Ontario Court of Justice

Old City Hall - Toronto

Court Information

Between: Her Majesty the Queen

And: Paulina Pita

Counsel:

• K. Erlick for the Crown
• D. Gomes for the Defendant

Heard: September 23-25 and October 15, 2013

Judge: Melvyn Green, J.

Reasons for Judgement

A. Introduction

[1] A Toyota rear-ended a taxi in central Toronto in the early hours of August 25, 2012. The police were called to the scene. They conducted a brief roadside investigation, including questioning Paulina Pita. They then arrested Ms. Pita and charged her with operating a motor vehicle while her ability was impaired by alcohol. She complied with a police demand that she provide suitable samples of her breath for the purpose of determining her blood alcohol concentration (BAC). She repeatedly expressed her desire to speak to a lawyer and ultimately spoke to duty counsel from the police station. Her BAC readings were well in excess of the legal limit, both at the time they were taken and, according to expert "back-projection" calculations, during the time she was alleged to have been driving. As a result, Ms. Pita (hereafter, the defendant) was also charged with operating a motor vehicle with a legally excessive BAC.

[2] The trial proceeded by way of a blended proceeding, the evidence of all witnesses, with two exceptions, applying to the defence-advanced Charter applications and the trial proper. The sole exceptions are the defendant and Sgt. Tsianos; their evidence applies to the Charter motions only. Apart from Sgt. Tsianos, the Crown-called witnesses include the taxi driver, a passerby who observed some events immediately following the collision, the arresting officer, a qualified breath technician and an expert witness respecting the defendant's BAC and likely impairment.

B. Evidence

(a) Introduction

[3] The initial witnesses to the defendant's demeanour after the accident were the taxi driver, Ivelin Pentchev, and a nearby pedestrian, Sean Lawson. Despite their face-to-face interaction with the defendant, neither testified as to any signs of alcohol inebriation or even consumption. The first officer to attend the scene of the collision (PC Sharon Leyva) did observe indicia of alcohol-induced impairment, as did PC Jeffrey Kell, a qualified breath technician, when he administered a series of BAC tests at the station a few hours after the defendant's arrest. Sgt. Tsianos' only active participation in the investigation involved taking a statement from Lawson. However, his recall of the sequencing of events following his arrival and the content of his brief exchanges with PC Leyva may bear on the identification of the driver and the grounds for the related arrest and statutory demands made of the defendant. As a result of delays in securing the defendant's BAC, the Crown could not rely on the statutory "presumption of identity". As a result, Inger Bugyra, an expert witness, was called to back-calculate the defendant's BAC at the time of her alleged driving. She also offered opinion evidence as to the operation of the approved instrument used to assess the defendant's BAC and the defendant's likely impairment at the time of the accident.

[4] Finally, and solely respecting the Charter motions, the defendant testified as to the reasons she answered PC Leyva's questions at the scene of the collision, the sense of intimidation she experienced in the breath room, and her misunderstanding of her rights to legal counsel as a result of faulty or incomplete police representations.

(b) The Civilian Witnesses

(i) Ivelin Pentchev

[5] Ivelin Pentchev is a Co-Op cabbie in Toronto. He was slowly trawling for customers as he drove westbound on Dundas West, between Spadina and Bathurst, at about 3 a.m. on August 25, 2012. Another vehicle collided with the back of his taxi, smashing the rear bumper. Pentchev pulled over and got out of his cab. A woman approached from the driver's side of the offending car saying, "What the fuck is this!" This was ninth time someone had rear-ended Pentchev's cab. The woman appeared more nervous than angry.

[6] Pentchev described the car that hit his cab as an old blue Toyota Celica. (It appears blue-green in police photos filed as exhibits.) The woman who approached him looked about 23 to 25 years of age. She had dark hair and white skin and was "well dressed" — in blue jeans, although Pentchev was not sure. There were no other women in the area at the time. Pentchev had never previously seen the woman but he was sure he would recognize her if he saw her again. He then identified the defendant in court as the woman who had approached his cab and spoken to him. To be clear, other than obvious court staff and the Assistant Crown Attorney at the lectern in front of Pentchev, the only other woman then in the very small courtroom was the defendant. In cross-examination Pentchev allowed that he believed the defendant was the driver because he saw the police arrest her. In re-examination he affirmed that the defendant was the woman who first approached his cab after the collision.

[7] Pentchev also saw a young, well-dressed man walk from the passenger side of the Celica. After the woman's brief exchange with Pentchev, she and the young man appeared to join company somewhere out of his sightline, returning together some minutes later. Both were present when the police arrived. The man somehow disappeared from Pentchev's view before he saw the woman being arrested. Pentchev did not see either the man or the woman actually emerge from the car following the collision.

(ii) Sean Lawson

[8] Sean Lawson, a 34-year old dry-waller, heard the sound of a collision. He immediately turned in its direction and saw that a green car had plowed into the rear of a taxi. He called 911 within approximately five minutes of the accident.

[9] Lawson immediately ran to the car to offer assistance. There were two occupants: a female in the driver's seat and a male in the front passenger seat. The male told Lawson, "We're fine". Lawson overheard the man say to the woman, "We gotta get out of here". And then: "Give me that". The man took something from the female driver, left through the passenger door and disappeared.

[10] Lawson estimated that the female driver was his age, Caucasian with dark hair and an average build. She was wearing blue jeans and a white tank top. He had never seen her before and testified that he would not be able to recognize her, as "it's been too long". The woman left the car and spoke with the cabbie. He recalled the police arriving but not their dealings with anyone: "it's all quite a blur to me", he explained.

(c) The On-Scene Police Witnesses

(i) Cst. Sharon Leyva

[11] P.C. Sharon Leyva was dispatched to the scene of the collision at 3:21 a.m. The information radioed to her included that a Toyota driven by a woman had rear-ended a taxi, that the driver may have been intoxicated, that an apparent friend had given the driver some gum, that an ambulance was present, and that the woman driver and a passenger had left and then returned to the scene.

[12] Leyva arrived about 20 minutes after receiving the radio dispatch. An ambulance was on scene. The Co-Op cab's rear end was damaged, as was the "whole front end" of the Toyota. The Toyota's passenger air bag was deployed, the passenger side of the front window was smashed and the keys were still in its ignition. A woman — who later identified herself as the defendant Paulina Pita — was speaking to a member of the ambulance team. She was wearing grey dress pants, a white tank top and black shoes with two-inch heels, and she was chewing gum. Leyva approached the woman and asked her a series of questions. In response, the defendant advised that:

• Her name was Pauline;
• The blue car was hers;
• She was driving the car at the time of the collision;
• She was with a friend;
• She was coming from the Village (although she could not recall the name or location of the bar);
• She had had three or four drinks; and
• She was neither carrying ID or had any in the car.

[13] PC Leyva then had a brief conversation with Sgt. Tsianos, her supervising officer at the scene. He advised her that a witness had identified the defendant as the driver of the blue Toyota and, further, had informed him that there had been a male passenger in the car. Leyva asked the defendant where her friend was. The defendant denied having a passenger with her at the time of the collision. In cross-examination, Leyva insisted that her conversation with Tsianos occurred before the defendant's arrest and that other than the information conveyed by Tsianos her only source of knowledge as to the defendant being the driver of the Toyota was the defendant herself.

[14] According to Leyva, there was an odour of alcohol on the defendant's breath. Her speech was slurred. Her eyes were glassy: shiny, unfocused, wet and glazed. She seemed confused. And she had difficulty answering some of the officer's questions. Leyva formed the opinion that the defendant's ability to drive was impaired by alcohol and that she was the driver of the Toyota. Accordingly, she arrested the defendant for alcohol-impaired operation of a motor vehicle at 3:45 a.m. Leyva founded her opinion as to the defendant's impairment on the totality of a number of factors: her demeanour, difficulty in answering some questions, red and glassy (or glossy) eyes and confused state and, as well, the strong odour of alcohol and the occurrence of a collision. Leyva agreed that the defendant was steady on her feet. The officer's belief that the defendant was the driver of the Toyota was premised on her conversation with the defendant and the information she received from Tsianos.

[15] From the back of her memo book, Leyva then read the defendant her rights to counsel. Asked if she understood, the defendant shook her head "no". Translating from the formal advisory, Leyva asked, "Do you want to call a lawyer now?" The defendant began to cry. Leyva tried again, explaining that the defendant had a right to a lawyer and that if she did not have one she, Leyva, could put her in touch with free duty counsel. The defendant said she understood and would like to speak to a lawyer. She did not name one. Leyva then read the defendant an approved instrument demand. The defendant was clearly agitated and crying. She began to talk about her work, food and her dog and, finally, acknowledged that she understood the demand and would comply.

[16] Leyva attended on the defendant's car. She located two driver's licenses, both in the defendant's name and both bearing a photo of the defendant.

[17] With the defendant in tow, Leyva drove directly to Traffic Services (the location of the nearest qualified breath technician) at 3:58 a.m. Leyva turned on the on-board camera en route and advised the defendant that she was being recorded and that the tape could be used in court. The defendant, who was very upset, accused Leyva of trying to shut her up. They arrived at Traffic Services at 4:05 a.m. and, after waiting in the sallyport, the defendant was ushered before the duty sergeant at approximately 4:19 a.m.

[18] A videotape of the defendant's booking was admitted, although the Crown does not rely on anything said by the defendant during the parade in proof of the charges she faces. The defendant appears emotional, agitated and apprehensive through much of her booking. Although occasionally argumentative and sarcastic, the defendant does not appear to suffer any deficits in verbal skills or physical co-ordination or agility.

[19] According to Leyva, and as confirmed by the videotape, the defendant was on the verge of crying, frequently asked the officer not to leave her, and did not fully comprehend why she was there or what was going on in the booking room. Leyva attributed the defendant's emotional state to her intoxication, but conceded that her accident and arrest might have contributed to her demeanour. The defendant repeatedly demanded to immediately speak to a lawyer. The booking sergeant asked, "Do you have a lawyer or do you want duty counsel"? Directly asked if she wanted to speak to duty counsel, the defendant twice answered "yes". She also said she hurt and wanted an ambulance, although she could not identify any injury, had spoken to ambulance attendants at the scene and had not previously shared any concerns for her physical well-being with Leyva. The defendant said she had consumed four alcoholic drinks, at most. She claimed not to comprehend the initial breath demand in the booking room, and then did not answer whether she understood when the demand was repeated. She again adamantly insisted that she "want[ed]" and "need[ed] a lawyer right now". The defendant did not identify an attorney by name. Leyva escorted her from the booking room to an interview room at 4:37 a.m.

[20] Once in an interview room, the defendant, according to Leyva, begged the officer not to leave her. Leyva explained that she was going to call a lawyer for her. She was "not really" able to communicate with the defendant as the defendant did not appear to understand the officer. Leyva called the duty counsel number at 4:47 a.m., leaving an appropriate message. Leyva understood that arrestees who do not have their own counsel but wish to speak to a lawyer were to be put in touch with duty counsel. The defendant never indicated she wanted any lawyer other than duty counsel to be called, nor did she ever ask to contact anyone to secure the name of a lawyer.

[21] Leyva recalled the duty counsel number at at 5:05 a.m. and a third time at 5:22 a.m. Duty counsel finally called the station at 5:29 a.m., some 42 minutes after Leyva's first call. Leyva did not speak to the defendant in the interim. She escorted the defendant to a privacy booth when her calls were returned, advised her that duty counsel was on the phone and to knock on the door when the call was completed. From Leyva's perspective, the defendant was "in there for a long time". Leyva checked on three occasions and the defendant appeared to be involved in a conversation. At 5:48 a.m., another officer told Leyva he saw the defendant pressing buttons on the phone. Leyva entered the booth and asked the defendant why she had not knocked. The defendant denied knowing that she was supposed to knock at the end of the call or being earlier instructed to do so.

[22] Leyva then escorted the defendant to the breath room where she provided a sample of her breath to PC Kell. She was less agitated than she had been earlier in the evening. The defendant was returned to an interview room at 5:59 a.m. She was back in the breath room to provide a second sample at 6:17 a.m. Leyva had no recall of Kell speaking harshly to the defendant.

[23] The defendant waited in an interview room from 6:23 a.m. to 8:33 a.m. when Leyva served her with a number of documents she had been preparing in the interim. She was released from the station at 8:46 a.m., in a somewhat calmer state. At no time had the defendant expressed any dissatisfaction with her conversation with duty counsel or advance a desire to speak to any other lawyer.

(ii) Sgt. Dimitrios Tsianos

[24] Sgt. Dimitrios Tsianos arrived at the scene of the collision at 3:40 a.m. He had little investigative involvement other than to take a roadside statement from Sean Lawson. His evidence, like that of the defendant, bears solely on the Charter claims advanced by the defence.

[25] Tsianos first checked in with Leyva (who was with the defendant) and then canvassed the cabbie's welfare. Lawson came forward when Tsianos inquired if there were any witnesses to the accident. In their initial conversation, Lawson advised Tsianos that the driver was a white female wearing jeans and a tank top, and that there had been a male passenger in the car. Tsianos then told Leyva that a witness had identified a female driver; he did not share any other of the information obtained during his brief exchange with Lawson. He returned to and took a statement from Lawson within 30 seconds.

(d) Further Evidence Bearing on the Defendant's Impairment and BAC

(i) PC Jeffrey Kell

[26] PC Jeffrey Kell is the qualified breath technician who took breath samples from the defendant at the Traffic Services station on August 25, 2012. He used an approved instrument, an Intoxilyzer 8000C. It had passed a series of tests he conducted before first seeing the defendant and he had no concerns about the device's performance or integrity. The defendant provided suitable breath samples into the 8000C at 5:58 and 6:21 a.m., registering BACs of 156 and 144 respectively. The defence conceded the accuracy of these readings. Kell did not issue a Certificate of a Qualified Breath technician as the readings were taken outside the two-hour period that would otherwise permit the Crown to rely on the statutory presumption that the BAC readings at the time of the impugned driving were the same as those recorded on the approved instrument.

[27] A video recording of the breath room testing was admitted into evidence. The defendant appears unresponsive to several opening inquiries as to whether she understands that she is under arrest. Kell raises his voice with each repetition and the defendant finally answers, "Yes". Kell, when testifying, explained that he was simply trying to get the defendant to co-operate. Following the provision of her first sample, at 5:58 a.m., the defendant appears to lean over to view the results. Kell warns the defendant to "mind her own business" and to sit back in her chair. He then tells her "there's an easy way to go through this process and a less easy way". The defendant, he comments, has "clearly started to go down" the latter path and he cautions her not to go there. Kell, in cross-examination, agreed that the effect of his words on the defendant may have been intimidating, but he denied that this was his intention. Kell stands 6' 5" and weighs about 270 pounds. The defendant is nearly a foot shorter and likely less than half Kell's weight.

[28] Kell described the defendant as having watery and bloodshot eyes, somewhat flushed skin tone and the odour of an alcoholic beverage on her breath. He agreed that her watery eyes might have been attributable to her occasional crying. He also agreed that she was co-operative, that the effects of alcohol appeared "moderate", that her speech was not slurred and that there were no signs of physical unsteadiness. His observations of the defendant's demeanour were made close to three hours after the driving conduct at issue.

(ii) The Expert Toxicologist: Inger Bugyra

[29] Inger Bugyra has been a forensic toxicologist at the Centre of Forensic Sciences (CFS) for about 15 years. The defence accepted her as a qualified expert in the three fields in which she was so tendered:

• The absorption and distribution of alcohol in humans;
• The effects of alcohol; and
• The operation of the Intoxilyzer 8000C as an approved instrument.

[30] Bugyra reviewed the 8000C test records and a Crown synopsis of the events, along with an instrument set-up report. She concluded that the 8000C was in "proper working order" at the time the defendant's BAC was assessed. She also prepared a Report in which, relying on the 8000C readings, she back-calculated the defendant's BAC to the estimated time of the impugned driving. Applying a series of critical assumptions, Bugyra determined that the defendant's BAC between 3:00 a.m. and 4:00 a.m. on August 25, 2012 was between 140 and 205 mg. of alcohol in 100 ml. of blood (140-205 mg/100 mL). The critical assumptions (the first two of which are founded on toxicological science) include:

• An alcohol elimination rate of between 10 and 20 mg. of alcohol per hour;
• Allowance for a plateau of up to two hours (that is, that an alcohol consumer's BAC does not vary for about two hours);
• No substantial consumption of alcohol (approximately one drink) within the 15 minutes preceding the incident; and
• No alcohol consumption between the incident and the breath test.

The projected BAC range, as Bugyra wrote in her Report, is "independent of the gender, height, weight and age of the individual". Holding everything else constant, if the back-projection target time was amended to 2 to 3:30 a.m., the defendant's estimated BAC is between 145 and 225 mg. of alcohol in 100 ml. of blood. If the target window was narrowed to 3 to 3:20 a.m., Bugyra estimation of the defendant's BAC in that interval is between 150 and 205 mg/100 mL.

[31] Alcohol, Bugyra explained, is a central nervous system depressant. Its consumption affects motor and intellectual faculties and impacts negatively on such functions as multi-tasking, vigilance, focus, risk-assessment, reaction time and judgement of speed and distance. As put in Bugyra's Report, "the degree of impairment produced by alcohol is dependent on BAC". In Bugyra's expert opinion, impairment becomes significant at a BAC of 50 mg/100 mL, and grows more significant with increased alcohol consumption. The ability of an individual with such significant BAC readings to operate a motor vehicle "is", in Bugyra's expert opinion, impaired. (A BAC of 140 mg/100 mL is the most defence-favourable of Bugyra's back-projection estimates.) Motor skills such as physical stability and speech, may also be affected by alcohol, but performance deficits in this arena may well be influenced by the difficulty of the task and the consumer's experience with or tolerance for alcohol. Accordingly, the ability of a person with a BAC of 140 to drive is still impaired even though he or she may not display conventional physical indicia of impairment. Put otherwise, alcohol tolerance better masks impairment of physical performance than it does impairment of cognitive performance.

[32] Bugyra agreed that about three-quarters of her two-page Report is a verbatim reproduction of standardized template devised by CFS toxicologists (of whom she was one) to respond to requests for expert BAC back-projections. Any differences of opinion among the scientists, Bugyra testified, were reconciled through the drafting of the back-projection template with which the members of the CFS team all ultimately concurred. Bugyra insisted that toxicological confidence in the universal effects of a BAC of 140 mg/100 mL on the ability to drive precluded the need for any scrutiny of indicia of impairment in individual cases. Further, the scientific impossibility of calculating the rate of alcohol absorption did not, in Bugyra's view, adversely affect the validity of the back-projection ranges she had calculated. Bugyra had some difficulty explaining the science that underlay the third and fourth of the assumptions critical to the formation of her expert opinions, but she rejected the suggestion that her approach or that endorsed by the CFS reflected a substitution of doctrine for science.

(e) Defence Evidence on the Charter Applications

[33] Paulina Pita, the defendant, was 37 at the time of her trial. She worked for the City of Toronto as a security control room operator. Following the collision she walked to the nearby Toronto Western Hospital where she had previously been employed. She saw a former co-worker as she entered the emergency area, felt embarrassed, and left before she was assessed or treated. She had no visible injuries. The defendant then returned to the scene of the collision and there answered PC Leyva's questions. Given that she had just been in an accident, she believed she "had to" return to the scene. Once there she felt obliged to answer any police questions.

[34] The defendant accepted the accuracy of Leyva's account of the Q's and A's at the side of the car. She went to a club and drank alcohol that night, although she could not recall what she had been drinking or how many drinks she had consumed. She did not consume any drugs. She could not recall when she left the club, but she was driving at the time of the collision and the car was hers. And, yes, she hit the back of the taxi at about 3:15 that morning. She was alone in the car at the time of the accident. No one, she insisted, was in the car with her. A man on the street had escorted her to the hospital. He shouted, "She needs help" on entering the facility and left within a minute. She had not seen the man before or since and never learned his name.

[35] The defendant's two driver's licenses were a result of her having applied for and received a second when thought she had lost the first. She initially could not remember when she first relocated her original license and then recalled that she had found it before the accident. In any event, she certainly knew she had one valid license in her car at the time of the accident.

[36] The defendant could not recall her conversation with Leyva in the police vehicle on the way to the police station or in the interview room at the station. She did not have a lawyer at the time of her arrest and did not have the name of any lawyer. She spoke to duty counsel because it was the "only option" given her. Elaborating in cross-examination, she explained that her options, as she understood them, were, first, to contact her own lawyer if she had one and, second, if she did not have her own lawyer, she could accept a duty counsel lawyer. The defendant was upset and crying at the time Leyva read her legal rights and equally distraught when she was re-advised in the police station booking room. On watching the video of her appearance in the booking room the defendant acknowledged that she had accepted the duty sergeant's invitation to call duty counsel but explained that as she "didn't have a lawyer, who else was I going to call?"

[37] The defendant spoke to duty counsel for only a few minutes. She did not feel she had gleaned any information from the conversation. Duty counsel did not ask her why she was under arrest. She could not recall if he asked her about the accident. She was not happy with duty counsel's advice. Although criminally-charged in the past, she had then only dealt with student lawyers. She wanted to call her sister to inquire whether she knew any lawyers. The defendant did not tell Leyva that she was dissatisfied with the advice she received from duty counsel, that she wanted to speak to her sister or that she wanted to speak to another lawyer. She had the impression she could only make one phone call and no one suggested otherwise. She did not appreciate that she had any option open to her to secure legal advice other than a single call to duty counsel. Had she been given the option of locating a lawyer of her own choosing, the defendant says she would have used the Internet or the Yellow Pages to find counsel — as she had in selecting the lawyer who represents her at this trial.

[38] The defendant did not feel intimidated by PC Leyva. She did feel intimidated by PC Kell in the breath room. Kell's stern response to the defendant's delay in answering his initial questions left her feeling uncomfortable and "afraid". His "easy way/hard way" caution had a similar effect, inhibiting her from asking any questions.

[39] The defendant conceded that she has memory problems and tends to forget things. She further conceded that she did not have a clear recollection of the events of the evening in question. She did not, however, feel "drunk" that evening.

C. Analysis

(a) Introduction

[40] Defence counsel alleges a number of Charter breaches. If established, various exclusionary remedies, he says, should properly follow. Depending on which, if any, of the purportedly impugned evidence is ruled inadmissible, such order or orders could effectively terminate the defendant's prosecution.

[41] More specifically, the defence alleges that defendant's answers to police questions at the scene of the collision were statutorily compelled and, thus, cannot be used by the state for any incriminatory purpose without offending the defendant's Charter s. 7-protected right to silence. There is, says the defence, insufficient information available to identify the defendant as the driver of the car once the defendant's responses to police questioning are properly excluded, inevitably resulting in acquittals on both charges.

[42] Even if there is extraneous evidence implicating the defendant as the driver (for example, the driver's licenses Leyva found in the Toyota car after she made the breath demand and the observations of Lawson and Pentchev, neither of whom spoke with Leyva directly), the defence position is that such evidence did not form part of the matrix of information available to Leyva at the time she made her s. 254(3) breath test demand of the defendant. Accordingly, says the defence, once the defendant's roadside answers are set aside, the Crown cannot meet its burden of establishing the lawfulness of the BAC search and seizures for which a lawful demand serves as an essential predicate: R. v. Haas (2005), 200 C.C.C. (3d) 81 (C.A.); leave dismissed, Dec. 15, 2005 (S.C.C.). Apart from the absence of witness evidence identifying the defendant as the driver, the defence asserts the defendant's statutorily-compelled statements cannot be considered in assessing the reasonableness of Leyva's belief that the defendant was impaired. Further, says the defence, the question of the legal propriety of the breath demand is independently flawed because the remaining strands of information respecting the defendant's impairment-by-alcohol never cumulatively rise to the statutorily requisite threshold of "reasonable grounds". In either event, the demand is unlawful and the subsequent search and seizure of the defendant's breath samples and BAC readings, and the derivative expert regressive extrapolations that follow, are thus in breach of the defendant's Charter s. 8 rights. On the defence theory, they should all rightly be excluded, resulting in an inevitable acquittal on the charge of "over .80".

[43] The defence also claims that the informational component of the Charter s. 10(b) right to counsel afforded the defendant fell woefully short of constitutional standards. The police approach to this important right effectively conveyed the misimpression that the services of duty counsel were the defendant's only option where, as here, she wished legal advice but did not have her own lawyer. This police breach of their constitutional obligations affords an alternative basis for excluding the breath test readings and the back-projections that followed. In addition, the defence claims that the intimidating conduct of the qualified breath technician during the breath testing procedure — the "manner of search", in the language of s. 8 jurisprudence — so departed from Charter norms as to constitute an independent breach of the defendant's rights to privacy or, at minimum, reinforces the fitness of the exclusionary remedy sought.

[44] Assuming the Charter applications do not fully frustrate the prosecution, the defence position on the merits is that the Crown evidence fails to establish to the requisite criminal standard that the defendant was the driver of the Toyota, thus precluding a conviction for either of the charges she faces. Alternatively, the Crown has failed adequately prove that the defendant's ability to operate a motor vehicle was impaired at the time of the accident. Further, and with respect to both charges, Ms. Bugyra's back-projection evidence is so fraught with uncertainties and abstract generalities as to render unreliable her expert opinion as to the defendant's BAC and impairment at the time of the alleged offences. In the result, says defence counsel, and irrespective of any constitutional considerations, acquittals should follow.

(b) The Lawfulness of the S. 254(3) Demand

(i) Introduction

[45] Section 254(3) of the Criminal Code authorizes a police officer, inter alia, to, by demand, require breath samples from a suspected impaired driver where the officer has "reasonable grounds to believe" that the suspect has, within the preceding three hours, operated a motor vehicle while the person's ability to do so is impaired by alcohol. A lawful demand is a statutory and constitutional prerequisite to any breath test results that follow. Put otherwise, BAC readings secured absent compliance with s. 254(3) are not only unauthorized but, as well, violative of a defendant's s. 8 rights to be secure against unreasonable search and seizure. Such breach, where established, may afford an exclusionary remedy pursuant to s. 24(2) of the Charter.

[46] The "reasonable grounds to believe" formulation in s. 254(3) applies to both the identity of the defendant as the driver and, as is much more commonly the contested issue, the impairment of that person's ability to drive. Further, the test has both subjective and objective components: R. v. Censoni (2001), 22 M.V.R. (4th) 178 (Ont. S.C.), at para. 32. As said by Provincial Court Judge MacDonnell (as he then was) in the oft-quoted case of R. v. Cooper (1993), 46 M.V.R. (2d) 231, at paras. 12 to 14:

This provision [s. 254(3)] bestows a significant power upon a peace officer to interfere with the liberty of the citizen. It requires, however, as preconditions to [the lawful exercise of] the grant of power, that the officer form a particular belief, and that the belief be based on reasonable and probable grounds. …

[Applying the approach to arrest powers endorsed by the Supreme Court in R. v. Storrey (1990), 53 C.C.C. (3d) 316], the question to be addressed is whether, on the basis of the record before the court, a reasonable person placed in the position of [the arresting officer] could conclude that there were reasonable and probable grounds to believe that the accused's ability to operate a motor vehicle was impaired by alcohol.

The additional "question to be addressed" in the instant case is whether such grounds exist to conclude that the defendant was the driver of car involved in the collision. Further, all relevant information known to the officer must be considered in conducting these assessments. MacDonnell J.'s advice in R. v. Cooper, at para. 15, is here again helpful:

[A] review of whether a peace officer's belief was based on reasonable and probable grounds involves more than a search for some circumstance which might be said to offer support for the belief. It is the totality of the circumstances known to the officer - those which undermine the belief as well as those which support it - which must be assessed to determine if the requirement of reasonable and probable grounds has been met.

[47] The test of reasonable grounds is, ultimately, one of credibly based probability — a well-recognized standard for arbitrating the intersection of law enforcement and individual interests. It is very much an intermediate standard of persuasion. As said by Hill J. in R. v. Censoni, supra, at para. 43:

Reasonable grounds in the context of a s. 254(3) breath demand is not an onerous threshold. It must not be inflated to the context of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom.

[48] The defence does not strongly press, nor do I see any basis for inferring, that PC Leyva did not subjectively hold the statutorily requisite beliefs. The issue, rather, is whether those beliefs — with respect to both the defendant being the driver of the Toyota and, if so, that her ability to drive was then impaired by alcohol — are founded on reasonable grounds. The defence argument as to the purported breach of the defendant's s. 7 right to silence goes primarily to the first of these two essential prongs, that of the driver's identity. The allegedly insufficient probity of the totality of the information bearing on the defendant's alcohol-induced impairment speaks to the second. I address each of these factors below.

(ii) Identifying the Driver: The Statutory Compulsion Point

[49] In its seminal decision of R. v. White (1999), 135 C.C.C. (3d) 257, esp. at paras. 30 and 70, the Supreme Court held that the protection against self-incrimination provided by s. 7 of the Charter renders statements made under compulsion of provincial motor vehicle legislation requiring the reporting of accidents inadmissible against the declarant in criminal proceedings. The Highway Traffic Act, R.S.O. 1990, c. H.8 (the HTA) provides the statutory predicate for the application of this principle in Ontario. Sub-section 199(1) of the Act commands as follows:

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 in damage to property apparently exceeding an 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 …

Crown counsel here concedes that the damage occasioned by the accident exceeds the minimum quantum prescribed by the Regulations. Further, in R. v. Soules (2011), 2011 ONCA 429, 273 C.C.C. (3d) 496, at paras. 25-44, the Court of Appeal affirmed that the ratio of R. v. White similarly prohibited the utilization of "statutorily compelled admissions" to found a s. 254(3) breath demand. Such statements, said the Court, are "not admissible for the purpose of establishing grounds for making either the A[pproved] S[creening] D[emand] or the breath demand" under s. 254.

[50] The test for determining the exercise of statutory compulsion in the context of motor vehicle accident reports, as set out in R. v. White, at para. 75, is:

…whether, at the time that the accident was reported by the driver, the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given.

The burden of establishing such "honest and reasonably held belief" rests on the person — almost invariably the driver — asserting the protection of s. 7. The standard of proof, as in all such Charter claims, is on a balance of probabilities: R. v. Soules, supra, at para. 29.

[51] In resisting the defence position, Crown counsel relies, in part, on the authority of R. v. Parol, 2011 ONCJ 292, [2011] O.J. No. 2641 (C.J.), at para. 7, for the proposition that,

[T]he defendant must establish three things to come within the protection of White:

1. That he was in fact compelled by statute to provide a report.
2. That the statements he made were a "report" within the meaning of the compelling statute.
3. That he gave his report in the honest and reasonable belief that he was compelled by the statute to do so.

The absence of "a 'report' within the meaning of the compelling statute" is advanced as particularly fatal. R. v. Parol has been distinguished on this point in a number of subsequent decisions: see, e.g., R. v. Bhangal (2013), 46 M.V.R. (6th) 78 (Ont. S.C.); R. v. Wenham, 2013 ONSC 7431, [2013] O.J. No. 5535 (S.C.). In R. v. Treliving, 2013 ONCA 412, [2013] O.J. No. 2849 (S.C.), Glithero J., after a careful review, concluded, at para. 58, that,

As to the statements of principle in the interpretation of the Highway Traffic Act and when it creates a statutory compulsion in contravention of s. 7, I am of the respectful view that Parol should not be followed.

I am of a similar view. While I am not persuaded, in the end, that the defendant's s. 7 claim is meritorious, I wish to make clear that it is not because of her failure to formalize or complete a "report". Such precondition to immunity from the incriminating use of a defendant's statutorily compelled statements is an unnecessary impediment to realization of the letter and spirit of the Supreme Court's decision in White and, ultimately, inconsistent with its rationale.

[52] Situations, although rare, may occur where an officer investigating an accident testifies to a suspected driver volunteering that he is only answering the officer's questions because of "the law". One can also conceive of situations where an officer cautions a suspect about his or her legal obligation under the HTA before a roadside interrogation. In most circumstances, however, satisfaction of the legal burden effectively requires a defendant to take the stand, testify to his or her belief as to the legal obligation that compelled their self-incriminatory "report" to the police, and have the honesty and reasonableness of their belief tested by the Crown through cross-examination.

[53] No magical incantation or detailed appreciation of the legislation is necessary to invoke s. 7 in these circumstances. As said by Wein J. in R. v. DaCosta (2001), 156 C.C.C. (3d) 520 (Ont. S.C.J), at para. 17,

…the obligation by statute to report involvement in a motor vehicle accident is a well-known obligation even if the average citizen does not know all precise details of the statutory requirement. Drivers in general know that they have to report an accident and that they have to "talk to the police" about it.

The defendant Pita's burden was, here, no greater than that described in R. v. DaCosta. In the absence of any other evidentiary basis upon which to advance a s. 7 claim, the defendant was effectively obliged to assert that she felt compelled to speak to the police because, at minimum, she knew the law required her to report the accident and/or that there were potential legal consequences for failing to do so. Absent cross-questioning that impugned her credibility, reliability or understanding, little if anything more was required to attract the immunity afforded by s. 7. (See R. v. Treliving, supra, esp. at paras. 47-48 and 55-65.)

[54] Crown counsel prudently asked no questions of the defendant with respect to her evidence bearing on this issue. The defendant said, in effect, only that she felt she "had to" return to the scene and, once there, felt obliged to answer questions put to her by a police officer. This, in my view, was insufficient to place her self-incriminatory statements outside the reach of the state. An abstract sense of duty or mis-appreciation of one's obligations in the face of an officer's questions does not establish a s. 7 claim in these circumstances. The defendant never drew a nexus between her personal sense of obligation and the appropriate external legal driver so as to come within the White doctrine. In the end, I do not know whether she acted out of altruism, generalized compliance with police authority, a sense of moral obligation or civic duty or, as the Charter jurisprudence commands, a legal compulsion to report the accident. The defendant, at simplest, has not met that burden necessary to attract the s. 7 protection she claims.

[55] In the result, the defendant's roadside admission that she was the driver of the Toyota at the time of the collision affords ample objective basis for PC Leyva's belief in the same proposition. Put otherwise, there are reasonable and probable grounds for this prong of the s. 254(3) demand. Not incidentally, the defendant's uncontradicted admission also satisfies the Crown obligation to prove at trial the "operates a motor vehicle" element of the two offences with which the defendant is charged under s. 253(1) of the Code.

[56] In view of my determination of the "White" issue, I do not endeavour to resolve any of the inconsistencies, if such they are, between the evidence of PC Leyva and that tendered through Sgt. Tsianos. For the same reason, I decline Crown counsel's invitation to conclude that there were reasonable grounds apart from the defendant's roadside admissions for Leyva's belief that the defendant was the driver of the car involved in the collision at the time she, Leyva, made the breath samples demand.

(iii) The "Impaired Ability to Drive" Point

[57] Any assessment of the reasonableness of an officer's opinion as a driver's impairment must look to the totality of circumstances available to the officer. The exercise is not mathematical, nor is it resolved by merely compiling competing inventories of factors pointing to and away from impairment. However, the grounds upon which the officer relies must be objectively supported. While it is their combined effect that ultimately matters, the circumstances or factors said to contribute to the officer's belief may have to be individually evaluated to properly assess their cumulative probity. (See, Gentles v. Toronto (City) Non-Profit Housing Corp. 2010 ONCA 797, 326 D.L.R. (4th) 649, at para. 57.)

[58] The general approach to the roadside assessment of impairment need be read in the context of a complex matrix of Criminal Code and provincial legislative and enforcement regimes intended to prevent or at least minimize what some appellate courts have characterized as the carnage attributable to drunk driving on Canadian highways. The standard for police interference with individual liberties cannot be diluted beyond that constitutionally required, but it must be remembered that the alcohol induced impaired driving of which an officer must believe on reasonable grounds to justify a breath demand need be no greater than any degree of impairment of the ability to operate a motor vehicle: R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.); affd. , [1994] 2 S.C.R. 478.

[59] The indicia of impairment upon which PC Leyva relied in forming her opinion included:

• An odour of alcohol on the defendant's breath;
• The defendant's glassy or glossy eyes;
• The defendant's apparent difficulty in answering some questions;
• The defendant's somewhat slurred speech;
• The defendant's somewhat confused state; and
• The occurrence of a collision.

Leyva conceded that the defendant was steady on her feet, that she was generally responsive to the questions put to her, and that "shiny" and "wet" (two of the several words Leyva used to describe the glossy appearance of the defendant's eyes) were not uncommon among persons who were not impaired. And although unsaid, Leyva had no sober-state exposure to assist her in assessing any compromise of the defendant's driving-related faculties as she had never previously encountered Ms. Pita. On the other hand, the defendant not only bore the odour of alcohol but also admitted to the consumption of three or four drinks. Further, not only was there a collision but the defendant, as operator of the Toyota, had driven into the rear of the taxi, causing considerable damage in circumstances that readily implied error on the part of the car's driver. I appreciate that the defendant's physical co-ordination and verbal faculties appear only modestly impaired in the videotape of her booking hall parade and even less so in the breath room video recorded several hours after the incident. However, the defendant's demeanour and performance at the police station is not what was apparent to Leyva at the time she made her demand.

[60] To repeat Hill J.'s instruction in R. v. Censoni: "Reasonable grounds in the context of a s. 254(3) breath demand is not an onerous threshold". In my view, the constellation of factors apparent to PC Leyva and upon which she founded her belief affords an objective basis for her opinion that the defendant's "ability to operate the vehicle" was, to at least some degree, "impaired by alcohol". The nature of the collision and the odour and admissions of alcohol consumption when combined with the defendant's demeanour and even modest confusion provide reasonable grounds for the officer's opinion. None of these factors is individually determinative and the probative force of each varies. Nonetheless, their combined weight supports more than mere suspicion; rather, it amounts to the "reasonable grounds" prescribed by s. 254(3).

[61] To be clear, my conclusion on the breath demand issue is not dispositive of the question of "impairment" at trial. The information available to PC Leyva at the time she made the breath demand objectively supports her belief that the defendant was at least somewhat impaired. Even accepting that the defendant was driving the Toyota, that information alone does not in my view crest the threshold of proof beyond reasonable doubt required to ground a conviction for the offence of impaired operation of a motor vehicle.

(iv) Conclusion Respecting the S. 254(3) Demand

[62] At bottom, I am satisfied as to the propriety of the s. 254(3) demand and, as a result, do not give effect to the defence argument that the subsequent seizure and analysis of the defendant's breath and BAC were unreasonable or in breach of her s. 8 Charter rights.

(c) Charter S. 10(b): The Right to Counsel

(i) The Alleged Infringement

[63] The right to counsel is enshrined in s. 10(b) of the Charter: "Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right". It is long settled that this fundamental right has two principal components, generally characterized as informational and implementational. The defendant's claim is primarily with respect to the former. She says, in essence, that she was not properly informed or was misled as to her s. 10(b) rights and, as a result, was denied the meaningful choice of counsel to which she was constitutionally entitled. Somewhat expanded, the defence position is that the defendant, as a result of the police mis-recitation of her s. 10(b) rights, understood that duty counsel was the only option available to her if she did not have her own lawyer. The constitutionally available option she would have preferred, but the one not offered, was to select and contact a lawyer of her own choosing for the advice she repeatedly sought. The police failure to comply with the informational component of their constitutional duties amount, says the defence, to a breach of the defendant's s. 10(b) right to counsel of choice, the just and appropriate remedy for which is the exclusion of the defendant's breath test results and the expert derivative evidence founded on these readings.

[64] The general architecture of s. 10(b) has evolved through a series of Supreme Court judgments. One of these, R. v. Bartle (1994), 92 C.C.C. (3d) 289, well summarizes the critical role of the informational component as it applies to cases such as the one before me. As said by Lamer C.J.C. for the majority at pp. 300-302:

The Purpose of Section 10

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. 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. Under s. 10(b), a detainee is entitled as of right to seek such legal advice "without delay" and upon request. As this Court [earlier] suggested, the right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process.

The Duties under Section 10(b)

This Court has said on numerous previous occasions that s. 10(b) of the Charter imposes the following duties on state authorities who arrest or detain a person:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

The first duty is an informational one which is directly in issue here. The second and third duties are more in the nature of implementation duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel.

Importantly, the right to counsel under s. 10(b) is not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended. Furthermore, the rights guaranteed by s. 10(b) may be waived by the detainee, although the standard for waiver will be high, especially in circumstances where the alleged waiver has been implicit.

Under these circumstances, it is critical that the information component of the right to counsel be comprehensive in scope and that it be presented by police authorities in a "timely and comprehensible" manner. Unless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence. Moreover, in light of the rule that, absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution, it is important that the standard caution given to detainees be as instructive and clear as possible.

Indeed, the pivotal function of the initial information component under s. 10(b) has already been recognized by this Court: …a "person who does not understand his or her right cannot be expected to assert it". In …circumstances which suggest that a particular detainee may not understand the information being communicated to him or her by state authorities, a mere recitation of the right to counsel will not suffice. Authorities will have to take additional steps to ensure that the detainee comprehends his or her s. 10(b) rights. Likewise, this Court has stressed on previous occasions that, before an accused can be said to have waived his or her right to counsel, he or she must be possessed of sufficient information to allow him or her to make an informed choice as regards exercising the right.

To conclude, because the purpose of the right to counsel under s. 10(b) is about providing detainees with meaningful choices, it follows that a detainee should be fully advised of available services before being expected to assert that right, particularly given that subsequent duties on the state are not triggered unless and until a detainee expresses a desire to contact counsel. [Citations omitted; underscoring in original.]

[65] In brief evidentiary review, PC Leyva promptly informed the defendant of her s. 10(b) rights by reading her the standardized "Right to Counsel" as it appeared in the officer's memo book. The relevant portions of that recitation include the following:

It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. … Do you understand? Do you wish to call a lawyer now?

The defendant indicated that she did not understand. She began to cry. Leyva then moved off the page and simplified the advisory, explaining only that the defendant had a right to a lawyer and that she could be put in touch with free duty counsel if she did not have one. The defendant now said she understood and that she wanted to speak to a lawyer. In her voir dire testimony, the defendant said she understood the choices put to her by Leyva as twofold: contact her own lawyer for advice or if she did not have her own lawyer, as was indeed her situation, accept the advice offered through duty counsel. The duty sergeant's repetition of the defendant's right to counsel at the station was of the same binary order: "Do you have a lawyer or do you want duty counsel?" The latter option was effectively reinforced by the sergeant several times asking the defendant if she wanted to call "duty counsel".

[66] Other than the initial reading of her formal rights to counsel (which she expressly indicated she did not understand), the defendant was never informed that she had a "right to telephone any lawyer you wish". Had she been so advised, and had she understood this option, the defendant testified that she would have searched for a lawyer of her own choosing with whom to consult rather than simply accept the police offer to connect her to an effectively anonymous duty counsel.

[67] The defendant never complained about speaking with duty counsel or the content of her legal consultation until she testified at trial. She never sought a second call, asked for an opportunity to contact her sister for advice (a contemplation she first shared during her testimony) or identified any lawyer by name. The textual propriety of the initial right to counsel advisory (as read from PC Leyva's memo book) and the defendant's failure to diligently assert this right (including the right to counsel of choice) would, in the ordinary course, terminate the defendant's claim for Charter relief: see, e.g., R. v. Zoghaib, [2005] O.J. No. 5947 (S.C.); affd. [2006] O.J. No. 1023 (C.A.); R. v. Littleford, [2001] O.J. No. 2437 (C.A.). What, for me, distinguishes this line of authority is the defendant's apparent — indeed, undisputed — inability to understand the articulation of her s. 10(b) rights when they were initially and correctly communicated to her. As said in R. v. Prodan, 2007 ONCJ 551, [2007] O.J. No. 4567 (C.J.), at para. 10: "The accused must not only be read their rights to counsel, they must also understand them". (See also: R. v. Vanstaceghaem (1987), 36 C.C.C. (3d), 142 (Ont. C.A.).)

[68] Once the conventional right to counsel advisory is conveyed to a detainee, the police ordinarily need do nothing more to comply with the informational component of their s. 10(b) duties. As said in R. v. Evans, (1991), 63 C.C.C. (3d) 289 (S.C.C.), at 305:

In most cases one can infer from the circumstances that the accused understands what he has been told. In such cases, the police are required to go no further …

However, in my view the instant fact pattern here invokes an inquiry into the application of the "special circumstances" exception to this rule as set out in R. v. Bartle, supra.

[69] "Special circumstances" have been held to include severe intoxication (R. v. Mohl (1987), 34 C.C.C. (3d) 435 (Sask. C.A.); , [1989], 1 S.C.R. 1389), mental incapacity (R. v. Evans, supra), language comprehension difficulties (R. v. Vanstaceghaem, supra) and emotional distress (R. v. Averill, [1988] B.C.J. No. 2414 (Co. Ct.); R. v. S.L.H., 2004 BCSC 410, [2004] B.C.J. No. 610 (S.C.).) Here, there is little room to doubt that the defendant did not initially understand her constitutional rights to counsel. She said exactly that when first, and correctly, read her s. 10(b) rights. PC Leyva, in an effort to assist the defendant by dumbing-down the advisory, presented the defendant's s. 10(b) rights as a choice of her own counsel, duty counsel, or, in effect, no counsel at all. Other than the initial memo book recitation, the defendant was never told that if she did not have her own lawyer she could contact (or at least endeavour to) any counsel she wished — not only duty counsel. Further, as Leyva testified, the defendant appeared bewildered in the booking room where her rights were again reframed. She did not, in Leyva's testimony, fully comprehend why she was there or what was occurring. There was, however, no room for confusion about the defendant's desire to promptly speak to a lawyer. In these circumstances, the police, I find, were obliged to ensure that the defendant understood the proper scope of her s. 10(b) rights to counsel.

[70] Where, as said in R. v. Evans, supra, "there is a positive indication that the accused does not understand his right to counsel, the police cannot rely on their mechanical recitation of the right to the accused; they must take steps to facilitate that understanding. (See also: R. v. Devries (2009), 2009 ONCA 477, 95 O.R. (3d) 721 (C.A.), at para. 38.) Those "steps" were not here taken. Again citing Bartle:

[B]efore an accused can be said to have waived his or her right to counsel, he or she must be possessed of sufficient information to allow him or her to make an informed choice as regards exercising the right.

The informed right to counsel contemplated by the Supreme Court in this passage necessarily includes the defendant's "counsel of choice" — not the state's choice as occurred by effectively funnelling the defendant to duty counsel without advising her of any alternative. Accordingly, I am satisfied that "special circumstances" obtained, they were known to police dealing with the defendant, and yet the police failed to ensure that she adequately understood the scope of her rights to counsel. The defendant's s. 10(b) claim is thus made out.

(ii) The Question of Remedy

[71] By way of remedy for the s. 10(b) infringement the defence seeks an order excluding the direct and derivative results of the defendant's breath tests. The appropriate analysis on such s. 24(2) Charter application is that directed by the Supreme Court in R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1. As summarized at para. 71 of that decision:

[W]hether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. … [A] court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

Directly relevant to the facts and findings driving the exclusionary assessment before me is the Court's clear advice to trial court judges at para. 111:

While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is … less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. (Emphasis added.)

(See, in this regard, the recent decision of the Court of Appeal in R. v. MacMillan (2013), 2013 ONCA 109, 114 O.R. (3d) 506, esp. at para. 92.)

[72] The first factor addresses the seriousness of the Charter-infringing state conduct. I do not, to be clear, find bad faith on the part of the participant officers or any other misconduct that brings their behaviour even close to the more egregious end of the fault spectrum. PC Leyva attempted, if inadequately, to advise the defendant in lay terms of her s. 10(b) rights when it became apparent that the defendant did not understand the standard-form advisory. It was also PC Leyva that advised the booking sergeant, in response to the latter's inquiry, that the defendant had been afforded her rights to counsel. The duty sergeant could have done more, but it unfair to fault her with professional negligence or a conscious departure from her constitutional obligations in circumstances where she relied on another officer's uncorrected account of her purported compliance with the informational component of s. 10(b).

[73] Rightly, defence counsel only faintly advanced the conduct of the breath technician, PC Kell, in the breath room as an independent basis for finding a breach of the defendant's s. 8 rights or of such magnitude as to warrant an exclusionary remedy. The fall-back, but more viable, defence position was that Kell's sharp words form an appropriate part of any s. 24(2) analysis — both, it would appear, with respect to the gravity of the breach and its impact on the defendant's rights. I return to the "impact" assessment in due course but, to be clear, I do not find that the intimidating effect of Kell's unfortunate choice of language was intentional. Further, his ill-framed attempt to prevent the defendant from inspecting the results of her first breath-testing procedure seem justifiable, rather than gratuitous or simply mean-spirited, given what I take to be his natural concern to protect the integrity of the Breathalyser protocol and admissibility of any test results.

[74] While the gravity of the breach weighs, if marginally, on the side of exclusion, the second and third factors are situated on the other side of the fulcrum. As said in Grant, the collection of breath sample evidence "is relatively non-intrusive". Further, the defendant did secure legal advice — however unhelpful she characterized it at trial — during the course of a several-minute conversation with duty counsel. While the defendant testified as to various grievances flowing from her failure to be fully advised of her rights to counsel, she never voiced any of these dissatisfactions to the officers attending to her. She may, as she testified (and quite reasonably given her emotional state), have felt too intimidated by the breath technician's chastisements to pose any questions in his presence. However, she was most definitely not intimidated by PC Leyva (as she frankly acknowledged) and yet she shared none of her concerns with this officer who, it is clear, she trusted to be her ally and advocate and several times begged not to leave her side. I can find no authority for the imposition of a constitutional burden of clairvoyance on the police.

[75] As regards the third criterion, it cannot be gainsaid that the final factor — society's interest in an adjudication on the merits — likewise favours admission. The impugned evidence is crucial to the Crown prosecution of the case. In addition, the reliability of the breath test results can only enhance the truth-seeking function of the criminal trial process.

[76] The final s. 24(2) step involves a balancing. As explained in Grant, at para. 85:

Having made these [three] inquiries, which encapsulate consideration of "all the circumstances" of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.

I appreciate, of course, that "long-term", "prospective" and "societal" interests inform the ultimate assessment: Grant, at paras. 68-70. Nonetheless, most of the mandated inquiries favour admission. It is also more than insignificant that the defendant's BAC readings were here close to twice the legally prescribed limit and that she was involved in a collision for which, on the facts before me, responsibility can be assigned to no one but herself. In conducting this balancing, I also note that each of the offences with which the defendant is charged admits to no disposition other than conviction upon a finding of guilt.

[77] The Court of Appeal decision in R. v. Wilding (2007), 2007 ONCA 853, 229 C.C.C. (3d) 507 (Ont. C.A.) is of assistance in the ultimate resolution of this issue. That case also dealt with a claim of denial of counsel of choice and the fitness of the remedy of exclusion of the accused's Breathalyzer results. Although decided under a pre-Grant (and undeniably more defence-favourable) s. 24(2) analytical framework, the Court of Appeal held, at paras. 16 and 17, that:

In this case, we are satisfied that the exclusion of reliable evidence needed to establish the serious offence with which the respondent was charged would do more harm than good to the administration of justice. The breach here was neither flagrant nor wilful and as we have already observed, the evidence did not substantiate a finding of institutional indifference to individual rights. Accordingly, the repute of the justice system would suffer if the evidence were excluded.

I am of the same mind: a proper balancing leads me to decline the application to exclude the direct and derivative evidence of the defendant's breath test results.

(d) The Prosecution on its Merits

[78] Having dismissed the defence applications respecting evidence that, if excluded, would terminate the prosecution, I turn to an assessment of the Crown evidence successfully led at trial. I have earlier alluded to my satisfaction, to the appropriate legal standard, that the defendant was the driver of the Toyota that collided with the rear of the taxi. Apart from the defendant's answers to PC Leyva's roadside questions, Leyva's observations of the defendant in conversation with the ambulance attendants, the evidence of both civilian Crown witnesses as to the defendant's presence in or in close proximity to the Toyota's driver's seat, and the location of her driver's licenses in that vehicle leave me with no doubt in this regard. Accordingly the residual issues are whether the defendant's BAC exceeded the prescribed limit at the time of the accident and whether her ability to operate a motor vehicle was then impaired by alcohol. The Crown case with regard to both of these considerations rests largely (although not exclusively) on the evidence adduced through the CFS toxicologist, Inger Bugyra.

[79] It may be recalled that Ms. Bugyra's expert opinion rested on four critical assumptions. Two of these were situational (that is, the absence of "bolus drinking" and the consumption of any alcohol between the collision and the Intoxilyzer tests) and were not challenged at trial. Defence counsel's attack on the expert's opinion focused on those two remaining assumptions, both of which may be characterized as propositions of general, rather than fact-specific, scientific validity: the alcohol elimination rate and that regarding the operation of a "plateau". The Court of Appeal had occasion to address the probative value of these latter assumptions in R. v. Paszczenko (2010), 81 C.R. (6th) 97. The Court concluded that both assumptions, as relied on by Ms. Bugyra and as set out in the Report she authored and adopted at trial, are amenable to the evidentiary doctrine of judicial notice. With rare exceptions that do not apply to the case at bar, the Court directed, at para. 66, that there is,

…no impediment to judges taking judicial notice of both the "plateau" and "elimination rate" assumptions underlying the expert toxicologist's reports. They are assumptions, with underlying facts, that "are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy" in the scientific field of forensic toxicology and in the jurisprudence.

(See also: R. v. Phillips (1988), 42 C.C.C. (3d) 150 (Ont. C.A.).)

[80] I see no reason to do other than take judicial notice of the challenged assumptions that underlie the formulation of Ms. Bugyra's expert opinions and, accordingly, adopt her conclusions. There is no basis to doubt her "back-projections" of the defendant's BAC during the timeframe in which the accident occurred and when I am satisfied the defendant was driving the car. Although the testimonial and video-recorded evidence of the defendant's demeanour and conduct leave some ambiguity as to her impairment, any residual doubt is overwhelmed by the expert opinion evidence, which I again accept, as to the alcohol-induced impairment of the defendant's ability to drive at the relevant time.

D. Conclusion

[81] For the reasons I have just set out, I find the defendant guilty of both charges upon which she was arraigned. I invite counsel's submissions as to whether one or the other of the two charges should be provisionally stayed in view of the rule against multiple convictions.

[82] I would be remiss if I did not extend my sincere gratitude to both counsel for their conscientious and courteous carriage of the prosecution and defence of this sometimes-challenging case.

Released on December 19, 2013

Justice Melvyn Green