Court of Appeal for Ontario

Date: May 1, 2018

Docket: C62213

Judges: Laskin, Miller and Paciocco JJ.A.

Parties

Between

Her Majesty the Queen

Respondent

and

Kim Roberts

Appellant

Counsel

Gregory Lafontaine, for the appellant

Michael Fawcett, for the respondent

Hearing

Heard: December 21, 2017

On appeal from: The convictions entered by Justice Antonio Skarica of the Superior Court of Justice, sitting with a jury, on January 27, 2016, with voir dire reasons reported at 2015 ONSC 7974.

Decision

Paciocco J.A.:

Overview

[1] Ms. Kim Roberts, a psychologist, was involved in a two-vehicle accident after leaving a restaurant where she had been drinking heavily. She turned into the path of an oncoming vehicle, causing the collision. The three occupants of the other car were injured, two of them more seriously.

[2] As a result, Ms. Roberts was charged with several alcohol driving offences. Ultimately, she was convicted by a jury of two counts of impaired operation of a motor vehicle causing bodily harm. The jury also found her guilty of two counts of causing bodily harm while driving with more than the legal limit of alcohol in her blood, but those charges were conditionally stayed.

[3] Ms. Roberts now appeals her conviction and the findings of guilt on the charges that were stayed. Her grounds of appeal relate to her unsuccessful Charter application, the jury charge on her "bolus drinking" defence,[1] and the "unfair" manner in which the prosecuting Crown (not Mr. Fawcett) conducted the case.

[4] For the reasons that follow, I would dismiss Ms. Roberts' appeal.

[5] It is convenient to begin by setting out the background facts. I will then address the issues and introduce further facts that are material to those issues, as they are discussed.

The Background Facts

[6] Ms. Roberts had been visiting her gravely ill mother-in-law at a hospital in Hamilton. She was worried about the financial burden of caring for her mother-in-law. She was also under stress as she had difficult days coming up teaching a course on the investigation of offences against children at the Ontario Police College in Aylmer. She was about to head back to her home in Stratford, but decided to stop at a restaurant before the drive. It was approximately 9:00 p.m., and she was alone.

[7] Ms. Roberts admitted at trial that she drank heavily at the restaurant. She acknowledged that, initially, she drank a large, 20-ounce beer and a one-ounce shot of scotch. She claimed that between 10:15 p.m. and 10:30 p.m., just before leaving, she had four more drinks: two large beers and two more shots of scotch.

[8] Ms. Roberts testified that after leaving the restaurant she drove northbound from Highway 403 to Highway 6, on her way to Highway 401. After travelling for approximately 13 minutes, she thought better of continuing her drive and decided to pull over in a safe location so that she could make an appropriate plan. She passed a gas station and decided to turn back and stop there. She made a U-turn and then headed back, southbound, towards the gas station.

[9] When she reached an intersection near the gas station, she pulled into the turning lane and waited at a green light for the northbound traffic to pass. According to her, several cars went by. She then turned left into the path of an oncoming car. She did not see the vehicle she collided with. She testified that it came out of nowhere.

[10] Three young women were in that car, returning home from a concert. The driver, Ashley Vader, testified that as she approached the intersection on a green light she saw Ms. Roberts' car sitting in the turning lane, but not signalling a turn. Ms. Vader nonetheless assumed that Ms. Roberts' car was waiting for her to pass before making the turn. Ms. Vader proceeded into the intersection. Suddenly, Ms. Roberts' vehicle turned into her path. Ms. Vader could not avoid the collision.

[11] All three young women in Ms. Vader's vehicle were injured, two of them more seriously. Fortunately, none of the injuries was life threatening.

[12] There is uncertainty as to the precise time of the collision. Garrett Black, who witnessed the accident, told police it occurred at approximately 10:45 p.m. One of the young women injured in the accident, Alyson Whyte, placed a 9-1-1 call at 10:51:21 p.m. Ms. Whyte testified she "probably" made the call less than a minute after the collision. Cst. Jamie Hart, the officer who ultimately arrested Ms. Roberts, testified that he was dispatched to the collision scene at approximately 11:01 p.m.

[13] Cst. Hart testified that he arrived on scene at 11:10 p.m., in uniform, operating a fully marked police vehicle. He had been advised that it was a "personal injury motor vehicle collision". Upon his arrival, Cst. Hart noted two damaged vehicles in the northbound lane.

[14] Based on information he received from a paramedic who was already on scene, Cst. Hart approached Ms. Roberts, believing that she was the driver of one of the vehicles and that she could be impaired. He spoke with her as she stood on a grassy boulevard with two other women, not far from the Honda Pilot he understood her to have been driving.

[15] Ms. Roberts told Cst. Hart that she was not injured. He noted, however, that "she was unable to explain how the motor vehicle collision had occurred," and had difficulty forming complete sentences during a conversation they had about the direction of travel and "the sequence of events of what actually occurred." Cst. Hart testified, "at that time I did note the slight odour of an alcoholic beverage on her breath and for that reason I asked her to walk with me back to my cruiser." He said she complied. During the walk to the cruiser on a dry, flat paved surface, Cst. Hart noted that Ms. Roberts appeared unsteady on her feet. She brushed into him on two separate occasions.

[16] Cst. Hart asked Ms. Roberts to get in the back seat of the police vehicle. She was reluctant. He told her he had to investigate the motor vehicle collision. He also testified: "Additionally, I also felt it was a bit of a safety issue" given that cars were being diverted by his police vehicle, as the northbound lanes were blocked by the accident. Ms. Roberts got into the back seat of the police vehicle. She testified that she felt she had no choice.

[17] Further conversation ensued. Cst. Hart testified that he noted a distinct odour of an alcoholic beverage on Ms. Roberts' breath, and then had a more detailed conversation with her about alcohol consumption. She said she had just come from a restaurant where she had had two large beers. During the conversation her speech was slow, deliberate, and slightly slurred. At 11:16 p.m., Cst. Hart asked Ms. Roberts to exit the cruiser and placed her under arrest "for impaired operation of a motor vehicle."

[18] Cst. Hart testified that at 11:20 p.m. he read Ms. Roberts her rights to counsel. He cautioned her and read her a breath demand at 11:21 p.m. After a brief conversation in which she stressed the importance of attending an appointment the next day, Cst. Hart retrieved Ms. Roberts' documents from her vehicle, including her driver's licence. He arranged for a breath technician and confirmed that other officers would take statements and do the traffic report. He also arranged to have Ms. Roberts seen by the paramedic he had spoken to earlier. Again, Ms. Roberts denied being injured and signed a "waiver of release". He left the scene with Ms. Roberts at 11:40 p.m. He took her directly to the Burlington police station, arriving at 11:54 p.m.

[19] At the station, police processed Ms. Roberts and placed a call to duty counsel. At 12:11 a.m. duty counsel called back and Ms. Roberts was taken to speak with duty counsel in a private phone booth. The conversation ended at 12:15 a.m.

[20] At 12:21 a.m. Cst. Hart completed his interview with Cst. Steven Maxwell, a qualified breath technician. He then gave custody of Ms. Roberts to Cst. Maxwell at 12:21 a.m.

[21] Cst. Maxwell testified that he was with Ms. Roberts longer than is usually required to secure breath samples from a subject. During that time, approximately an hour and a half, he formed the opinion that her ability to operate a motor vehicle was impaired by alcohol. Ms. Roberts' eyes were bloodshot and she had a strong odour of alcohol on her breath. Her balance was slow and careful, and she appeared to have soiled and wet her pants. Cst. Maxwell found her to be antagonistic. She repeatedly failed to provide suitable samples of her breath into the approved instrument despite instructions. Cst. Maxwell believed she was intentionally frustrating the process.

[22] Ms. Roberts complained of chest pain while with Cst. Maxwell. However, she repeatedly declined his offers of medical attention.

[23] Ms. Roberts ultimately provided breath samples into an approved instrument that were suitable for analysis. The first sample, at 1:11 a.m., produced a result of 211 milligrams of alcohol in 100 millilitres of blood. The second sample was obtained at 1:40 a.m., producing a reading of 201 milligrams of alcohol in 100 millilitres of blood.

[24] As she would later discover, Ms. Roberts had, in fact, been injured during the accident. She testified that she had a broken sternum, a broken rib, a possible second broken rib, and a possible compression fracture to her lower vertebra.

[25] Ms. Roberts was initially charged with the offences of impaired driving contrary to s. 253(1)(a) of the Criminal Code, and driving with more than the legal limit of alcohol in her blood contrary to s. 253(1)(b) of the Criminal Code. A few days later those charges were upgraded to two counts of impaired driving causing bodily harm contrary to s. 255(2) of the Criminal Code, and two counts of causing bodily harm while driving with more than the legal limit of alcohol in her blood contrary to s. 255(2.1) of the Criminal Code.

[26] At her trial by jury, Ms. Roberts sought to have much of the evidence against her excluded because of claimed violations of her Charter rights.

[27] Specifically, during a Charter voir dire she urged that she was not properly advised of the reasons for her detention, contrary to s. 10(a) of the Charter. She argued that, pursuant to s. 7 of the Charter, statements she made to the officers could not be admitted into evidence for any purpose because those statements had been statutorily compelled. Moreover, she claimed that without those statements, Cst. Hart did not have reasonable and probable grounds for her arrest, contrary both to her s. 8 right to be free from unreasonable search or seizure and her s. 9 right not to be arbitrarily detained.

[28] Ms. Roberts also claimed that her right to counsel under s. 10(b) of the Charter was violated, since she was "steered to" duty counsel, depriving her of the right to choose the lawyer she would consult. Finally, she claimed that Cst. Hart had been conducting an informal sobriety test when he walked her back to his police cruiser, and that it was contrary to s. 10(b) of the Charter for Cst. Hart's observations to be admitted at trial as proof her impairment.

[29] In his Charter ruling, the trial judge rejected all of the alleged violations. His rejection of Ms. Roberts' claim that she felt statutorily compelled to speak to the officers was influenced heavily by adverse credibility findings he made against Ms. Roberts.

[30] At the trial proper, in addition to the evidence of driving, impairment, and the breath readings described above, the Crown called as a witness Ms. Marie Elliot, an expert toxicologist from the Centre for Forensic Science. She was called to provide an expert opinion about Ms. Roberts' blood alcohol level at the time of the collision, her last act of driving. Employing several factual assumptions, she gave evidence that Ms. Roberts' blood alcohol level would have been well over the legal limit of 80 milligrams of alcohol in 100 millilitres of blood when the collision occurred, whether the accident occurred at 10:45 p.m., or at 10:51:12 p.m., the time of the 9-1-1 call.

[31] Ms. Roberts countered with competing evidence from her own expert witness, Dr. Ward. Assuming Ms. Roberts' bolus drinking claim to be true, Dr. Ward's evidence raised the prospect that Ms. Roberts' blood alcohol content at the time of driving could "straddle" the legal limit of 80 milligrams of alcohol in 100 millilitres of blood. In other words, he posited that Ms. Roberts' blood alcohol level at the time of driving could be below the legal limit, as low as 69 milligrams in 100 millilitres of blood, or above the legal limit, as high as 98 milligrams of alcohol in 100 millilitres of blood.

[32] Prior to the jury charge, and again after the charge, counsel for Ms. Roberts asked the judge to direct the jury that straddle evidence is capable of raising a reasonable doubt about Ms. Roberts' blood alcohol level. The trial judge declined and did not specifically instruct the jury on the use it could make of the straddle evidence.

[33] As indicated, the jury ultimately found Ms. Roberts guilty of all charges.

The Issues

[34] Ms. Roberts raises a number of grounds of appeal from these findings of guilt and her ensuing convictions, some of which were refined during oral argument. It is convenient to state the grounds of appeal as follows, and to address them in the following order:

A. Did the trial judge err in his credibility assessment of Ms. Roberts' voir dire testimony relating to her claim that she spoke to the officers because she believed she was statutorily compelled to do so?

B. Did the trial judge err in rejecting Ms. Roberts' reasonable and probable grounds appeal?

C. Did the trial judge err in finding that Ms. Roberts' s. 10(a) rights were not infringed?

D. Did the trial judge err in admitting into evidence the observations Cst. Hart made of Ms. Roberts' condition as he accompanied her to the police vehicle?

E. Did the trial judge err in declining to instruct the jury on the nature and applicability of the straddle evidence given by the defence expert toxicologist, Dr. Ward?

F. Did the Crown's cross-examination of Ms. Roberts result in a miscarriage of justice?

Analysis

A. Ground of Appeal 1 – The Credibility Evaluation

[35] At trial, Ms. Roberts sought to have the conversations she had with Cst. Hart and Cst. Maxwell excluded from evidence. She claimed during the Charter voir dire that she spoke to the officers because she believed she was statutorily compelled to do so. She said that the law requires statutorily compelled statements to be excluded from evidence for all purposes, including whether Cst. Hart had reasonable and probable grounds for her arrest. The statutory provision Ms. Roberts was alluding to is the Highway Traffic Act, R.S.O. 1990, c. H.8, s. 199(1):

199(1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or damage to property apparently exceeding the amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3).

[36] The trial judge did not believe Ms. Roberts' claim that she spoke because she believed she was statutorily compelled to do so. Ms. Roberts claims the trial judge erred in making that credibility assessment. I disagree. The trial judge was entitled to come to the conclusion he did.

[37] The rule that Ms. Roberts relied upon to support her contention that statutorily compelled statements are not admissible for any purposes is grounded in the decisions in R. v. White, [1999] 2 S.C.R. 417, and R. v. Soules, 2011 ONCA 429, 105 O.R. (3d) 561, leave to appeal refused, [2011] S.C.C.A. No. 375.

[38] In White, at para. 67, the Supreme Court held that where a driver is statutorily compelled to make a statement for highway traffic purposes, the driver "is entitled, at least, to use immunity in criminal proceedings in relation to the contents of that statement." The court set out the test for determining whether a statement is statutorily compelled. The accused, Ms. White, met that test. The court also held, at para. 89, that statutorily compelled statements are to be automatically excluded from evidence under s. 24(1) of the Charter. As a result, the Crown was prevented from using Ms. White's statements at trial to prove that Ms. White was the driver of a hit-and-run vehicle. In other words, s. 7 of the Charter prevented the Crown from using Ms. White's statutorily compelled statements to incriminate her.

[39] In Soules, this court took the rule in White one step farther. Consistent with the broad language and reasoning employed in White, this court held that s. 7 prevents statutorily compelled statements from being used for any purpose in a criminal trial, including during a Charter voir dire to establish whether an officer had reasonable and probable grounds to arrest the subject.

[40] In order to rely on this line of authority, Ms. Roberts had the burden of establishing on the balance of probabilities, among other things, that she "gave the report on the basis of an honest and reasonably held belief that …she was required by law to report the accident to the person to whom the report was given": White, at para. 75. To meet this burden, Ms. Roberts testified at the voir dire that she had been told by senior people from the Waterloo Region Police Service that "if you're ever involved in a car accident and the damages is a thousand dollars or estimated to be over a thousand dollars, you have to report that." She said this conversation took place when she was planning a training program with these officers relating to interviewing children.

[41] As I have said, the trial judge did not believe this testimony. He found that the reason Ms. Roberts chose to speak was to curry favour with the police by impressing them with her status as a police college instructor.

[42] The Crown disagrees with Ms. Roberts' contention that the trial judge erred in his credibility assessment in coming to this conclusion. Nevertheless the Crown claims that the propriety of the credibility assessment does not matter because the Supreme Court has effectively overruled Soules in R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202. The Crown claims that, after Paterson, statutorily compelled statements are now admissible to prove reasonable and probable grounds in a Charter voir dire.

[43] In making this submission, the Crown relies, in part, on a footnote in the majority decision in Paterson, in which Brown J. states: "Without commenting on the correctness of Soules, I observe that [the direction in R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3] that the police may rely upon roadside statements for the purpose I have described was categorical." The "purpose … described" was establishing grounds for a breath demand during a Charter voir dire.

[44] Although this remark by Brown J. does invite debate about the correctness of Soules, I do not agree that Paterson has resolved the question. The issue is too complex and important for the Supreme Court to have done so in a footnote; particularly a footnote that expressly refrains from commenting on the correctness of the Soules decision.

[45] Moreover, the fact that Paterson foregoes the need for voluntariness voir dires during Charter voir dires does not impel the conclusion that statutorily compelled statements are now admissible during Charter voir dires. It has repeatedly been emphasized, including most recently in R. v. Jones, 2017 SCC 60, at para. 30, citing White, at para. 45, that:

The principle against self-incrimination demands different things at different times, with the task in every case being to determine exactly what the principle demands, if anything, within the particular context at issue.

[46] I would note, in this regard, that the categorical entitlement to rely on roadside statements recognized in Orbanski, and referred to in the Paterson footnote, relates to responses to questions posed by police officers that drivers are not compelled to answer. The self-incrimination implications may be quite different for statements the subject is legally obliged to make by statute.

[47] And while it is true that much of the language and reasoning in Paterson would support its extension to statutorily compelled statements, the language and reasoning in White is decidedly to the contrary.

[48] Paterson cannot, therefore, be taken to have overruled Soules. Nor is it appropriate, in my view, for a three-member panel of this court to reconsider our decision in Soules based on the Paterson decision. In my view, the Soules decision remains binding law in Ontario unless and until it is properly brought before this court for its reconsideration or is overruled by the Supreme Court.

[49] Ultimately, it is unnecessary to consider the fate of Soules further in order to resolve this appeal. I would not interfere with the trial judge's decision to reject Ms. Roberts' claim that she spoke out of a sense of statutory compulsion. That credibility finding is entitled to great deference on appellate review: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26. Ms. Roberts has not raised any legal errors in the trial judge's analysis, nor has she shown that his credibility finding cannot be reasonably supported by the evidence: R. v. J.J.B., 2013 ONCA 268, 305 O.A.C. 201, at paras. 23-24. It is only where the reviewing court has considered all of the evidence before the trier of fact, and determined that the credibility determination cannot be supported by that evidence, that the court can overturn it: see R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 10.

[50] Specifically, I do not accept Ms. Roberts' main contention that it was improper for the trial judge to engage in a "global assessment" of Ms. Roberts' credibility by relying on credibility problems with other aspects of her evidence when deciding whether to believe her statutory compulsion claim. There is nothing wrong with discounting a specific claim made by a witness because they have been discredited on other claims they have made.

[51] For example, it was obvious to the trial judge from the breath room video that Ms. Roberts was trying to delay furnishing a breath sample for analysis. Yet Ms. Roberts denied doing so in her evidence. In this way, Ms. Roberts showed a readiness to manipulate the process to suppress potentially incriminating evidence. She also revealed the capacity to testify untruthfully. The trial judge was entitled to consider these things when assessing her statutory compulsion claim.

[52] Nor do I accept Ms. Roberts' other challenges to the trial judge's credibility evaluation.

[53] It was not unfair for the trial judge to recognize Ms. Roberts' intelligence and her role as a police trainer, as Ms. Roberts contends. Her intelligence was relevant to whether she would know enough to secure bar receipts, phone logs, and available confirming evidence, if what she was saying was true. Her experience in training the police about children's evidence was also relevant for the same purpose.

[54] Nor did the trial judge err in noting the absence of support for Ms. Roberts' claim that she had a conversation with Waterloo police officers about accident reporting. Contrary to her submissions, it would not have been impermissible oath-helping to call the Waterloo officers to testify about what they told her. Although it is impermissible to have one witness testify that another witness is telling the truth, it is not impermissible to call a witness to verify that they have witnessed a material fact that another witness claims, including the occurrence of a conversation that is being relied upon as a source of knowledge.

[55] I also reject Ms. Roberts' argument that the trial judge erred by not recognizing that "[d]rivers in general know that they have a duty to report an accident and that they have to 'talk to the police' about it": R. v. DaCosta, [2001] O.T.C. 474, at para. 17. This proposition of common sense is not a legal rule that creates a presumption of statutory compulsion. The plausibility of any claim is simply a factor to consider, and the trial judge was entitled not to be moved by this plausibility submission in the circumstances of this case.

[56] As the Crown pointed out, where statutory compulsion is claimed, the issue is not simply whether the driver who has spoken knows of the legal duty to report an accident. The issue is whether the reason the driver spoke when they did was because they felt compelled by a legal obligation to do so. In this case, there was an ample evidentiary foundation for the trial judge's conclusion that Ms. Roberts' engagement with the police was motivated not by a sense of legal obligation, but by a desire to influence their course of conduct by impressing them with her role as a police instructor.

[57] Specifically, Ms. Roberts brought her role as a police instructor up repeatedly and persistently. She did so immediately after being informed that she was being arrested and would have to provide a breath sample. She did so on numerous occasions at the police station while being videotaped. In fact, she referred to her role as a police trainer so frequently that Cst. Hart encouraged her to "get over this sticking point" so he could get on with the investigation. Then, in the breath room, she continued to mention her police training work to Cst. Maxwell.

[58] Finally, Ms. Roberts takes issue with the trial judge's decision to discredit her claim that the Waterloo accident reporting conversation took place, on the basis that she did not mention this conversation to Cst. Hart or Cst. Maxwell. I suspect that many judges would not have drawn this inference. Given that people tend not to explain to police officers why they have decided to speak, the failure to explain may well cast little light on whether a subsequent explanation for the decision to speak is true. Yet, it was up to the trial judge to decide what inferences to make. The fact that other judges might disagree does not signal a reversible error.

[59] Even if this reasoning does amount to a misapprehension of the evidence, it has not produced a miscarriage of justice. Stripping this inference from the record does not weaken the ultimate conclusion. The trial judge had ample reason for rejecting Ms. Roberts' statutory compulsion claim on the balance of probabilities.

B. Ground of Appeal 2 – Reasonable and Probable Grounds

[60] Ms. Roberts appeals the trial judge's rejection of her s. 8 Charter claim that Cst. Hart did not have reasonable and probable grounds to arrest her. She links this ground of appeal to her submission that her statements are inadmissible under Soules. Ms. Roberts urges that once her statements are excluded under Soules, the remaining information cannot support a finding of reasonable and probable grounds that her ability to operate a motor vehicle was impaired.

[61] I have already rejected the Soules ground of appeal. This ground of appeal therefore also fails. The other evidence in the case, coupled with the statements made by Ms. Roberts, provided reasonable grounds for Cst. Hart's belief that Ms. Roberts' ability to operate a motor vehicle was impaired by alcohol.

C. Ground of Appeal 3 – The Reason for Detention

[62] Ms. Roberts contends that the trial judge erred by failing to find that her s. 10(a) Charter rights had been breached. That section provides:

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor[.]

[63] Breaches of s. 10(a) can be "temporal" or "informational". A temporal breach occurs if an arrested or detained person is not promptly informed of the reasons for their detention. An "informational" breach arises if the reasons for their detention are not adequately communicated. On appeal, Ms. Roberts identifies both kinds of breaches of s. 10(a): a temporal breach by Cst. Hart in failing to promptly notify Ms. Roberts of the reason for her detention; and an informational breach by Cst. Hart in failing to advise Ms. Roberts of the actual extent of her jeopardy. I would dismiss both grounds of appeal.

(1) The Temporal Breach

[64] Ms. Roberts claims that a temporal breach of s. 10(a) occurred when Cst. Hart failed to advise her of the reason for her detention before asking her to accompany him to his police vehicle. Ms. Roberts did not raise this s. 10(a) temporal breach as a ground of appeal in her notice of appeal, or in her supplementary notice of appeal. This may be because Ms. Roberts did not raise it as an issue in her Charter application at trial, either. The alleged "informational" breach was the sole focus in that application. This may, in turn, explain the curiosity that the trial judge did not identify the point of detention in his Charter decision.

[65] Ms. Roberts does, however, raise the temporal violation issue in her appeal factum, and the Crown has responded. The fact that the parties have joined issue on this question during the appeal does not make it a valid ground of appeal, and I find it not to be. The trial judge can hardly be said to have erred in failing to find a Charter breach that he was not asked to find. I would therefore dismiss this ground of appeal.

[66] Even if the temporal violation had been properly raised on this appeal, I would not have accepted it. Ms. Roberts' temporal breach argument was based primarily on the assumption that Ms. Roberts was detained when Cst. Hart asked her to accompany him to the police vehicle. The evidence does not support this assumption. Ms. Roberts was not physically restrained and she was under no legal obligation to comply with Cst. Hart's request. Although a reasonable person in Ms. Roberts' position might well conclude that she had been deprived of her liberty when asked by a police officer to "walk with me back to my cruiser", Ms. Roberts clearly did not subjectively believe that she was being detained. She testified:

I understood he had an accident to investigate. I walked with him to the cruiser. I presumed that he'd be doing the same things to everybody else, the witnesses.

[67] Ms. Roberts was therefore not psychologically detained. On the evidence before the trial judge, this is one of those interactions between the police and members of the public, "even for investigative purposes", that does not constitute a detention within the meaning of the Charter: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 3.

[68] During submissions on appeal, the suggestion was made that it would be unfair for the Crown to now claim that Ms. Roberts was not detained at that point, given that everyone operated on the assumption during the trial that she was detained once asked by Cst. Hart to walk to the police vehicle. Specifically, during voir dire argument the trial judge suggested that Ms. Roberts was detained at this time, defence counsel expressed agreement, and the Crown raised no objection. In my view, the Crown's failure to raise an objection during the exchange between the trial judge and defence counsel does not amount to the Crown's agreement that Ms. Roberts was detained when she walked back to the police vehicle with Cst. Hart. The Crown is not estopped on this appeal from contesting when Ms. Roberts was detained at this time.

[69] Finally, even if I were to hold myself to the trial Crown's concession-by-acquiescence of detention, in my view it would damage the repute of the administration of justice to exclude the evidence under s. 24(2) of the Charter based on a notional, rather than actual, Charter breach. Cst. Hart cannot be expected to have advised Ms. Roberts of the reason for her detention when she was not actually legally detained, and this notional breach would have no impact on her Charter protected interests. Even holding the Crown to the apparent trial consensus on detention would not result in the exclusion of evidence.

(2) The Informational Breach

[70] Ms. Roberts claims that the trial judge erred in finding that she was adequately informed of the reason for her arrest. She says that there was an informational breach of her s. 10(a) rights. Specifically, she urges that Cst. Hart was actually investigating and detaining her for the aggravated offence of impaired driving causing bodily harm, but she was advised only that she was being arrested for the basic offence of impaired driving.

[71] She also contends that the trial judge misunderstood the informational breach issue, as is evident by his comment that there had not been "changed circumstances or new developments" that would require further legal advice. The reference to "changed circumstances or new developments" invokes case law that obliges officers to re-perform their s. 10 Charter obligations when the reason for a subject's detention has changed: R. v. Black, [1989] 2 S.C.R. 138; and R. v. Blake, 2015 ONCA 684, [2015] O.J. No. 5192. Ms. Roberts was not relying on a change in circumstances. Her complaint is that, from the outset, she was detained because of the aggravated offence of impaired driving causing bodily harm, and she should have been told so.

[72] I agree that the trial judge's "changed circumstances" comment is puzzling. What matters, however, is that the trial judge was correct in finding that there was no informational breach of s. 10(a). In my view, Cst. Hart properly advised Ms. Roberts of the reason for her detention and gave her adequate information before she spoke to duty counsel relating to the extent of her jeopardy.

[73] It is important to understand that s. 10(a) applies if a person is either arrested or detained. One who is being arrested is, of course, being detained. A person can, however, be detained without being arrested. The statuses overlap, but are not identical. If someone is being arrested, it is imperative that they are told of the reasons for their arrest. That is what Cst. Hart did when he first explained to Ms. Roberts why she was not free to leave.

[74] Specifically, Cst. Hart told Ms. Roberts that she was being arrested for impaired operation of a motor vehicle. He was right to have done so, even if he suspected she may have committed the more aggravated offence of impaired driving causing bodily harm. On the evidence presented during the voir dire, Cst. Hart did not have grounds to arrest Ms. Roberts for the aggravated offence. He knew there had been a personal injury accident, but he had no objective basis for concluding that she caused the accident. It was not immediately evident from the position or damage to the vehicles which driver, if any, had been at fault. An accident report had not yet been conducted. And Ms. Roberts was unable to explain what happened. When he arrested her, Cst. Hart could have justifiably been criticized if he had told Ms. Roberts she was being arrested for impaired driving causing bodily harm. The only grounds he had at the time related to the basic offence of impaired driving.

[75] There are times when a police officer must go beyond disclosing the grounds for arrest. I agree with the decision in R. v. Carter, 2012 ONSC 94, relied upon by Ms. Roberts. Mr. Carter, arrested for drug offences, was suspected of committing a murder. While under arrest, Mr. Carter was interviewed about the murder. The court held that s. 10(a) was breached because he was not told what he was really being questioned about.

[76] Quite simply, if the police wants to use a person detained for one offence as a source of self-incriminating information relating to a different offence – including an aggravated form of the offence for which they have been detained – the police must tell the detainee this before proceeding. Indeed, they must tell the arrested detainee what they are being investigated for before they have been given their right to counsel. If the police interest in another offence arises after a detainee has been given an opportunity to consult counsel, the police must give the detainee another opportunity to consult counsel: R. v. Blake, at paras. 19-22.

[77] In this case, those rules were complied with. Ms. Roberts was informed of her potential jeopardy of the aggravated offence before she spoke to counsel and before any steps were taken after her arrest to use her as a source of evidence.

[78] Section 10(a) does not require that detainees be told of the technical charges they may ultimately face. A person will be properly advised of the reason for their detention if they are given information that is sufficiently clear and simple to enable them to understand the reason for their detention and the extent of their jeopardy: R. v. Evans, [1991] 1 S.C.R. 869, at pp. 886-88; and R. v. Nguyen, 2008 ONCA 49, 232 O.A.C. 289, at paras. 16-22. Put more purposively: "The issue is whether what the accused was told, viewed reasonably in all the circumstances, was sufficient to permit [her] to make a reasonable decision to decline or submit to arrest", or in the alternative, to meaningfully exercise the right to counsel under s. 10(b): R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 125. It is the second part of this purposive test that is at issue here. In my view, Ms. Roberts had adequate information about her jeopardy to meaningfully exercise her right to counsel.

[79] Specifically, Cst. Hart told Ms. Roberts shortly after they arrived at the station: "Okay. You've been arrested as a result of that, impaired operation of a motor vehicle. That's been really our biggest concern right now is making sure that those people are gonna be Okay." When she asked if she would be released in time to make her teaching engagement at the police college the next day, Cst. Hart stated: "Kim, I can't make any other assurance, okay. We have to worry about the injuries at the hospital, okay." When Cst. Hart attempted to make sure she understood what was happening, Ms. Roberts said: "No, no. I understand that if anyone is hurt that, that crime…." In context, Ms. Roberts' comment was a clear acknowledgment that she knew she could be held responsible criminally if injuries were caused.

[80] On this record, the trial judge was entitled to find that, before Ms. Roberts spoke to counsel, she had been "told about her actual and potential jeopardy in simple language that she understood." The trial judge was correct to reject the s. 10(a) informational breach claim.

D. Ground of Appeal 4 – Observations of Ms. Roberts' Condition

[81] Ms. Roberts claims that the trial judge erred in admitting, as proof of impairment, observations Cst. Hart made when he walked her to his police vehicle. She contends that since Cst. Hart directed her to walk to his police vehicle to further his investigation, she was being conscripted during the walk to provide evidence against herself. She urges that conscripted observations of sobriety are inadmissible as proof of guilt according to the authority in Orbanski and R. v. Milne (1996), 28 O.R. (3d) 577 (C.A.), leave to appeal dismissed, [1996] S.C.C.A. No. 353, and she relies on the test of "conscription" adopted in R. v. Visser, 2013 BCCA 393, 342 B.C.A.C. 129. I disagree. Ms. Roberts does not qualify for the legal protection she claims.

[82] In my view, the relevant, settled law can be stated in the following way. Lawfully obtained evidence conscripted from a detainee through roadside sobriety testing is admissible to establish grounds for an arrest or detention, but such evidence is not admissible as proof of actual alcohol consumption or impairment. As I will explain, according to the law of Ontario, evidence is conscripted in the relevant sense only if the act directed by the officer is, itself, a sobriety test.

[83] To be clear, sobriety testing is not confined to the physical co-ordination tests prescribed by regulation as contemplated by s. 254(2)(a) of the Criminal Code. Sobriety testing can include questions asked about alcohol consumption (Orbanski); directions to detainees to perform physical challenges not provided for in s. 254(2)(a) such as informal co-ordination tests (Milne) or directions to exit a motor vehicle (Visser; and R. v. Iannotta, [2009] O.J. No. 5181 (S.C.)); or directions to blow into the face of an officer (R. v. Weintz, 2008 BCCA 233, 256 B.C.A.C. 197, leave to appeal refused, [2008] S.C.C.A. No. 362).

[84] The Crown argues that Cst. Hart's observations were properly admitted because they are not caught by the rule I have just described. The Crown says that the protection Ms. Roberts claims is available only to detained individuals, and she was not detained at the relevant time. The Crown submits that, in any event, she was not being conscripted during the walk to the police vehicle since Cst. Hart did not intend the walk to be a sobriety test.

[85] For the reasons that follow, I will not decide this ground of appeal on the detention point. I agree with the Crown, however, that Ms. Roberts was not "conscripted" when Cst. Hart made his observations. His observations were therefore properly admitted as evidence of guilt.

[86] I will begin with the detention point.

[87] The Crown is correct that the reasoning in the Orbanski and Milne decisions turns on the right to counsel in s. 10(b) of the Charter, a right that is available only to those who are detained. In each case, restrictions on the admissibility of conscripted observations of sobriety were linked to the s. 10(b) obligation of the police to refrain from conscripting a detainee as a source of evidence until they have had a reasonable opportunity to consult counsel. The constitutional right to be protected from conscription until a reasonable opportunity to consult counsel has been provided would be breached by roadside sobriety testing, unless the testing is a demonstrably justifiable and reasonable limit on this constitutional right that is prescribed by law.

[88] Both Orbanski and Milne accepted that conscripting detainees through roadside sobriety testing provided for in provincial highway traffic legislation is demonstrably justifiable and reasonable. Orbanski did so with respect to questions about alcohol consumption. Milne did so with co-ordination tests. Both cases imposed an important caveat: roadside sobriety testing is reasonable and justifiable so long as the evidence obtained is used solely to support an officer's ground for arrest or detention. In contrast, it would be disproportionate, and therefore not demonstrably justifiable, to use conscripted evidence as proof of impairment during a trial.

[89] As I have explained, Ms. Roberts was not detained when asked by Cst. Hart to accompany him to his police vehicle. She cannot, therefore, invoke the s. 10(b) right that grounds the decisions in Orbanski and Milne, and that girds the settled rule I have described.

[90] I would not decide this ground of appeal, however, on the basis that Ms. Roberts was not detained. This is because there are complex questions, not argued before us, about whether s. 7 of the Charter houses parallel restrictions on the admission of evidence of sobriety conscripted from those who are not detained.[2] Since this ground of appeal can be resolved on the conscription issue, I prefer to do so. As I have indicated, in my view Ms. Roberts does not benefit from the rule she invokes, as she was not conscripted to provide evidence while walking to the car.

[91] There is controversy about how "conscription" is to be tested for the purpose of this restricted admissibility rule. In British Columbia, a motorist is conscripted within the meaning of this rule if they are directed to act for the purpose of assessing their alcohol consumption, even if the directed act itself is not a sobriety test. In Ontario, a motorist is conscripted within the meaning of the rule only if the directed act itself is a sobriety test.

[92] The British Columbia position comes from Visser, in which the court explained that if an officer directs a motorist to act for the purpose of investigating an alcohol offence, the motorist will have been conscripted, and observations made will not be available to prove guilt. In Visser, since the officer directed Mr. Visser to step out of his car for the purpose of assessing his alcohol consumption after he was out of the car, the officer's observations of Mr. Visser getting out of the car should not have been admitted at trial.

[93] In Ontario, the leading decision is R. v. Brode, 2012 ONCA 140, 109 O.R. (3d) 481. In Brode, this court held that if an officer directs a motorist to get out of their vehicle as a sobriety test, the observations cannot be admitted at trial to prove impairment. If an officer directs a motorist to get out of the car not as a sobriety test, but to facilitate further investigation, including gathering other information about sobriety through questioning once the driver is outside of the car, observations made of the motorist while exiting the car are admissible at trial to prove impairment. In Brode, even though Mr. Brode was being directed out of the car so that his sobriety could be observed once out of the car, since it had not been established that Mr. Brode was directed to exit his car so that his manner of exiting the car could be used as a sobriety test, evidence that he stumbled when doing so was admissible as proof of his impairment.

[94] In Visser, at para. 68, the court was critical of the reasoning in Brode, calling it a "distinction without a difference." To be sure, the rule in Brode invites a narrow line to be drawn. The approach in Brode, however, is arguably in keeping with the admonition in Milne, at para. 40, and Orbanski, at para. 58, that the restriction on admissibility "applies only to evidence obtained from compelled direct participation by the motorist in roadside tests." It does not apply to observations made by an officer while carrying out other duties including observations of "unsteadiness of gait upon the driver exiting the vehicle".

[95] In this case, the trial judge applied the more generous Visser test but still rejected Ms. Roberts' challenge. He found as a fact that Cst. Hart asked Ms. Roberts to accompany him to his police vehicle because of safety concerns, not for investigative purposes. This finding took the case out of even the more generous British Columbia rule.

[96] Mindful of the deference owed to trial judges on questions of fact, I have reservations about this finding by the trial judge. Cst. Hart never testified that he walked Ms. Roberts to the police vehicle for safety reasons. She was already off of the road on a grassy median when he initially approached her. Cst. Hart said he smelled a faint odour of alcohol, and at that time, "for that reason, I asked her to walk with me back to my cruiser." Cst. Hart did speak of safety concerns in his testimony, but he did so to explain why he placed Ms. Roberts in his police vehicle after they arrived at the vehicle. He said he put her inside the police vehicle because the traffic was being routed past the police vehicle. And when he put her inside, he told Ms. Roberts he was doing so in order to investigate the accident.

[97] In my view, the trial judge nonetheless came to the correct conclusion. Ms. Roberts has not established that when Cst. Hart asked her to accompany him, he did so for the purpose of observing her sobriety as she walked. Even though the evidence does support the conclusion that Cst. Hart intended to conduct further investigation once they had walked to the police car, this falls short of what is required in Ontario. There was simply no evidence at the Charter voir dire that Cst. Hart had directed Ms. Roberts to walk so that he could test her sobriety while walking. Ms. Roberts has not shown, therefore, that she was compelled to participate in roadside testing as she walked to the police vehicle. I would therefore reject this ground of appeal.

E. Ground of Appeal 5 – The Straddle Breach

[98] Ms. Roberts argues that the trial judge erred by not directing the jury on how to deal with an opinion offered by Dr. Ward based on hypothetical facts, relating to her blood alcohol content at 10:51 p.m. I disagree. This evidence was unimportant and did not require a jury direction.

[99] Dr. Ward's evidence was provided because of controversy about Ms. Roberts' blood alcohol reading at the time of driving. The parties agreed that the breath samples taken by Cst. Maxwell confirmed that at 1:11 a.m. and 1:40 a.m. Ms. Roberts had more than 200 milligrams of alcohol in 100 millilitres of her blood, well over the legal limit. This evidence, on its own, could not prove Ms. Roberts' blood alcohol level at the time of driving because blood alcohol levels change over time as alcohol is absorbed and metabolized. The Crown could not rely on the statutory presumption of identity in Criminal Code, s. 258(1)(c) that presumes blood alcohol levels to be the same both at the time breath tests are taken and when the alleged offence was committed, since more than two hours passed between the accident and the breath samples. Any finding relating to Ms. Roberts' blood alcohol level at the time of driving depended, therefore, on expert toxicological evidence explaining what Ms. Roberts' blood alcohol level would have been at the time of driving, given the breath sample readings that she later produced.

[100] The Crown called Ms. Elliot as its toxicological expert. As indicated, based on factual assumptions she calculated Ms. Roberts' blood alcohol level to have been over 200 milligrams of alcohol in 100 millilitres of blood at the time of driving, whether the accident had occurred at 10:45 p.m., or immediately before 10:51.21 p.m. when the 9-1-1 call was made.

[101] A key assumption Ms. Elliot made in making these calculations was that it would take 15 minutes for the alcohol Ms. Roberts consumed to be fully absorbed into her blood stream. Ms. Elliot described this 15 minutes absorption assumption as "conservative", intimating that alcohol absorption would likely have occurred more quickly.

[102] When presented during cross-examination with studies conducted by other forensic scientists identifying a 30 minutes average absorption time, Ms. Elliot said that she would not dispute the numbers. She nonetheless affirmed in re-examination that this information did not change her opinion about the propriety of using a 15 minutes alcohol absorption assumption in making her calculations.

[103] Ms. Roberts sought to counter Ms. Elliot's evidence by marshalling her testimony about her drinking pattern into a bolus drinking defence. She claimed that she consumed a significant amount of alcohol shortly before leaving the bar. She then called Dr. Ward to offer an opinion that would raise a reasonable doubt about whether enough of that alcohol would have been absorbed into her blood stream by the time of the accident to put her blood alcohol level over the legal limit.

[104] Dr. Ward testified that, in his opinion, the proper absorption window to use in making such calculations is 30 minutes. This was based on his personal experience and studies he relied upon. He offered the opinion that, based on the blood alcohol readings obtained by Cst. Maxwell at 1:11 a.m. and 1:40 a.m., if Ms. Roberts drank alcohol in the quantity and pattern she testified to, her blood alcohol content at 10:45 p.m. would have been below the legal limit of 80 milligrams of alcohol in 100 millilitres of blood at the time of driving.

[105] During cross-examination, Dr. Ward was asked what Ms. Roberts' blood alcohol level would have been at 10:51 p.m., assuming that, of the alcohol she had consumed, one ounce of hard liquor was ingested between 10:15 p.m. and 10:18 p.m. Dr. Ward replied that, assuming the one ounce was fully absorbed by 10:51 p.m., her blood alcohol level at 10:51 p.m. would be somewhere between "69 and 98" milligrams of alcohol in 100 millilitres of blood. Put simply, the potential range of blood alcohol readings would straddle the legal limit of 80 milligrams of alcohol in 100 millilitres of blood. Dr. Ward added, however, that he was confident that the one ounce of alcohol would not have been absorbed into her system in the additional "five minutes" between 10:45 p.m. and 10:51 p.m.

[106] Prior to the jury charge, counsel for Ms. Roberts asked the judge to direct the jury that straddle evidence is capable of raising a reasonable doubt about whether Ms. Roberts' blood alcohol level was over the legal limit at 10:51 p.m. Defence counsel relied on the decision in R. v. Ibanescu, 2013 SCC 31, [2013] 2 S.C.R. 400, in making this request.

[107] The trial judge declined. He explained that the straddle cases are distinguishable because they involved efforts by the Crown to rely on the statutory presumption of identity to prove the blood alcohol level of the accused, rather than expert evidence, as was relied upon in Ms. Roberts' prosecution. Apparently referring to Ibanescu, the trial judge said that there are "other" cases holding that straddle evidence is not "evidence to the contrary", and that instead of telling the jury this, it would be fairer to Ms. Roberts to leave it to the jury to decide what they think.

[108] When the trial judge charged the jury, he did not direct the jury on how to deal with straddle evidence. Counsel for Ms. Roberts again requested that the jury be recharged on the use of straddle evidence, but to no avail.

[109] The Crown contends that, in his charge, the trial judge addressed the defence expert's relevant evidence in considerable detail. I disagree. The charge gave no guidance on how straddle evidence was to be used. In context, the reference in the charge to the potential for the defence expert's evidence to raise a reasonable doubt would have been understood as relating to Dr. Ward's testimony that Ms. Roberts did not have over 80 milligrams of alcohol in 100 milligrams of blood at 10:45 p.m.

[110] In my view, some of the reasons offered by the trial judge for not giving a straddle evidence direction are problematic. The fact that decided cases dealing with straddle evidence involved challenges to the presumption of identity is immaterial. The impact of straddle evidence on reasonable doubt is equally relevant where blood alcohol calculations are done by expert witnesses.

[111] Moreover, Ibanescu, at para. 3, is an authoritative recognition by the Supreme Court of Canada that "straddle evidence … 'may be capable of raising a reasonable doubt' as to whether the accused's blood alcohol content exceeded the legal limit at the time of driving". The existence of other cases holding that straddle evidence is not evidence to the contrary is immaterial because those cases are inconsistent with the law expressed in Ibanescu.

[112] Having said this, straddle evidence has a "narrow strike zone" because its probative value tends to be too low to raise a reasonable doubt: R. v. Snider, 2014 ONSC 1149, 63 M.V.R. (6th) 97, at para. 29. As LeBel J. observed in R. v. Gibson, 2008 SCC 16, [2008] 1 S.C.R. 397, at paras. 55 and 67-68, elimination rates vary from person to person and in each person, depending on a number of factors. This dilutes the probative value of straddle evidence, absent expert testing of the individual's elimination rates under conditions similar to those that were in place prior to the time of driving. In this case, neither party offered testing of Ms. Roberts' elimination rate.

[113] Moreover, LeBel J. commented in Gibson, at para. 73, that a wide straddle range, particularly where the straddle range does not fall overwhelmingly under the legal limit, is not apt to raise a reasonable doubt because such evidence has little tendency to prove that the accused's blood alcohol level was under the legal limit. The straddle range in this case was wide, almost 30 milligrams of alcohol in 100 millilitres of blood, and close to two-thirds of the range fell over the legal limit.

[114] In this case the straddle evidence was of secondary importance. It took on significance only if the accident occurred at 10:51 p.m. That time of driving depended on Ms. Whyte's estimate that she "probably" made the 10:51:21 p.m. 9-1-1 call less than a minute after the collision. Yet, there was evidence that the accident took place 6 minutes before that.

[115] More importantly, Dr. Ward, who provided the straddle evidence, discounted its importance himself. The straddle evidence scenario he offered depended upon complete absorption of the critical one ounce of alcohol. Yet Dr. Ward offered the opinion that this one ounce would not have been fully absorbed at 10:51 p.m. In Dr. Ward's opinion, even on the consumption scenario presented in the hypothetical, Ms. Roberts' blood alcohol level would have been entirely under the legal limit. In effect, his evidence was that there was no straddle.

[116] Accordingly, for the jury to even face a straddle evidence problem, it would have to: find that the accident may have happened at 10:51 p.m., instead of the more likely estimate of 10.45 p.m.; prefer Ms. Elliot's opinion about a 15-minute absorption time to Dr. Ward's 30-minute absorption time; and accept Dr. Ward's calculations on the hypothetical raised in cross-examination. Simply put, this issue was not at the heart of the case.

[117] The Crown argues it was within the discretion of the trial judge to choose not to give a straddle evidence charge given the complexity of the required jury charge, and the fact that a straddle evidence direction would not have been favourable to Ms. Roberts. I agree, particularly given the low probative value of the evidence and the unimportance of the issue. The trial judge's decision not to charge the jury on the straddle evidence issue was in keeping with the role of the trial judge in "separat[ing] the wheat from the chaff" when deciding what defences may be applicable: R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at para. 52.

[118] I would dismiss this ground of appeal.

F. Ground of Appeal 6 – The Unfair Conduct of Crown Counsel

[119] Ms. Roberts takes issue with the manner in which the trial Crown conducted the case. She argues that the trial Crown unfairly manufactured an inconsistency about whether Ms. Roberts turned around at a private service road or an intersection, and engaged in sarcastic comments and inflammatory language when questioning Ms. Roberts. I agree that the trial Crown did not achieve perfect professional restraint, but I do not agree that a miscarriage of justice has occurred. I would dismiss this ground of appeal.

[120] Canadian courts have repeatedly stressed that Crown prosecutors are not simply advocates; they are ministers of justice: R. v. Boucher (1954), [1955] S.C.R. 16. This may be trite, but it is important. Crown prosecutors are expected to press their position firmly and advance their position effectively, even with a degree of rhetorical passion: R. v. Khairi, 2015 ONCA 279, at para. 13; and R. v. Boudreau, 2012 ONCA 830, at para. 15, leave to appeal refused, [2013] S.C.C.A. No. 330. Crown prosecutors must, however, temper their advocacy. They are not to appeal to emotion by engaging in "inflammatory rhetoric, demeaning commentary or sarcasm": R. v. Mallory, 2007 ONCA 46, 217 C.C.C. (3d) 266, at para. 340 per curiam. Nor are they to corrupt the fair reach of evidence in their submissions by suggesting that there are inconsistencies when there are not.

[121] The legal standard for appellate intervention, however, is not perfection, or even faithful comportment with the ethical obligations that mirror these and related rules. The question on an appeal is about effect, not performance. The crucial question is whether, in the context of the trial as a whole, breaches of the limits of proper prosecutorial advocacy have caused a substantial wrong or miscarriage of justice, including by prejudicing the right to a fair trial: R. v. Sarrazin, 2016 ONCA 714, at para. 57. In my view, the Crown's conduct in this case falls far short of causing a miscarriage of justice or prejudicing a fair trial.

[122] There is nothing to the complaint about the unfair manufacture of an inconsistency relating to the intersection and the service road. The trial Crown was entitled to challenge Ms. Roberts' conception of what an intersection is, in order to develop the Crown theory that Ms. Roberts improved, for trial, her narrative about her decision to return to the gas station.

[123] There is more to the sarcasm point. For example, the trial Crown challenged Ms. Roberts' explanation for leaving the bar when she did by asking: "Why do you have to leave at 10:30? You are adult." He suggested to her that her memory was unreliable because her memory "is that of a mind that at the time was drowning in alcohol". Over objection, he confronted Ms. Roberts with being "pissed" and "hammered", until the trial judge admonished him to be more "delicate".

[124] Sarcasm does not make guilt more apparent. What it does is diminish the dignity of court proceedings. Using inflammatory language does not advance reasoning. It invites emotion instead. It would have been better if the trial Crown's cross-examination of Ms. Roberts had been more tempered. This is not a record, however, on which the outcome of a trial should falter. There is no reasonable basis for apprehending that the result of the trial was influenced by the isolated impudent questions and comments that have been identified, or that the trial was or has resulted in a miscarriage of justice.

Conclusion

[125] In my view, none of Ms. Roberts' grounds of appeal succeed. I would dismiss her appeal.

Released: May 1, 2018 ("J.L.")

"David M. Paciocco J.A."

"I agree. John Laskin J.A."

"I agree. B.W. Miller J.A."

Footnotes

[1] Essentially, she claimed that at the time of the accident she was not impaired and her blood alcohol level was below the legal limit because, as the result of her last minute drinking before leaving the restaurant, much of the alcohol she had consumed had yet to be absorbed into her body when she stopped driving.

[2] Parallel s. 7 protection was recognized in Weintz.