Court Information

Information No.: 15-0485

Date: 2015-12-17

Ontario Court of Justice

East Region

Parties

Her Majesty the Queen

v.

Danielle Cartier

Before the Court

The Honourable Mr. Justice Grant Radley-Walters

Heard: October 5th, November 5th and 6th, and November 27th, 2015 at Pembroke

Released: December 17th, 2015

Charge

Section 253(1)(a) of the Criminal Code of Canada – Impaired driving by one or more drugs

Appearances

Counsel for the Crown: Anya Kortenaar

Counsel for Danielle Cartier: Victoria Legris

Reasons for Judgment

Facts

[1] The accused is charged under s. 253(1)(a) of the Criminal Code of Canada alleging that on the 22nd of April, 2015 at the Township of Horton in the County of Renfrew, that she did operate a motor vehicle while her ability to operate a motor vehicle was impaired by one or more drugs.

[2] The accused has filed a Charter Application alleging that her Charter rights have been violated and that the charge against her should be stayed or in the alternative the results of the physical coordination tests performed by the peace officer and the evaluating officer and the results of the urinalysis that she provided to the police should be excluded. This matter proceeded as a blended Charter Application and trial. It was heard on the following days, namely: October 5th, November 5th, November 6th, and November 27th, 2015.

Witness Evidence

[3] The Crown called two civilian witnesses for the prosecution. One of the witnesses saw the accused drive her motor vehicle prior to it entering a ditch on a public highway as a single motor vehicle accident. The second civilian witness came upon the accused's motor vehicle almost immediately after it entered the ditch in question and made observations of the accused.

[4] Jacob Murdoch, a seventeen year old, testified that he was driving to school on April 22nd, 2015 in the area just outside of the Town of Renfrew. He observed a motor vehicle driving in a residential area on Gerald Street. This motor vehicle then turned right on Cottieville Road and went into the ditch on the right hand side of Cottieville Road at the intersection with Highway 60. As it turned out, the motor vehicle was driven by the accused. Mr. Murdoch testified that there were a number of incidences where he felt that the accused was driving badly. They include the following:

1. She was driving faster than the speed limit;
2. She was hugging the curve more than expected;
3. She went through the stop sign at the corner of Gerald Road and Cottieville Road;
4. She did not signal when it came to the intersection and did not slow down;
5. She swerved on the road;
6. She swerved to avoid striking a log in a lumber yard near the road;

[5] Mr. Murdoch testified that he did lose sight of the vehicle as it went around a curve just before the intersection of Cottieville Road and Highway 60. The accused was driving her two children in the motor vehicle. She had her son and daughter with her. Mr. Murdoch noted that the accused fell while trying to get out of her vehicle several times. It is to be noted that there were photographic exhibits showing that the motor vehicle was on a significant angle in the ditch. Mr. Murdoch noted that the accused could not speak very well and she was not standing straight. Her pants were falling down. Mr. Murdoch telephoned the police as he was concerned with the children.

[6] Scott Kelly testified that he was on his way to work in Renfrew that morning and as he approached the intersection of Cottieville Road and Highway 60, he saw a motor vehicle in the ditch. He pulled over to provide assistance. His observations of the accused outside the motor vehicle were consistent with the same evidence as Mr. Murdoch. Mr. Kelly testified that he arrived on the scene approximately 15 minutes to 20 minutes before 8:00 a.m. on April 22nd, 2015. He as well as Mr. Murdoch testified that they did not smell any odour of alcohol coming from the accused. They felt that she was impaired in the sense that she was just not normal.

[7] Mr. Kelly testified that he could tell from the scene that the accused's motor vehicle hit some sod going into the ditch which caused some damage to the bumper and then travelled 15 to 20 metres into the ditch. He testified that when he arrived at the scene, the accused motor's vehicle was steaming from what he presumed was water in the ditch splashed on the engine. He confirmed it was his opinion that the motor vehicle hit the ditch with some decent force. He noted that the occupants of the motor vehicle could not get out of the passenger's side of the vehicle because that side of the vehicle was blocked by the ditch.

Police Investigation

[8] Constable Calvin Burgins testified that he was a constable with the Ontario Provincial Police and the investigating officer in this matter. He confirmed that he received a dispatch at approximately 7:46 a.m. to attend at the scene in question with respect to a possible impaired driver. He arrived at the scene at 7:51 a.m. and observed a vehicle in the ditch as well as the accused, her two children as well as the two civilian witnesses referred to above. Constable Burgins spoke to the two witnesses, Mr. Murdoch and Mr. Kelly. He also spoke with the accused. He testified that he spoke to the accused, firstly, outside the vehicle and observed that she could not stand straight. The accused had problems keeping her balance and there was quite a bit of staggering. Her speech was very slurred and her words were elongated. Her motor skills were very delayed and her pupils were quite dilated. He testified that he was thinking that she was impaired by alcohol but he did not notice the odour of alcohol coming from the accused and her eyes were not glassy or red. He then immediately thought that there was impairment by some sort of drug.

[9] Constable Burgins testified that he arrested the accused at 8:22 a.m. for driving a motor vehicle while impaired by a drug or drugs. He stated that he formed his grounds for the arrest by speaking to the civilian witnesses as they gave him a description of the driving offence. He confirmed that that information coupled with their description of the physical state and appearance of the accused and her impairment was evidence for the arrest. He also stated that he observed her physical state and appearance. He ruled out a charge of impairment by alcohol because he did not detect any evidence of alcohol impairment.

[10] Constable Burgins testified that when he questioned the accused, she stated to him that it was a freak accident that she ended up in the ditch and she did not have any explanation. She stated that she did not have any injuries and that she had not consumed any alcohol on the date of the accident. She stated that she did not have any medical issues and that she was not on any medication.

Timeline of Events

[11] With respect to the timing of this investigation, Constable Burgins confirmed that he arrived on the scene at 7:51 a.m. He observed the accused for approximately 31 minutes and arrested her at 8:22 a.m. He read Ms. Cartier the caution at 8:25 a.m. He made a demand to her at 8:27 a.m. that she submit to an evaluation conducted by an Evaluating Officer to determine whether her ability to operate a motor vehicle was impaired by a drug or a combination of a drug and alcohol and that she accompany Constable Burgins now for this purpose. Constable Burgins left the scene at 8:36 a.m. with the accused. He arrived at the detachment at 8:40 a.m. with the accused and conducted a search of her at 8:43 a.m. The accused was placed in the cells at 8:45 a.m. Constable Burgins telephoned duty counsel at 8:48 a.m. and duty counsel called back at 9:00 a.m. The accused spoke with duty counsel at 9:06 a.m. until 9:15 a.m. when she was placed back in the cells. At 9:18 a.m. Constable Lisa Nicholas read a demand to the accused that the accused submit to a standard field sobriety test in accordance to section 254(2)(a). The accused performed the standard field sobriety test with Constable Nicholas between 9:18 a.m. and 9:27 a.m. when she was placed back in her cell. Constable Nicholas awakened the accused who was in a deep sleep in her jail cell at 10:26 a.m. Sergeant Rozich of the Ontario Provincial Police conducted a Drug Recognition Evaluation of the accused between 10:26 a.m. and 11:35 a.m. Constable Burgins released the accused at 12:06 p.m. that day.

[12] Constable Burgins testified that he was not qualified as a Standard Field Sobriety Test Officer or an Evaluating Officer under the Criminal Code. He further testified that he was not sure if Constable Lisa Nicholas was at the scene of the accident before Constable Burgins arrested the accused but Constable Burgins knew that Constable Nicholas was there after the arrest. He further testified that he first became aware that Constable Nicholas was qualified to conduct a Standardized Field Sobriety Test on April 22nd, 2015.

[13] Constable Burgins testified that he did not pay much attention to the accused's motor vehicle and he could not recall whether the air bags in that vehicle had been deployed or not. Constable Burgins testified that he knew that the vehicle was towed from the scene. He testified that he did not observe any damage to the motor vehicle even though other witnesses had testified that there had been damage occasioned to the accused's motor vehicle. Constable Burgins testified that this was the first occasion in which he had laid a charge under s. 253(1)(a) whereby the allegation was impairment by a drug or drugs.

[14] Constable Burgins testified that he acknowledged that the accused could have hit her head on the steering wheel as a result of the impact into the ditch. He also confirmed that he did not smell any marijuana on the accused and he did not see any drug paraphernalia in the accused's motor vehicle.

Constable Lisa Nicholas

[15] Constable Lisa Nicholas testified that she arrived at the scene of the motor vehicle accident at 8:11 a.m. She confirmed that she was qualified to conduct a Standardized Field Sobriety Test in accordance with the regulations to the Criminal Code and that she obtained her qualifications in February of 2014. She testified that at 8:47 a.m. she was asked to conduct a Standardized Field Sobriety Test on the accused. She noted that her authority to make this demand came from the Criminal Code. Constable Nicholas testified that she made a demand of the accused at 9:18 a.m. to perform forthwith physical coordination tests pursuant to s. 254(2)(a) of the Criminal Code. Constable Nicholas testified that she did this at the request of a senior officer in order to gather more evidence and to obtain a base point on the test for the Evaluating Officer. Constable Nicholas confirmed that this was the first time that she had conducted a Standardized Field Sobriety Test on an individual under arrest.

Sergeant John Rozich

[16] Sergeant John Rozich testified that he was a qualified Evaluating Officer under the Criminal Code. He confirmed that he requested the Standardized Field Sobriety Test to be performed because he believed that one had not been done on the accused individual. Sergeant Rozich further testified that he was not aware that the accused had been arrested when Sergeant Rozich requested that this test be performed. Sergeant Rozich testified that he wanted as much as evidence as possible to be obtained from the accused as this would provide Sergeant Rozich with more grounds.

[17] Sergeant Rozich testified that he did not have any medical training. He confirmed that there were medical reasons why individuals could not successfully complete the evaluation referred to in s. 254(3.1) specifically, he testified that if an officer suspected a concussion then they would stop the test referred to in s. 254(3.1). Sergeant Rozich confirmed that a head injury could result in an individual having poor coordination. Sergeant Rozich recognized that a person who has suffered a concussion may not know that they have suffered a concussion.

[18] Sergeant Rozich testified that he did not discuss the details of the motor vehicle accident with the accused. He confirmed that Constable Burgins had advised him that there had been damage to the motor vehicle but there was no indication as to the extent of the damage in question.

[19] Sergeant Rozich testified that there is only one qualified Evaluating Officer in Renfrew County, namely, Constable Trevor McGinnis. He further confirmed that there is a qualified Evaluating Officer in Bancroft, Carleton Place, Perth, and he works in Ottawa.

Issues

i. Should the charge be stayed pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms;

ii. Should the results of the physical coordination tests performed by Constable Nicholas and Sergeant Rozich as well as the results of the urinalysis that the accused provided to the police be excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms.

[20] Counsel for Ms. Cartier has argued that the police infringed a number of Ms. Cartier's rights including rights guaranteed pursuant to s. 8 and 9 of the Charter. These infringements of Ms. Cartier's rights are alleged as follows:

i. Constable Burgins did not have both objective and subjective reasonable and probable grounds to arrest the accused and to make the demand pursuant to s. 254(3.1) of the Criminal Code for the accused to submit to an evaluation conducted by an Evaluating Officer, in violation of s. 8 of the Charter;

ii. Constable Nicholas did not have authority under the Criminal Code to make the demand that she did pursuant to s. 254(2)(a) of the Criminal Code by virtue of the fact that when Constable Nicholas made the demand, the accused was already under arrest by Constable Burgins. In addition, counsel argues that the demand under s. 254(2)(a) of the Criminal Code of Canada is to be made forthwith and the physical coordination tests under that section are also to be performed forthwith. In the case before the court it is alleged that neither the demand was made forthwith nor the tests were made forthwith.

Analysis

Reasonable and Probable Grounds for Arrest

[21] In the case of R. v. Jamieson, 2015 ONSC 4291, Mr. Justice DiTomaso, discussed the law concerning the issue of reasonable and probable grounds to arrest an individual. In that case he set out the law as follows referring to various cases:

"[67] In R. v. Storrey, [1990] 1 S.C.R. 241, the Supreme Court of Canada stated the test for reasonable and probable grounds for arrest:

In summary then the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

[68] In R. v. Brown, 2012 ONCA 225, [2012] O.J. No. 1569 the Ontario Court of Appeal at para. 14 held that there must be something in the conduct observed by the officer, placed in the context of the rest of the circumstances, that lend some objective justification or verification to the officer's belief. Both s. 495 of the Criminal Code and, more importantly, s. 9 of the Charter demand that the belief be "reasonable", meaning that a reasonable person standing in the shoes of the police officer be able to see the grounds for the arrest. The court went on to state:

Without the objective component, the scope of the police power to arrest would be defined entirely by the police officer's perception of the relevant circumstances. The individual's constitutional right to be left alone by the state cannot depend exclusively on the officer's subjective perception of events regardless of how accurate that perception might be. The issue is not the correctness of the officer's belief but the need to impose discernable objectively measureable limits on police powers.

[69] In R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34 at para. 20, the Supreme Court of Canada held:

While an officer's "hunch" is a valuable investigative tool – indeed, here proved highly accurate – it is no substitute for proper Charter standards when interfering with a suspect's liberty.

[70] In R. v. Loewen, the Supreme Court of Canada considered the lawfulness of the arrest under s. 495(1)(a) of the Criminal Code at para. 3:

If the arrest was unlawful, the detention of Mr. Loewen violates s. 9 of the Charter. In that case, the search cannot have been incidental to arrest, and hence would violate s. 8 of the Charter. The first question is therefore whether the arrest was unlawful."

[22] In accordance with the reasoning in these cases, a consideration of s. 9 of the Charter is the starting point and the first question whether the arrest was lawful or not.

[23] Section 9 of the Charter provides, "Everyone has the right not to be arbitrarily detained or imprisoned."

[24] I find that Constable Burgins did not have reasonable and probable grounds to believe that the accused's ability to drive a motor vehicle was impaired by drugs before he arrested the accused on the date in question.

[25] I have no doubt that Constable Burgins subjectively believed that he had reasonable and probable grounds to arrest the accused as he did but I find that the objective component of that test has not been met. Constable Burgins confirmed that he formed his grounds for arrest based on the following factors:

(i) The evidence of Jacob Murdock as to the pre-accident driving of the accused;

(ii) The evidence of both Jacob Murdock and Scott Kelly as to the physical condition of the accused after the motor vehicle accident in question;

(iii) Constable Burgins' own observations of the accused of the approximately half-hour prior to arresting her;

(iv) By Constable Burgins' elimination of the accused's impairment to drive a motor vehicle by alcohol since there was no evidence of the smell of alcohol on the accused or her breath;

(v) The fact that the accused responded to Constable Burgins that she had not been injured in the motor vehicle, thereby ruling out in his mind any injury.

[26] I find that a reasonable person placed in the position of Constable Burgins would not have been able to conclude objectively that there were reasonable and probable grounds for the arrest. I find that while Constable Burgins did conduct an analysis of his grounds before he arrested the accused, he was still acting effectively on a hunch. I agree that while an officer's hunch is a valuable investigative tool and may prove highly accurate, it is no substitute for a proper Charter standard when interfering with a suspect's liberty. In the case at hand, Constable Burgins was aware that the accused was involved in a single motor vehicle accident. Constable Burgins did not check to see the extent of the damage to the motor vehicle. He was unaware as to whether or not the air bags were deployed in the accused's motor vehicle. Although Constable Burgins did inquire of the accused as to whether she was injured and she responded that she was not, Constable Burgins should have been aware that people do suffer head injuries and they are not aware as to the extent of those injuries. A head injury may have accounted for the physical symptoms observed by the accused after the motor vehicle accident. In addition, it would appear as though Constable Burgins did not investigate the issue as to whether the accused was suffering from fatigue. The evidence before the court is that the accused was in a jail cell between 9:27 a.m. and 10:26 a.m. when she was in a deep sleep. It is apparent from Constable Nicholas' testimony that she had great difficulty in awakening the accused at 10:26 a.m. I am mindful that Constable Burgins testified that there was no evidence of drug consumption that he could observe. He could not smell marijuana on the accused and there was no drug paraphernalia in the accused's motor vehicle. I find that he simply jumped to the conclusion that the accused must be impaired by drug since he could not ascertain any other reason for her physical condition.

[27] I am mindful that Constable Nicholas was qualified to conduct the Standardized Field Sobriety Test on the date in question. She arrived on the scene at 8:11 a.m. This was eleven minutes before Constable Burgins arrested the accused. When Constable Burgins was in doubt as to the reason for the accused's physical condition, he should have requested that Constable Nicholas make a demand of the accused under s. 254(2)(a) of the Criminal Code forthwith and conduct that examination forthwith. Had Constable Burgins done this, in a timely fashion, then he would have had the necessary grounds to arrest the accused if she had failed those tests. I find that it is significant that Constable Burgins did not know whether or not Constable Nicholas was on the scene before he arrested the accused. It is also significant that he did not know until that day that Constable Burgins was qualified to conduct the test under s. 254(2)(a).

Authority to Demand Standardized Field Sobriety Test

[28] The second issue relates to whether or not Constable Nicholas had the authority to make a demand under s. 254(2)(a) of the Criminal Code of Canada at 9:18 a.m. on the date in question. I find that she did not.

[29] Section 254(2)(a) of the Criminal Code reads as follows:

"(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose;"

[30] Constable Nicholas arrived on the scene at 8:11 a.m. The Ontario Court of Appeal in the case of R. v. Pierman, [1994] O.J. No. 1824 has held that under s. 254(2)(b) of the Criminal Code not only must the Approved Screening Device test be administered forthwith as set out in the Criminal Code but it is also implicit that the demand itself must be made "forthwith" or "immediately" once the officer forms the ground to make a demand. While this case specifically deals with s. 254(2)(b) of the Criminal Code, I find that by analogy it is also applicable to s. 254(2)(a) of the Criminal Code. In consultation with Constable Burgins, Constable Nicholas could have concluded before 8:22 a.m. when the accused was arrested, that Constable Nicholas and Constable Burgins had a reasonable suspicion that the accused had a drug in her body and that she had operated a motor vehicle within the preceding three hours. Had this analysis taken place, then Constable Nicholas could have made a proper demand under s. 254(2)(a) of the Criminal Code of Canada and required that the accused perform forthwith the necessary physical coordination tests known as the Standardized Field Sobriety Test.

[31] In contrast to this, Constable Burgins arrested the accused at 8:22 a.m. in circumstances where I have found that he did not have reasonable and probable grounds to arrest the accused. Constable Nicholas received orders from Sergeant Rozich at 8:47 a.m. to conduct a Standardized Field Sobriety Test on the accused after she had been arrested. It is clear from the testimony of both Constable Nicholas and Sergeant Rozich that the purpose of conducting this test is that they simply wanted to obtain as much evidence as possible in the case and to provide Sergeant Rozich with more grounds. They also wanted to obtain a base point on the test of the accused for Sergeant Rozich. The Criminal Code in s. 254(2)(a) of the Criminal Code makes it clear that the demand under that section to perform the Standardized Field Sobriety Test is for the purposes, "to determine whether a demand may be made under subsection 3 or 3.1". In the case at bar, Constable Burgins had already made a demand under s. 254(3.1). I find that the demand by Constable Nicholas at 9:18 a.m. of the accused that she perform forthwith the physical coordination test set out in the Standardized Field Sobriety Test was unlawful and a breach of her s. 8 rights.

Charter Violations

[32] In conclusion, I find that the accused's s. 8 and s. 9 Charter Rights have been violated.

Application of R. v. Grant Framework

[33] In view of the fact that I find that the accused's s. 8 and 9 Charter rights have been breached, I must now consider s. 24(2) of the Charter to determine whether or not there should be any exclusion of the improperly obtained evidence given the guidelines set out in the case of R. v. Grant, 2009 SCC 32, 2 S.C.R. 353. The Supreme Court of Canada in that case set out three types of inquiries which guide the determination of whether evidence obtained as a result of a violation of the Charter rights of an individual ought to be admitted as evidence or alternatively excluded. They are as follows:

1. I must consider the seriousness of the Charter infringing state-conduct. The admission of evidence improperly obtained may send a message that the justice system condones police misconduct.

2. I must consider the impact of the breach on the Charter protected interest of the accused. The admission of improperly obtained evidence may send the message that individual rights count for very little.

3. I must consider the society's interest in the adjudication of the case on its merits. My role is to balance the assessments under each of these lines of inquiry to determine, whether, considering all of the circumstances, admission of the evidence would bring the administration of justice into disrepute.

Seriousness of Charter Infringing Conduct

[34] I find that Constable Burgins' actions in arresting the accused under s. 253(1)(a) when he did not have the necessary reasonable and probable grounds to arrest the accused is a serious breach. Constable Burgins could have consulted with Constable Nicholas since she was qualified to conduct the physical coordination test described as the Standardized Field Sobriety Test. Had he done so, then the proper demand could have been made under s. 254(2)(a) of the Criminal Code of Canada and the results of that test could possibly provide Constable Burgins with his reasonable and probable grounds to arrest the accused. I find as well that it is significant that Constable Burgins was not aware that Constable Nicholas was qualified to perform the test under s. 254(2)(a) of the Criminal Code until the date of this incident. In addition, he was unaware as to whether Constable Nicholas had arrived before he arrested the accused or after.

[35] I further find that Constable Nicholas' demand of the accused pursuant to s. 254(2)(a) of the Criminal Code to perform physical coordination tests referred to as the Standardized Field Sobriety Test after the accused had been arrested and the demand of her was made under s. 254(3.1) is also a serious breach.

[36] I agree with the many appellate decisions that state that when police officers arrest individuals when they do not have reasonable and probable grounds that it is a serious breach. In those circumstances the scope of the police power to arrest becomes entirely defined by the police officers' perception of the relevant circumstances. The Charter does put measurable limits on police powers. If officers are entitled to arrest individuals without reasonable and probable grounds then it has serious consequences for our society. Similarly, if police officers are permitted to require individuals to perform various inculpatory tests such as physical coordination tests when there is not lawful authority, then this also has serious consequences for our society. These factors favour exclusion of the evidence in question.

Impact on Charter Protected Interests

[37] With respect to the impact of the breaches on the Charter protected interests of the accused, I find that the accused has a right against impermissible detention and arrest as well as a right against self-incrimination. I find that a result of the Charter violations, the accused was detained, arrested and held in custody from 8:22 a.m. until 12:06 p.m. when she was released. She was required to submit to two different forms of physical coordination tests and she was held in a jail cell in the police detachment. She was also required to provide a urine sample. I find that there was a significant and serious impact on her Charter protected interests. I find that these factors favour exclusion of the evidence in question.

Society's Interest in Adjudication on Merits

[38] With respect to the society's interest in the adjudication of the case on its merits, I acknowledge that the Crown's case will be significantly and negatively impacted by the exclusion of the results of the two physical coordination tests performed on the accused as well as the urinalysis results. I further accept that generally, the admission of these tests results serve the truth seeking function of the trial process. When I balance the assessments under each of the lines of inquiries set out in R. v. Grant case, supra, I find that the admission of the results of the physical coordination tests performed by Constable Nicholas and Sergeant Rozich as well as the results of the urinalysis that the accused provided to the police would bring the administration of justice into disrepute.

Conclusion

[39] As a result, I am excluding the results of the physical coordination tests performed by Constable Nicholas and Sergeant Rozich as well as the results of the urinalysis that the accused provided to the police pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms.

The Honourable Mr. Justice G. Radley-Walters