Court File and Parties

Court File No.: 11-1459

Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Kathleen Dunphy

Before: The Honourable Justice R. Selkirk

Heard on: May 30th and June 14th, 2012

Oral Decision released: July 5th, 2012

Reasons for Decision released: July 24th, 2012

Counsel:

• Mr. Michael March, for the Accused
• Mr. Jason Nicol, for the Crown

Reasons for Decision

SELKIRK J:

Introduction

[1] Ms. Dunphy is charged with Impaired Driving, contrary to Section 253(1)(a), and Refusal on an Approved Screening Device, contrary to Section 254(5), arising out of an incident on October 10, 2011.

[2] The Evidence: The issues raised are as follows:

1. Has the Crown met its high onus of proof beyond a reasonable doubt on the count of impaired;

2. Was the refusal or failures willful and intentional and established so beyond a reasonable doubt;

3. Was the Approved Screening Device demand unlawful or a violation of Section 8 and Section 10(b) because it came after the officer said he had reasonable and probable grounds to arrest for impaired? At that point, it is argued he should have provided the reason for the arrest, the right to counsel, the caution and moved expeditiously to the detachment so that the right to counsel could be properly exercised;

4. Were the accused's Section 10(b) rights violated by not allowing the accused to call her husband apparently in order to obtain the name of a lawyer;

5. The missing video tape evidence should result in a stay or other remedy it is submitted;

6. The lack of privacy in a cell warrants a stay, it is argued;

7. The failure to release the accused until her husband arrived to pick her up the next morning also mandates a stay of proceeding.

The Evidence

Constable Hicks' Evidence

[3] Constable Hicks heard over the radio about a possible impaired driver on Hwy. 17. He went to Hwy. 17 and at 8:33 p.m. he saw the vehicle described in the dispatch. He followed it and noted that it was swerving within its lane and crossed over the centre lane at one point. He activated his roof lights but the vehicle didn't pull over for three quarters of a kilometer. He approached the vehicle. He noted an odour of alcohol on Ms. Dunphy's breath. He asked her for her documents. She had trouble finding them. She searched various compartments in the vehicle such as the glove box. She believed her purse was in the rear of the vehicle so she got out. Constable Hicks noted she was unsteady on her feet as she walked towards the rear of her vehicle.

[4] She searched the back of the vehicle but then went back to the front and found her wallet in her purse which had been sitting beside her on the front passenger seat.

[5] She couldn't find her driver's licence in her wallet until the officer pointed it out to her. She had difficulty removing it. He made an Approved Screening Device demand. She understood.

[6] He said he demonstrated how to use the device and obtained a .000 reading from his breath. He put in a new mouthpiece and explained what she was to do.

[7] At 8:41 she blew for one second and then stopped which caused an Error reading.

[8] Constable Hicks explained how to use it again and how she had to blow. Her second and third attempts were failures as she did not blow long enough.

[9] Constable Hicks noted she had no difficulty talking, that she demonstrated no respiratory distress; she was not gasping nor puffing nor breathing hard. He explained again that he needed a long steady blow. She made two more attempts but would stop before a suitable sample was obtained.

[10] The officer tested the machine again and it was working properly in his opinion.

[11] He then put in a second mouthpiece, and explained again what to do. She blew in his face instead. He explained the consequences of failing to provide a sample. He said she then pretended to blow.

[12] He said that at times she would use the cruiser to support herself by leaning against it.

[13] At 8:50 she was arrested.

[14] The officer believed he had given her ten opportunities to provide a sample.

[15] She was read her right to counsel and the caution from the card contained in his OPP notebook.

[16] At the station she was again read her right to counsel from a sign on the wall. She asked to call her husband. He explained that the only person he could call on her behalf was a lawyer and that he could call her husband later. She didn't want to call a lawyer.

[17] In cross-examination Constable Hicks said he believed he had grounds to arrest for Impaired prior to the Approved Screening Device demand. He listed those grounds as: the complaint of erratic driving, the swerving within her lane, the failure to stop promptly, the strong odour of alcohol on her breath, that she was unsteady on her feet, that she used the vehicle to lean against, and the difficulty she had in finding and removing her documents in both as a demonstration of mental confusion and as to her fine motor skills.

[18] When asked why, if he had reasonable and probable grounds to arrest her for Impaired did he make an Approved Screening Device demand. He said he did so because the Approved Screening Device was readily available, he wished to collect more evidence to support his belief that she was impaired by alcohol, that he was also conducting an investigation into whether she was over 80 and also because of this court's prior decision which held that it was not inappropriate to carry on with an Approved Screening Device demand even if the officer believed he or she had reasonable and probable grounds prior to that. I will address that decision later.

[19] He described how he coached the individual through the test saying "blow, blow, blow". But she would only blow for a couple of seconds and then stop. He confirmed he warned her of the consequences and told her that the last attempt was her last chance. She again blew for two seconds and stopped.

[20] Constable Hicks also addressed the disclosure issue with respect to a video recording at the station. He indicated that he received the request on December 9 and acted on it immediately. He was advised by Sergeant Graves that there had been a problem with the hard drive between September and November 2011 and that any data captured could not be retrieved.

Constable Mahon's Evidence

[21] Constable Mahon testified that he was also on scene. He described the accused's movements as being very slow and deliberate. He said he saw Constable Hicks demonstrate and explain how to use the Approved Screening Device. He observed the accused to be unsteady on her feet and lean against the cruiser. He heard Constable Hicks warn the accused about refusal and then saw him demonstrate and explain the use a second time.

Ms. Dunphy's Evidence

[22] Ms. Dunphy testified both on the Charter Application and the trial issues.

[23] Ms. Dunphy lives in Ottawa. She testified that on October 10, 2011 which was Thanksgiving that she and her husband went for lunch. She had two beers, ordered a third but didn't drink it.

[24] They went home. She was upset with her husband because she had hoped the day was theirs to share, but he was going to band practice. She fixed herself a drink. It was approximately 4 p.m. She said that for some unknown reason she began to pull items off of a shelf. She "felt dissociated from reality." She realized she had scared her husband with her behaviour. She went outside to play with the dog.

[25] After some time she went back inside and realized her husband had left the house. She said she had a "full blown panic attack." She asked "how could he leave knowing something was wrong." She decided she would leave him. She grabbed some clothes and a bag and left a note on the table. She got in her car and started driving west. She was in a state of panic for quite a while but the driving helped calm her. She stopped in Cobden for gas. She had not decided where she was going to go. She continued westbound.

[26] She said she found herself behind a large truck which caused her to swerve from side to side, within her lane. She said she did this because she was looking for road signs.

[27] She indicated that as soon as she was aware of the officer that she slowed down. She said that she has to bring her vehicle almost to a full stop before she will go onto the gravelled shoulder. She did not explain why this was necessary.

[28] When the officer asked for her documents she asked to get out so she could get her purse which was in the back. She later realized her wallet was beside her on the seat. She said she had no difficulty finding her driver's licence and showed it to him. She then handed her wallet to the officer for him to find the other documents that had been requested.

[29] She said she was wearing thin sole moccasins and the material bunches up under her feet. She didn't know if she was limping due to this.

[30] She was told that she was stopped due to her swerving and that with the odour of alcohol that she was required to do an Approved Screening Device test. She said she agreed. She said there was no demonstration or explanation as to how to use the device that it was simply handed to her and she was told to blow. She blew. The officer, without explanation, said "Again". This was repeated for four or five times. The officer then put in a second mouthpiece. She blew at the officer on one occasion to show him what she was attempting to do. She was not told to blow for seven seconds or to blow harder. She said she was arrested after two or three attempts on the second mouthpiece.

[31] She said the officer didn't read from a card but asked if she wanted to call a lawyer now; to which she replied, no, at the station. At the station she asked to call her husband. She didn't tell the officer why she wanted to call her husband but she said it was because her husband would know the name of a lawyer. She said the officer said that he would call her husband but she didn't want him to speak to her husband before she did so she declined to make any calls.

[32] She was held overnight in a cell. She was not told she was being videotaped but said that she saw a video camera in the morning. When she used the toilet she covered herself with a blanket.

[33] In cross-examination, she said she had never had a panic attack before or since. She's not under a doctor's care and is not taking any medications. She said she drank only two beer at lunch and a "splash" of rum at home.

[34] She said she had no problem with her driving, that she did not care where she went and was not interested in signs. Then, after getting gas, she said she slowed down to drop back behind a truck so that she could see signs. She said she did not swerve from side to side. She did not explain why she had said earlier in her evidence that she had been swerving within her lane.

[35] She repeated that she found her driver's licence right away and that she gave her wallet to the officer for him to find the other documents.

[36] She denied being unsteady on her feet. She said she leaned on the cruiser for a "nano" second.

[37] She did not recall the officer demonstrating the use of the device. He just said "blow" and then "again". She denied fourteen attempts, but said that there were seven or eight. She did not know what she was arrested for. She said she was not read her rights, just asked if she wanted a lawyer to which she said, "No, I just want to call my husband". But the officer said he would call but she did not want that so she said no to any calls. She agreed she did not tell the officer she wanted her husband to get the name of a lawyer.

Francois Champagne's Evidence

[38] Francois Champagne testified that he is her husband. He confirmed the lunch and the two beer. He confirmed his wife was upset at home and acting strangely. After she was seen dropping books off a shelf, he said he wanted to give her some space so he took the dog for a walk. He did not see her drinking any alcohol at home. He left for band practice but called home to ask if she was ok. She answered and said she was. He said she sounded ok. There was no hint that she was leaving him. He saw a scribbled note on the table at some point.

[39] He next saw her at the detachment the following morning.

Issues to be Determined

[40] On this evidence the following issues arise:

1. Has the Crown met its high onus of proof beyond a reasonable doubt on the count of impaired;

2. Was the refusal or failures willful and intentional and established so beyond a reasonable doubt;

3. Was the Approved Screening Device demand unlawful or a violation of Section 8 and Section 10(b) because it came after the officer said he had reasonable and probable grounds to arrest for impaired? At that point, it is argued he should have provided the reason for the arrest, the right to counsel, the caution and moved expeditiously to the detachment so that the right to counsel could be properly exercised;

4. Were the accused's Section 10(b) rights violated by not allowing the accused to call her husband apparently in order to obtain the name of a lawyer;

5. The missing video tape evidence should result in a stay or other remedy it is submitted;

6. The lack of privacy in a cell warrants a stay, it is argued;

7. The failure to release the accused until her husband arrived to pick her up the next morning also mandates a stay of proceeding.

Credibility Analysis

[41] It is necessary to make findings of credibility and reliability. A W.D. analysis is appropriate with respect to the trial issues in order to focus on the high onus on the Crown.

[42] The Charter issues carry an onus of proof on a balance of probability standard. On the Section 8 issues the Crown must meet this onus. It is the responsibility of the defendant on the other issues.

[43] I find Ms. Dunphy to lack credibility and to be generally unreliable. She is a person whose evidence is untrustworthy. Where her evidence conflicts with Constable Hicks' and Constable Mahon's evidence I reject her evidence and find it does not raise a reasonable doubt.

[44] I find that she was swerving within her lane and did cross the centre line as testified to by Constable Hicks. I do not believe she was swerving because she was looking for signs in part, because she also said she dropped back from the truck so she could see signs, and also, in part, because it is not believable. Ordinary drivers do not swerve in their lanes in order to see signs. Her explanation is a falsehood.

[45] She was not truthful when she said Constable Hicks did not demonstrate the proper use of the Approved Screening Device.

[46] She lied again when she testified that Constable Hicks just said "blow" and "again" repeatedly without explaining what she was doing wrong. I find he did demonstrate and explain the proper use of the Approved Screening Device. Constable Mahon saw him do so.

[47] I reject her evidence that she wasn't warned about having a last chance and the consequences of a refusal.

[48] I reject her evidence that she easily found her driver's licence and showed it to the officer. I accept as Constable Hicks testified that he had to point it out to her and that she had difficulty in removing it from her wallet. I reject her evidence that she handed her wallet to Constable Hicks and that he searched for the other documents. Police do not accept wallets when they ask for documents.

[49] There are also other difficulties with her evidence. For example, after she dropped the books from the shelf and scared her husband, did she go upstairs and play with the dog, or did he go upstairs to give his wife space by taking the dog for a walk. Both appear to have happened contemporaneously which cannot be. Their evidence is unreliable. Did he call home and speak to her, or was it as she said that he simply left so she left a note and left him. I do not know. This is not crucial evidence, but it does demonstrate the lack of reliability of the accused's evidence.

Charter Applications

Missing Video Evidence

[50] With those findings in mind, I will address the issues raised.

[51] With respect to the request for a stay of proceedings due to the alleged missing video evidence at the station, I dismiss that application as I am not satisfied on a balance of probabilities that any such video ever existed or if it did that it showed anything relevant. There is no evidence as to what it captured.

[52] There is no evidence as to how long video recordings are kept.

[53] On the evidence before me there are no grounds to consider a stay or any other remedy for the video images, if any, being destroyed by a computer glitch months later. There is no evidence of police negligence.

Privacy in Cell

[54] There is also a submission that the accused is entitled to a stay or some other remedy for the fact that she had to use the toilet in the cell while being video monitored and thus her privacy was violated. There is little expectation of privacy in a cell. Monitoring of cells is a necessary fact of life.

[55] There is no evidence that the camera was on or that anyone was monitoring the video feed.

[56] If counsel was suggesting that there should be applied some greater degree of privacy for women as compared to men, that would be sexist in nature and discriminatory based on gender which is offensive to our Charter values.

[57] This is not a case such as R. v. Mok 2012 ONCJ 291, where there was a full record before the court as to the nature of the monitoring as well as what was actually being seen by the monitors. Without such evidence it is speculative to say her privacy interests were violated.

Detention Until Husband Arrived

[58] If there is a remedy being sought for not releasing the accused from the station until her husband arrived to pick her up, it is denied. Until her husband arrived there was no one to release her to. The detachment is on the side of a busy highway. There is no public transit. There was nowhere for her to go except and until her husband arrived. She did not live in the area. She did not know anyone in the area. It would have been inappropriate to release her out the front door with no place to go or anyone to help her when her husband was on his way.

Section 10(b) Rights at the Detachment

[59] In my view there was no violation of Section 10(b) at the detachment. She was asked if she wanted to call a lawyer. She said she wanted to call her husband. It was explained to her that the only telephone call allowed at that time was to a lawyer. She did not say that she wanted to talk to her husband because he could provide her with the name of a lawyer. She did not want the officer to call her husband and if she couldn't call her husband herself then she did not want any call made.

[60] This is not a violation of Section 10(b). The officer cannot read minds. The accused has some responsibility to be diligent. She was not. I do not believe she wanted a lawyer as she did nothing which could be construed as being consistent with that desire. She did not ask about a list of lawyers, duty council, a phone book, the internet, or anything else, all of which would be common tools to make contact with a lawyer and which would be available, one would expect, at a police station.

[61] On a balance of probabilities I reject the submission that she did want to call a lawyer. However, even if she did, on her evidence there is no violation of Section 10(b) because she was not diligent.

Trial Issues: Impaired Driving and Refusal

[62] I will address the impaired and refusal counts before ending with a discussion of the validity of the Approved Screening Device demand.

Impaired Driving

[63] I find the officer to be correct and accurate when he described the swerving within the lane and the crossing of the centre line. I reject the accused's explanation for the swerving and I reject for obvious reasons her subsequent denial that there was not any swerving. I find there was an odour of alcohol on her breath, she was unsteady on her feet, her movements were slow and deliberate, she leaned against the vehicle for support, she demonstrated confusion as to the location of her purse, she couldn't find her driver's licence which had to be pointed out to her and she had difficulty removing her driver's licence from her wallet.

[64] In my view this is more than sufficient to meet the test of impairment of the ability to drive as set out in the Supreme Court of Canada's decision in Stelato. She was not grossly impaired but the inability to keep her vehicle going straight, her unsteadiness, her confusion, the impairment of her fine motor skills all lead to one conclusion, that her ability to drive was impaired to some degree by alcohol. She will be found guilty of that count. I note in coming to this conclusion that I did not take into account any evidence subsequent to the Approved Screening Device demand or subsequent to the point at which Constable Hicks believed he had reasonable and probable grounds to arrest.

Refusal to Provide Sample

[65] There is no evidence that the accused lacked the physical ability to blow for the necessary length of time.

[66] With respect to the refusal, it is clear that whether she was given seven or ten opportunities to blow, that she did not blow. Each and every time she would blow for 2 or 3 seconds and stop. This was despite repeated explanations that she must continue until the officer said stop. This is not a difficult concept to grasp. "Blow into the machine until I say stop" is hard to misinterpret or be confused about especially when the accused is also shown how to do it by the officer on at least two occasions which I find occurred. I reject the accused's evidence on that point.

[67] During these opportunities to blow I am also mindful that on one occasion the accused inhaled, then exhaled, then put her mouth to the Approved Screening Device and gave a brief puff. On another occasion she inhaled, then blew into the officer's face and then puffed in the machine. It is clear she was playing games with the officer.

[68] I also accept the evidence that she was warned of the consequences of her failure to provide a suitable sample but continued to pretend to blow.

[69] It is clear and established beyond a reasonable doubt that the accused intentionally failed, repeatedly, to provide an adequate sample into an Approved Screening Device. I apply the test set out in R. v. Porter, 2012 ONSC 3504.

[70] No issue was raised that the Approved Screening Device in question was in fact an Approved Screening Device or that it was working properly or that Constable Hicks did not operate it correctly. She will be found guilty.

Validity of the Approved Screening Device Demand

Charter Violation Argument

[71] In doing so, it is obvious that I also reject the submission that the Charter was violated by the officer's making the Approved Screening Device demand after he subjectively believed he had grounds to arrest for impaired. The submission is that upon satisfying himself that he had the necessary grounds he should have complied with Section 10(b), arrested the accused and immediately provided her right to counsel and then should have held off collecting any further evidence from the accused until there had been either a waiver of Section 10(b) or an opportunity for the accused to exercise her Section 10(b) rights.

The Law: R. v. Orbanski; R. v. Elias

[72] R. v. Orbanski; R. v. Elias, 2005 SCC 37 sets out the law in this area which is that although a motorist is detained that his or her Section 10(b) rights are suspended for the duration of the screening process. The suspension of rights is justified under Section 1 of the Charter of Rights.

[73] At paragraph 47, the Court writes:

Whether a particular screening measure will fall within the scope of authorized police action is a question that necessarily calls for a case-specific inquiry. In more obvious cases of drinking and driving, observation of the driver alone may suffice for effective screening. But one can think of many examples in which observation of the driver through the open car window will not be sufficient to enable the officer to draw the line between those drivers with a permissible amount of alcohol in their body and those who have reached the impermissible level.

Justification for the Limit on the Right to Counsel

[74] With respect to why the suspension of Section 10(b) is justified the Court writes at paragraphs 54 to 58 the following:

There are four criteria for assessing whether a limit on a Charter right is reasonable and justified: (1) the objective of the law must be sufficiently important; (2) there must be a rational connection between the limit and the objective; (3) the infringement of the right must be no more than is necessary to meet the objective; and (4) there must be proportionality between the deleterious and the salutary effects of the measure that limits the right or freedom protected by the Charter (R. v. Oakes, [1986] 1 S.C.R. 103; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835).

There is no question that reducing the carnage caused by impaired driving continues to be a compelling and worthwhile government objective.

As discussed earlier, because of the nature of the activity, it is necessary that the police be empowered to use effective roadside screening methods to assess the level of impairment of drivers so as to ensure the safety of all users of the highways. Hence the use of reasonable screening methods within the scope that we have discussed, and the implicit abridgment of the right to counsel, are rationally connected to the state objective.

The infringement on the right to counsel is also no more than necessary to meet the objective. As described earlier, the scope of authorized police measures is carefully limited to what is reasonably necessary to achieve the purpose of screening drivers for impaired driving. Further, the limitation on the right to counsel has strict temporal limits -- there is no question that the motorist who is not allowed to continue on his way but, rather, is requested to provide a breath or blood sample, is entitled to the full protection of the Charter right to counsel.

Finally, the limitation meets the proportionality test. As the Crown concedes, the evidence obtained as a result of the motorist's participation without the right to counsel can only be used as an investigative tool to confirm or reject the officer's suspicion that the driver might be impaired. It cannot be used as direct evidence to incriminate the driver: see R. v. Milne (1996), 107 C.C.C. (3d) 118 (Ont. C.A.), at pp. 128-31, leave to appeal refused, [1996] 3 S.C.R. xiii; R. v. Coutts (1999), 45 O.R. (3d) 288 (Ont. C.A.); R. v. Ellerman, 2000 ABCA 47, [2000] 6 W.W.R. 704 (Alta. C.A.); and R. v. Roy (1997), 117 C.C.C. (3d) 243 (Que. C.A.). The rationale for this limitation was first set out in Milne and is founded on the purpose of the s. 10(b) right to counsel. This Court described the purpose of the right to counsel in R. v. Bartle, [1994] 3 S.C.R. 173, in these words, at p. 191:

The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations: R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is "detained" within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty: Brydges, [1990] 1 S.C.R. 190 at p. 206; R. v. Hebert, [1990] 2 S.C.R. 151, at pp. 176-77; and Prosper, [1994] 3 S.C.R. 236. [Emphasis in original.]

As noted by Moldaver J.A. in Milne, at p. 131, it is not difficult to find proportionality in so far as the liberty interest of the detained motorist is concerned because roadside screening techniques "take but a little time and cause only minor inconvenience to the motorist". He stated, however, that "the same cannot be said about the 'risk of incrimination' component if, in fact, the motorist can be compelled to create self-incriminating evidence that can later be used at trial" (p. 131). I agree with this conclusion. As stated in Milne, this limitation applies only to evidence obtained from the compelled direct participation by the motorist in roadside tests and, in our case, police questioning about alcohol consumption. Moldaver J.A. explained further, at p. 132:

I am not referring to observations the officer might make of the driver while carrying out other authorized duties. Thus, by way of example, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, blood-shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment.

[75] As one can see an important consideration is whether or not during the time when Section 10(b) is suspended the police are collecting self-incriminatory evidence. As explained the results of the Approved Screening Device demand are not incriminatory at all. They cannot be relied upon in convicting an accused. They are only admissible if the accused raises the issue of whether the officer had reasonable and probable grounds to make a Section 254(3) demand and only for that purpose.

[76] As was more recently stated in R. v. Suberu, 2009 SCC 33, at paragraph 38:

Once engaged, s. 10(b) imposes both informational and implementational duties on the police. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation imposed on the police under s. 10(b), requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. This obligation also requires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so. (My emphasis added).

[77] The court there distinguishes between incriminatory and non-incriminatory evidence in determining whether the requirements of Section 10(b) have been met. I find that to mean that gathering from a detainee information that is not incriminatory and is not evidence admissible at trial does not necessarily violate Section 10(b), even if done so prior to the detainee having an opportunity to consult counsel. I believe that is an important consideration in this case.

Analysis of Competing Case Law

[78] I was also referred to the following case law.

R. v. Minielly

[79] In R. v. Minielly 2009 YKTC 9, the officer believed he had reasonable and probable grounds to arrest for impaired. However, he made an Approved Screening Device demand which the accused refused. He was charged with impaired and refusal. The court found him not guilty of both offences. It held the officer's evidence was not sufficient to establish the impaired and once the officer believed he had reasonable and probable grounds for a Section 254(3) demand then the purpose for the demand under s 254(2) no longer existed and the Approved Screening Device demand was unlawful. It is not an offence to refuse to comply with an unlawful demand and thus the acquittal. Cozens J. noted the lack of lawful authority for a police officer to make a Section 254(2) demand after the officer has already arrested the accused for impaired driving. He then went on to discuss the situation similar to the case at bar where the Approved Screening Device demand is made before the arrest but after grounds to arrest are formed. The court concludes that once an officer has formed his or her reasonable grounds, that an offence under Section 253 has occurred, there is no longer any need to screen the driver in order to determine whether the Section 254(3) demand can be made. The court explains that this is because the procedure allowed by Section 254(2) has been authoritatively found to be a violation of Section 10(b) but one that is saved by Section 1 of the Charter so long as it meets the Oakes test which includes a requirement that the infringement of the right must be no more than is necessary to meet the objective.

[80] The court goes on to address the conundrum this can create, at paragraphs 60 to 65 inclusive:

60. I fully appreciate that it may appear contrary to logic and public policy, that a police officer who has in his or her possession a roadside screening device that could provide objective scientific evidence as to whether there existed reasonable and probable grounds for the police officer's belief that a s. 253 offence had been committed, is not allowed to use the roadside screening device because of his or her having previously subjectively concluded that these reasonable and probable grounds existed. (My emphasis).

61. If a police officer in such a situation cannot make a roadside screening device demand, then a subsequent determination by the trial judge that, viewed objectively, the grounds are insufficient, would lead to an acquittal on a s. 253(b), now 253(1)(b), charge. Subjective beliefs are exactly that, subjective, based upon the individual police officer and his or her individual experience and training, and, when at all possible, the subjective belief should logically be supplemented by the use of objective evidence such as the roadside screening device.

62. Police officers often have to withstand intense cross-examination on their observations of bloodshot eyes, slurred speech, odour of liquor, flushed face and so on, all of which may comprise ticked boxes on a police Report to Crown Counsel, or brief notes in a notebook, and which may appear somewhat lifeless or as a rote recitation in court at trial, as compared to what the officer actually observed and experienced at the time. The ability to produce a "fail" result on the roadside screening device in support of these other observations often has the effect of eliminating the need for police officers to testify as to their reasonable and probable grounds, and can often result in guilty pleas where otherwise a trial would take place.

63. The problem, however, is that the two-stage scheme set up in s. 254(2) and (3) of the Criminal Code, as considered by the courts, does not allow for a police officer to make a s. 254(2) demand to confirm his or her reasonable and probable grounds of belief. Section 254(2) reads specifically that its allowable use is to screen a driver who the police officer suspects has alcohol in his or her body, and the courts have held that this s. 10(b) breach of the right to counsel is justifiable under s. 1 of the Charter, in part on the basis that this suspension of the s. 10(b) rights is necessary to allow police officers to investigate impaired driving offences.

64. If s. 254(2) included wording to the effect that "... or wishes to confirm the belief in the existence of reasonable and probable grounds to believe a s. 253 offence has been committed", it may be that previous courts applying s. 1 of the Charter would have concluded that a s. 254(2) demand could be justified even after the reasonable and probable grounds have been formed, given the brief delay involved, the limited use to be made of the results of the roadside screening device, and the important objective of investigating impaired driving offences in order to remove impaired drivers from the roads and deter others from driving while impaired.

65. This is not, however, the way that s. 254(2) reads or has been considered in law, and I am not prepared to find an implied authority in s. 254(2), or in the s. 1 analysis of previous courts, to allow a breath demand to be made after the police officer has formed the subjective reasonable and probable grounds to believe that a s. 253 offence has been committed. Therefore, I find that such a demand is unlawful and outside of the legislative scope and purpose of s. 254(2).

[81] Having made the above statement of law, the court goes on to say at paragraph 66, that:

This does not mean that a police officer who has formed a subjective belief that he or she has reasonable and probable grounds to believe that a s. 253 offence has been committed is bound by that belief. A police officer is entitled to change his or her opinion. An initial belief by a police officer that he or she possessed reasonable and probable grounds to believe that the driver of a motor vehicle was impaired by alcohol may be altered by additional information and reduced to a suspicion.

[82] With that statement what was a clear statement of law is now murky. It appears grounds can come and go, a demand under Section 254(2) could be valid at one point where earlier it was not and vice versa. I will come back to this and what I see as a problem which includes as the Court noted at paragraph 79:

It is an interesting aspect of this case that Crown counsel finds himself in the position of arguing that the police officer did not have the requisite reasonable and probable grounds, and defence counsel is arguing that he did.

[83] In my experience when an interpretation of the law ends up in such a topsy-turvy result, one that could be seen as absurd, then that interpretation needs a closer look.

R. v. Bonilla

[84] In R. v. Bonilla 2009 YKTC 40, Cozens J. addresses another aspect of this issue. In that case the officer testified that he subjectively believed he had reasonable and probable grounds with or without the Approved Screening Device, but made the Approved Screening Device demand anyway which resulted in a fail which led to Bonilla's arrest. The officer's evidence was that he subjectively believed he had reasonable and probable grounds to make a Section 254(3) demand without the Approved Screening Device due to the erratic driving (straddling the centre line and two swerves toward the curb and associated drifting or wandering of the vehicle), glassy and bloodshot eyes, the odour of alcohol on his breath and the admission that he had been drinking.

[85] The court noted however, that there were no mobility or balance problems, slurred speech, flushed face, soiled or disorderly clothing or behaviour problems. The court went on to say that the accused had not been speeding and brought his vehicle to a stop without any difficulty.

[86] Also, the court noted that after crossing the centre line, swerving, drifting and wandering that the accused drove for nine blocks apparently without further difficulties.

[87] In those circumstances the Court found that despite the officer testifying that he had reasonable and probable grounds that he actually did not and really only had a suspicion that there was alcohol in the accused's body and therefore the s. 254(2) demand was lawful. The Court cites Saxberg with approval in so finding.

R. v. Saxberg

[88] In R. v. Saxberg, 1998 OJ 898, Summary Conviction Appeal, the accused had been in an accident, had bloodshot eyes and smelled of alcohol. The officer made an Approved Screening Device demand but testified that he believed he had reasonable and probable grounds for the arrest prior to making the demand. The trial judge, however made findings that the officer did not have reasonable and probable grounds and that therefore the use of the Approved Screening Device was for its approved investigatory screening purpose and therefore no breach of Section 10(b) occurred. The conviction was upheld.

R. v. Carty

[89] R. v. Carty 1998 ABQB 2, 1998 AJ 50, QB, was also cited to me. The result in Carty is similar to Saxberg. However to the extent Carty turns on the statement by the court that the "Constable was using the device as a means of eliciting self-incriminatory evidence from someone whom he believed had committed a criminal offence" then respectfully I must disagree. Section 254(2) did not provide inculpatory evidence for the police. The results are not self-incriminating. The results are only admissible if an issue is raised as to whether the officer had reasonable and probable grounds to arrest and only for that purpose. I decline to apply Carty.

R. v. Hudder

[90] Although a brief, oral decision made without supporting case law, I find, perhaps not surprisingly, my reasons in R. v. Hudder, 2006 O.J. 5853 to be valid. This is the decision Constable Hicks was referring to as part of his reasons for making an Approved Screening Device demand. At paragraphs 8 to 10 of Hudder, I address what I believe is a fallacy, that is that, if the officer has to use the Approved Screening Device then there cannot be a conviction for Impaired because even the officer at the scene only had a suspicion which could not be the equivalent of proof beyond a reasonable doubt. I held:

As it was raised by the defence in submissions on the Section 253(a) allegation, I will deal with one further issue and that is the fact that the officer administered an approved screening device test, which it was argued means she could not have been satisfied of her evidence establishing even reasonable and probable grounds let alone proof beyond reasonable doubt of impaired driving, or in the alternative, if she was satisfied then she should have arrested him immediately and not proceeded with a demand under Section 254(2) because it was not necessary and created delay in the provisions of right to counsel and the entire process of going to the station, the exercise of those rights and being provided an opportunity to do the breath tests as soon as practicable.

I do not agree with that position. It does not necessarily follow that because an officer decides to use an approved screening device as an investigative tool that the count under Section 253(a) is somehow fatally flawed. It is well-recognized that the decision to make a demand for an arrest is one that must be made relatively quickly without the opportunity for reflection and made with the knowledge that whatever decision is made will be painstakingly dissected and reviewed a number of months later at trial. Even if the officer is well-satisfied that the detained person is clearly impaired beyond a reasonable doubt it does not prevent the officer from obtaining further evidence with respect to the offence of Over 80 especially when one will later have to provide objective evidence for that decision. Going a step further to obtain objective grounds for belief is not inappropriate and in some cases is to be preferred. Further investigation through a statutory scheme, if reasonable in duration and scope, as it was here, is not objectionable so long at the evidence obtained is not used improperly. The failure on the approved screening device is not evidence that would be admissible except, for example, on a voir dire to determine if the officer had the necessary reasonable and probable grounds for a Section 254(3) demand. It is not evidence that I would take into account with respect to the offence under Section 253(a), nor would any utterances be likely to be admitted for that purpose. See Regina v. Milne, (1996), 107 C.C.C. (3d) 118 (O.C.A.).

Further, there can be cases of impaired driving where the individual may or may not be Over 80, and vice versa. It is not inappropriate for the officer to investigate both offences using this means available to her through statute and common law. Continuing to investigate even after reasonable and probable grounds exist is specifically allowed for in Regina v. Storrey, (1990), 53 C.C.C. (3d) 316 (S.C.C.), and the defence cannot argue that the police gathered more evidence than they needed.

Court's Analysis of the Approved Screening Device Demand

[91] Setting aside Hudder, I believe the following problems exist with the proposition that once an officer has the subjective belief in the reasonable and probable ground that an offence under Section 253 has been committed then an Approved Screening Device demand is no longer valid or authorized by law.

[92] The problem can be simply stated. What is an officer to do? It is fine for him or her to say, "I subjectively believe an offence has been committed," but that is only the first step in the test to establish if reasonable and probable grounds did in fact exist. The second part is whether that belief is objectively reasonable. How does the officer address that aspect at the roadside? He or she knows that months down the road, at trial, every word, every movement, every inference will be mercilessly dissected for any possible errors or frailties by persons skilled in vivisection.

[93] Sometimes whether the Officer objectively had reasonable and probable grounds will turn on how articulate the officer is, or how good a note-taker he or she is. This is not a desirable situation.

[94] There is also the case when although the officer testified he or she had reasonable and probable grounds that the trial judge will disagree. However, on a Summary Conviction Appeal the trial judge will be reversed because the Superior Court Judge accepted that the officer did in fact have reasonable and probable grounds. But then the Ontario Court of Appeal comes along and says, No, in this case the objective grounds for reasonable and probable grounds did not exist and will reinstate the trial judge's findings. Meanwhile, while all of this is going on, the officer figuratively remains at the side of the road saying, "what am I supposed to do?" "I think I have reasonable and probable grounds but that is no guarantee that a judge will agree." "How can I know that what I am doing is constitutional when I am not the one deciding that issue?" "If there was only some objective means by which reasonable and probable grounds can be established even though I think it unnecessary," the officer laments.

[95] This degree of uncertainty and unpredictability is unfair to the officers and hurts the efforts to enforce our drinking and driving laws. It leads to the absurdity of the Crown arguing that the court should disbelieve the officer when he or she says I had reasonable and probable grounds so that the subsequent Approved Screening Device demand is valid and the accused arguing that the officer had reasonable and probable grounds objectively speaking and therefore the ASD demand is invalid.

[96] This uncertainty, where reasonable and probable grounds can come and go at the scene as well as in the courts and the absurd results that can lead to, causes me to believe that Minielly, Bonilla and Saxberg are not good law with the greatest of respect. For example, in Minielly cited above at para 72, I believe that paras 60–62, inclusive, provide the answer to the question raised in para 63 and that para 64 makes a great deal of sense as to how Section 254(2) should be interpreted.

[97] Also, I do not understand how, in Bonilla, an officer can be told he did not have reasonable and probable grounds but only a suspicion where the officer testified he had reasonable and probable grounds and the evidence for that conclusion was the accused was straddling the centre line, swerving towards the curb, drifting and wandering in his lane, as well as there being the odour of alcohol on the breath and red and bloodshot eyes.

[98] Many a judge would say that is evidence of some degree, no matter how slight, that the person's ability to drive is impaired by alcohol and would convict. Yet other judges would say, on those facts that the officer had no more than a suspicion.

[99] Again, I repeat, what is an officer supposed to do?

[100] An answer is that the Section 1 justification for suspending Section 10(b) for the purposes of Approved Screening Device tests is not diminished where an Approved Screening Device demand is made even though the officer subjectively believes he or she has reasonable and probable grounds. The proportionality test is still met. The carnage on the highway remains a constant and the testing is brief in duration, minimally intrusive and for non-incriminating purposes.

[101] As well, I do not understand why an officer's subjective belief, as a matter of law, has to dictate whether he can further pursue an investigation. The officer knows his beliefs will be challenged and therefore could be found objectively unreasonable. Why then can the officer not take the next step and collect non-incriminatory evidence to support his subjective beliefs in an objective way. Why the dependence on subjective beliefs when objective evidence is readily available.

[102] In my view it makes no sense to deprive the officer, the courts and indeed the community the benefits, which cuts both ways incidentally, of reliable objective evidence as to whether further investigation is required.

[103] This situation is reminiscent of the one addressed in Bernshaw 1995, 1 S.C.A. 254 by S.C.C. in that there as well as here the Officer ran the risk of violating s. 10(b) in his efforts to comply with s. 8 of the Charter. The Court found this to be an unacceptable situation at para. 75:

I note that a potential problem which may arise from delaying the screening test, and which was discussed by my colleague in his reasons as well as by Arbour J.A., is whether the suspect is entitled to access to counsel when detained for a longer period. In the Thomsen case, it was held that the roadside screening procedure was a reasonable limit on one's right to counsel under s. 10(b) of the Charter. In my view, a delay in the order of 15 minutes in order to obtain a proper sample of breath is not inconsistent with Thomsen. It would indeed be strange for us to hold that the rights of some persons under one provision of the Charter (s. 8) must be sacrificed in order to preserve the limit on their rights under another provision (s. 10(b)).

[104] In this case the violation of Section 10(b) is justified under Section 1 as the Supreme Court of Canada wrote in Orbanski and the subjective belief by the officer did not change that.

[105] In these circumstances there is no violation of Section 8 or Section 10(b) of the Charter and the Charter application will be dismissed.

Honourable Justice R. Selkirk