to perform a step out of sequence or the suspect may be unable, or refuses, to perform part of the evaluation. If this occurs, the DRE should document the circumstances in their narrative report. (Emphasis added)

ii) Elements of Failure or Refusal to Comply

67The starting point is the Demand section:

Section 320.28(2)(a) - If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person's ability to operate it was impaired to any degree by a drug or a by a combination of alcohol and a drug, or has committed an offence under paragraph 320.14(1)(c) or (d) or subsection 320.14(4), the peace officer may by demand, made as soon as practicable require the person to comply with the requirements of either or both of paragraphs (a) and (b):

(a) To submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person's ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.

(Emphasis added)

68The Failure or Refusal to Comply With Demand section is:

320.15(1) 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 320.27 or 320.28.

69As summarized in Impaired Driving and Other Criminal Code Driving Offences the elements of this offence are: (Footnotes not reproduced)

This offence involves three elements:

i) A valid demand (Emphasis added)

ii) The actus reus, which is a failure or refusal to provide the requisite sample, and

iii) The mens rea, which is either knowledge that the demand has been made or that the accused intended to produce the failure or refusal

Where the Crown has proved all three elements, the accused may escape liability if they have a reasonable excuse for refusing or failing to provide the sample.

70The above summary is obviously constructed around the case law for Failure to Provide Breath Sample which shares the same Criminal Code section. Given the lack of case law regarding Refuse Evaluation Demand, this is a solid starting point but some adjustments need to be made in the wording. This is also true with what follows below. I will wait until the Analysis to make any necessary adjustments.

71When doing the Analysis in this case I also found it helpful to keep first principles in mind.

72As summarized in Impaired Driving and Other Criminal Code Driving Offences at page 79:

The Supreme Court of Canada, in the 2017 case of R. v. Alex, concisely explained the difference in the criminal liability between the refusal offence and other drugged driving or drinking and driving offences:

While the refusal offence is part of the same statutory regime, it is different from other drinking and driving offences in substance. Culpability for the refusal offence is based on disobedience with lawful compulsion, whereas culpability for an "over 80" office is based on driving with a blood-alcohol concentration over the legal limit.

(Emphasis added)

A VALID DEMAND

73A valid demand is the first element. The Crown must prove:

i) The statutory preconditions for the demand, and

ii) The officer communicated a demand to the accused

74Regarding i), i.e. the statutory preconditions for the demand, as summarized in Impaired Driving and Other Criminal Code Driving Offences:

The Crown must prove that the statutory preconditions existed for making the demand. The Supreme Court noted in Alex that the need to prove the preconditions arises out of the nature of the offence rather than the text of the section:

First, the textual argument assumes that the language of s. 254(5) requires the lawfulness of the demand to be an element of the offence. In my view, however, this element is better thought of as arising from the general nature of the refuse offence—an offence which criminalizes disobedience in response to lawful compulsion. Notwithstanding the words "made under" disobedience with unlawful compulsion is simply not criminal. (Emphasis added)

75Regarding ii), i.e. officer communicated a demand to accused, as summarized in Impaired Driving and other Criminal Code Driving Offences:

No particular wording is required for a valid demand. The demand must convey that the person must comply and provide the sample. This can be accomplished through words or conduct, including the tenor of the officer's discussion with the accused. …. The officer must make a "demand" not a "request." Requests such as "Would you please provide a sample?" Do you wish to take the test?" Are not unequivocal demands. Refusing to comply with a request isn't an offence. …."

D. ANALYSES

i) What is involved, from the subject's point of view, when submitting to an evaluation?

76A breath sample demand requires 1 or 2 (depending on which demand) suitable samples of the subject's breath into a specific instrument. This is a broadly understood concept. Compliance with a demand for an evaluation by an evaluating officer involves multiple things and multiple ways of 'submitting' to the demand. I have taken the details of what the DRE/evaluating officer is expected to do in the 12-Step DIE, that I reviewed in Takov, and 'reverse engineered' the requirements to be from the subject's point of view.

77To comply with the demand the subject must:

• (Step 1 - Breath Alcohol Test)

• Submit by providing a single breath sample

• (Step 2 - Interview of arresting officer)

• No action required by subject

• (Step 3 - Preliminary Examination and first pulse)

• Submit by answering a series of questions dealing with possible injuries or medical problems
• Submit by acquiescing (as in tacitly accepting the officer's actions) to the evaluating officer looking closely into the subject's eyes to make a preliminary observation of the pupils
• Submit by acquiescing to the evaluating officer to taking a pulse
• Submit by following instructions to watch the movements of a stimulus (eg. a pen) held by the evaluating officer

• (Step 4 - Eye Examinations)

• Submit by following instructions to watch the movements of a stimulus
  • i) Side to side
  • ii) Up and down
  • iii) Toward the nose

• (Step 5 - Divided Attention Tests: Modified Romberg Balance; Walk and Turn; One leg stand; Finger to Nose)

• Submit by listening to standardized instructions and then following these instructions by:
  • i) Standing with feet together and tilting head back slightly with eyes closed
  • ii) While in this position estimating 30 seconds and when at the 30 second estimate opening eyes, tilting head forward and saying 'stop'
• Submit by listening to standardized instructions and then following these instructions by:
  • i) Standing on a line on the floor, heel to toe, right foot in front with arms at side while receiving standardized instructions for the next phase
  • ii) Taking nine heel-to-toe steps on the line (while watching feet) turning around keeping the front or lead foot on the line and turning by taking a series of small steps with the other foot, and then returning with nine heel-to-toe steps down the line
• Submit by listening to standardized instructions and then following these instructions by:
  • i) Raising right leg approximately 6 inches off the ground, with the right foot parallel to the ground, then while looking at the right foot counting 'one thousand and one, one thousand and two etc'. (The evaluating officer says stop after 30 seconds have passed)
  • ii) Repeating the above with left leg (i.e. listen to instructions and follow these instructions)
• Submit by listening to standardized instructions and then following these instructions by:
  • i) Assuming a specific posture (re. body and arms) and closing one's eyes and then move the tip of an index finger to the tip of one's nose when instructed to do so. This is done six times (three times on each side)

• (Step 6 - Vital Signs and second pulse)

• Submit by acquiescing to the evaluating officer taking pulse
• Submit by acquiescing to the evaluating officer taking temperature
• Submit by acquiescing to the evaluating officer taking blood pressure

• (Step 7 - Dark Room Examinations)

• Submit by sitting still and keeping eyes open while evaluating officer is close enough to hold a pupillometer to the side of the head, next to each eye separately, in three lighting conditions: room light; near total darkness; and direct light (i.e. while shining a light into the eye)

• (Step 8 - Check for muscle tone)

• Submit by acquiescing to evaluating officer to touching forearms and pressing against muscle in arm

• (Step 9 - Check for injection sties and third pulse)

• Submit by acquiescing to evaluating officer inspecting forearms
• Submit by acquiescing to evaluating officer taking pulse

• (Step 10 - Interrogation, statements, and other observations)

• There may be an additional questions asked at this stage. For the purposes of the current issue, I have chosen not to review this step.

• (Step 11 - Opinion of Evaluator)

• No action required by the subject unless the opinion results in a urine sample demand. As this is a separate demand I have chosen not to review it as part of the current issue.

• (Step 12 - Toxicological examination)

• No action required by the subject.

ii) Did the Crown prove the statutory preconditions for the demand?

78At the time the original demand was made, by the Arresting Officer, the answer to this question is 'yes'. More specifically under section 320.28(2)(a) the Arresting Officer had the grounds set out in the section and then she gave a demand using the words of the same section.

79However, this does not end the matter. I find that the Evaluating Officer required that the Defendant make a statement affirming that she would submit to an evaluation by an evaluating officer (referred to as statement below), and in so doing he was, in fact, making an additional demand.

80The grounds for this second demand remained the same as the original demand, but what the second demand purported to compel, i.e. the statement, significantly impacted the first demand.

81My reasons for finding that requiring this statement from the Defendant rose to the level of being a 'demand' made by a police officer, as opposed to something lesser are:

• After going over preliminaries (i.e. Right to Counsel, cautions and "Do you understand that the officer has demanded that a drug recognition evaluation be conducted?), the Evaluating Officer went immediately to: "Will you submit to the drug recognition evaluation?"
• The Evaluating Officer basically began the substantive part of his interaction with the Defendant with this question. He returned to the question 3 times. Three minutes passed between the first and the last (i.e. 4th) time. Throughout the three minutes, the primary topic, directly or indirectly, was about the Defendant providing an answer to the question.
• The Evaluating Officer, through his words and tone, was unequivocal about the fact that the question needed to be answered, that it was a 'yes' or 'no' answer, and not answering was clearly not an option.
• The Evaluating Officer clearly communicated that answering 'yes' had to happen before an evaluation would be done.

82Further, there is nothing to support characterizing the Evaluating Officer's words in any other way, given:

• They are not from the 12-Step DIE / evaluation (See paragraph 66 above)
• They are inconsistent with the instructions in the 12-Step DIE/evaluation (See paragraph 66 above)
• The Evaluating Officer's evidence confirms that he did not, would not, and thought he could not, begin the evaluation without a statement from the Defendant affirming that she would submit to an evaluation conducted by an evaluating officer.

83The Evaluating Officer kept the two demands separate when speaking to the Defendant, but looking at how they come together, in the circumstances of this case, his de facto demand was the following:

I demand that you submit to an evaluation conducted by an Evaluating Officer by:

(a) Providing a statement affirming that you will submit to an evaluation by an Evaluating Officer; and

(b) Upon the completion of (a) submit to an evaluation by an Evaluating Officer

in order to determine whether your ability to operate a conveyance is impaired by a drug or a combination of a drug and alcohol and that you accompany me for that purpose.

84This de facto demand is not a section 320.28(2)(a) demand, nor is it any other demand in the Criminal Code. The fact that the Evaluating Officer delivered it in two parts does not change this conclusion.

85Given this:

• The Crown did not prove the first aspect of proving the 'valid demand' element of the refuse offence (i.e. the Crown did not prove the statutory conditions of the demand)
• This demand does not amount to 'lawful compulsion' as referred to in R. v. Alex (See paragraph 72 above)
• In the circumstances, it was 'unlawful compulsion'
• Disobedience with 'unlawful compulsion' is not a crime (See paragraph 74 above)

86I find that the Evaluating Officer's demand completely subsumed the original demand made by the Arresting Officer.

87In light of this finding, and given my ruling about the Evaluating Officer's demand, this ends the case because the Crown did not prove part of an essential element of the Refuse offence.

88I recognize, as submitted by the Crown, that there are cases of 'outright refusal'. These cases are based on factual findings about the actus rea, by a court, based upon a defendant's words and behaviour. They are not about the 'valid demand' element. Further, this is not an 'outright refusal' case on its facts. During the time that the Defendant was subject to the Arresting Officer's demand, for approximately one and a half hours, the Defendant was compliant. The only thing that changed was her getting entangled in the Evaluating Officer's invalid demand.

89Given that the evidence suggests that what happened here is common practice, driven by a standard form of the Hamilton Police Service, I also note that the question of concern (i.e. will you submit to the drug recognition evaluation?), on this form, is unfortunate for the evaluating officers, given it can apparently cause them to think that they do not have authority to do what the Criminal Code says they can do pursuant to Section 320.28(2)(a).

90Further, the question on the form is outrageously unfair to the person who is subject to the demand. As this case illustrates the Evaluating Officer's insistence that he would not move forward with his lawful duties to conduct an evaluation, in a bazaar twist, became the responsibility of the Defendant and that in turn resulted in her being charged.

CONCLUSION

91The Crown did not prove the statutory preconditions for the demand.

iii) Did the Crown prove the officer communicated a demand to the accused?

92The only way this question remains relevant is if I was wrong above, when I decided that the Arresting Officer's demand was completely subsumed by the Evaluating Officer's demand. If instead, the Arresting Officer's demand remained in place, then this question needs to be examined.

93As reviewed above (See paragraph 75) no particular wording is required for the demand. The Arresting Officer used the words from her notebook and they were basically drawn from the Criminal Code.

94Generally speaking, one would anticipate, based on case law developed through various types of breath demand cases, that this would be sufficient to show that the officer communicated a demand.

95There are a couple of major problems however. One is a general problem and the second one is case specific.

96The general problem arises from the fact that case law requires that a demand be unequivocal. In other words, it should leave no doubt, objectively speaking, about the 'lawful compulsion' involved.

97Essentially, a demand communicates to the subject that he/she will be 'compelled' to 'do something'. Without both parts being clear it is logically impossible for any proposed demand to be unequivocal.

98The case law regarding this has focused on the 'compelled' part. So, for example, a 'request' is not a 'demand'.

99Case law has not focused on the 'do something' part. Presumably, this is because the case law has been about various breath demands and the words from the Criminal Code including 'provide a sample of your breath'. These words are commonly understood by the public, and do not raise an issue about what is being compelled and in turn about the demand being unequivocal.

100In contrast, in drug impaired cases, the words from the Criminal Code for the demand are 'submit to an evaluation conducted by an evaluating officer'. (See paragraph 67 above)

101I find that realistically, on an objective basis, the words, 'submit to an evaluation', do not communicate what the subject is 'compelled' to 'do'.

102It follows that the words 'submit to an evaluation' do not result in an unequivocal demand.

103Unlike 'provide a sample of your breath', these words require a specific knowledge about what is meant by them and it cannot be expected that they would be understood by others who do not have the specific knowledge.

104To say otherwise would be dishonest, especially given:

• There is no definition of an evaluation in the Criminal Code and its current Regulations and it is only through statutory interpretation that one can conclude that an evaluation is the 12-Step DIE, of the International Association of Chief's of Police
• The expertise of a DRE/evaluating officer has been acknowledged by the Supreme Court of Canada as being outside the experience and knowledge of the trier of fact. If triers of fact need this assistance, then how can a trier of fact possibly assert that the subject of the demand that uses the words of the section can reasonably be expected to know what they are compelled to do?

105Given the above, I am unable to find that the Arresting Officer's demand was unequivocal.

106This appears to be a very unsatisfactory result, because if one stopped at this point this ruling would have a negative implication in all cases with the same demand.

107The way this problem is resolved in most cases is that the demand, in effect, goes into a holding pattern as the subject accompanies an officer(s) who essentially delivers the subject to an evaluating officer.

108During this intervening time, a few basic additional things take place, such as search incident to arrest, and the management of any right to counsel issues, but there is no investigation involving the subject directly.

109Then, when the subject meets the evaluating officer, that officer begins the evaluation. This evaluation, that is sanctioned by the Criminal Code, as it is administered over time, in a clear and standardized way by an evaluating officer communicates to the subject the multiple things 'compelled' by the words 'submit to an evaluation'.

110The delay in perfecting the demand in this way simply cannot be avoided. Realistically, there is no obvious way to communicate the meaning of an evaluation in a comprehensive, clear and understandable way to the subject. No harm comes from the delay so long as there is no direct investigation of the subject (or additional demands, as in this case).

111In my view, in the above scenario, the initial problem of the demand not being unequivocal is cured by the standard instructions in the evaluation. As a result, the Crown could prove that the officer communicated a demand to the accused.

112This scenario did not happen with the Defendant because an evaluation was never started, much less completed. As a result, the communication of a demand was never perfected/completed.

113I should also review the fact that when the Evaluating Officer asked the Defendant "Will you submit to the drug recognition evaluation?", she replied "I don't even know what that means." This was followed by a long response from the Evaluating Officer and the only words in that response about what an evaluation was were: "So, the drug recognition evaluation is a 12-step process, a number of tests that I put you through, divided attentions tests as well as clinical tests…"

114Did the Evaluating Officer's response perfect the demand and make it unequivocal? I find that objectively it did not. His response was incomplete, vague and used words that one would need specialized knowledge to understand.

115The Crown pointed to the fact that the Evaluating Officer testified that the Defendant understood. One cannot look at the video and agree that she spoke words to this effect. (See paragraph 37 above) More importantly, this is a red herring. This issue is not about the defendant's state of mind or her mens rea when she said 'no'.

116The issue is whether the demand was unequivocal and given the evaluation that could have perfected the Arresting Officer's demand did not take place, the answer is 'no'.

CONCLUSION

117The Crown did not prove that the officer (Arresting Officer and/or Evaluating Officer) communicated a demand to the accused.

E. CONCLUSION

118Given the two conclusions in the section above, I find that the Crown did not prove a valid demand, which is the first of the three elements of the Refuse to Comply With Demand offence. (Note: Either of the two conclusions alone leads to the same outcome. They are not co-dependent)

119The Defendant is found NOT GUILTY.