Ontario Court of Justice

Date: September 4, 2020

Court File No.: 19-5535

Between:

Her Majesty the Queen

— AND —

Shayla Morris-Rainford

Before: Justice P.T. O'Marra

Heard on: July 28 and 29, 2020

Reasons for Judgment released on: September 4, 2020

Counsel

Reza Raeesi — counsel for the Crown

Harpreet Saini — counsel for the defendant Shayla Morris-Rainford

P.T. O'Marra, J.:

Overview

[1] The applicant, Shayla Morris-Rainford, is charged that on March 28th, 2019, within two hours after ceasing to operate a conveyance, her blood alcohol concentration exceeded 80 mg of alcohol in 100 ml of blood, contrary to section 320.14(1)(b) of the Criminal Code of Canada (the Code).

[2] At approximately 10:32 am, Cst. Sean Davis-Miller was conducting sobriety checks in the vicinity of the LCBO store located at 100 Clementine Drive, Brampton. He was a member of the Impaired Driving Enforcement Unit. He had positioned his unmarked cruiser in the parking lot to observe people entering and leaving the LCBO. At 11:30 am, the officer observed the applicant arrive in her 2017 Hyundai Tucson with another black female passenger. The applicant parked her car and entered the LCBO. The officer noted that the applicant's car's passenger side wheels were a few inches over the parking spot line. At 11:33 am after the applicant returned from the LCBO, the officer pulled his car behind her car. Before the applicant re-entered her car, the officer asked her if she had anything to drink today. The applicant denied that she consumed alcohol that morning. He asked her if she had consumed any alcohol the prior evening. The applicant admitted that she had drank one beer. The officer raised his concern about her parking. At this point, the officer detected the faint smell of alcohol. Cst. Davis-Miller read the Alcohol Screening Demand (or alternatively the Mandatory Screening Demand (MAS)) to the applicant. After five (5) attempts to provide a suitable sample of her breath, the applicant failed the test. During her unsuccessful attempts and afterwards, the applicant was belligerent and uncooperative with the officer. She cried and ranted about the officer, who is black, being racist and that he and other police officers target black people. At 11:48 am, the applicant was arrested for "impaired" but was later charged with "excess BAC". She was provided her rights to counsel, cautions and given a formal breath demand. She was transported to 22 Division. Once at 22 Division, the applicant's Intoxilyzer test results belied readings of 216 and 202 mg of alcohol in 100 ml of blood, respectively.

[3] The applicant applied to have her breath samples and test results excluded under section 24(2) of the Charter. The Application proceeded as a blended voir dire. The Crown called the arresting officer Cst. Davis-Miller. The applicant did not testify.

[4] The applicant argued that based on the totality of Constable Davis-Miller's observations, he did not have reasonable grounds to suspect that the applicant had alcohol in her body and to make a mandatory alcohol screening demand. Furthermore, the constable failed to meet the immediacy requirement under section 320.27 of the Code, therefore breaching the applicant's rights under sections 8 and 10(b). Constable Davis-Miller arbitrarily detained and unlawfully arrested the applicant for the offence of impaired operation of a conveyance, thereby breaching the applicant's section 8 and 9 Charter rights. As well, upon detaining the applicant, and after she failed the MAS, the constable failed to immediately inform the applicant both the purpose of the detention, the reasons for her arrest and her right to counsel, contrary to sections 10(a) and 10(b) of the Charter. Finally, the applicant argues that she was racially profiled and that her race played a role in the officer's investigation and sobriety check, contrary to section 9 of the Charter.

[5] The applicant argues that the cumulative effect of the Charter breaches and their impact are serious enough that to warrant exclusion.

[6] The Crown responded that constable Davis-Miller did have the right to investigate the applicant. The constable's action of blocking the applicant's car and approaching the applicant to investigate her sobriety was lawful under his authority at common law and/or by statute connected to a highway safety purpose. The applicant was not under arrest and therefore there was no requirement to immediately advise the applicant of her section 10(b) Charter rights. The constable had the requisite reasonable grounds to suspect that the applicant had alcohol in her body within the proceeding three hours and to make the MAS demand. Furthermore, there was no delay in administering the MAS test and therefore the Crown submitted that the test was conducted in compliance with the new legislation. Finally, the crown argued that there is no evidence that the applicant's race played any role in Constable Davis-Miller's investigation on a conscious or sub conscious level.

[7] Alternatively, the Crown suggested that if there was a breach found based on racial profiling, the evidence must be excluded. However, if the court concluded that there was no breach based on racial profiling, but other breaches were established those breaches were minor and had no significant impact on the applicant's Charter-protected interests. The constable was well intended and acted in good faith. The case should be judged on its merits.

Facts

[8] The facts of this case are not really disputed. Since 2015, Cst. Davis-Miller has been a member of the Peel Regional Police Service. On March 28, 2019, he was involved in a specialized unit that targeted impaired drivers and was conducting sobriety checks in the parking lot of the LCBO located at 100 Clementine Drive, Brampton. In the past, he had arrested several individuals in this parking lot for impaired driving. On this occasion, Cst. Davis-Miller positioned his unmarked cruiser in the parking lot to make observations.

[9] At 11:30 am, the applicant drove into the parking lot with a black female passenger and parked in front of the LCBO store. The applicant was observed by Cst. Davis-Miller to have parked her car over the parking line spot by a few inches. He observed the applicant enter the store and exit a short time later. Cst. Davis-Miller agreed that the applicant did not have any physical difficulties exiting the car nor walking in or out of the store. The constable agreed that the applicant did not show any of the traditional signs of impairment at this point in time. Beyond the positioning of the applicant's car, the constable did not observe anything unusual regarding the applicant's operation of her car.

[10] It was unclear from the evidence what in fact the applicant purchased from the LCBO, however, the constable testified that the applicant placed something inside her trunk. He agreed that he did not observe the applicant struggle or have difficulty placing the item inside.

[11] At 11:31 am, the constable decided to conduct a sobriety check of the applicant. He positioned his unmarked cruiser directly behind the applicant's car and blocked her in. The constable approached the applicant while she was outside of her car on the driver side close to the trunk and identified himself as a police officer with the impaired driving enforcement unit and was conducting sobriety checks of drivers. The applicant's car engine was running. He asked if she had anything to drink that morning. The applicant responded "no". The Constable asked her if she had consumed alcohol the prior evening. The applicant answered, "one beer". Cst. Davis-Miller raised his concern about her imperfect parking. While he spoke with the applicant, the constable testified that he detected a "faint smell of alcohol".

[12] At 11:33 am, the constable read the screening demand to the applicant. He produced the ASD from his cruiser and explained to the applicant how to provide a sample of her breath.

[13] On the applicant's first and second attempts, the applicant provided insufficient samples as her "cheeks were inflated, but there was no actual air going through the instrument".

[14] After her third failed attempt, the applicant began to cry and ranted about "black cops". According to Cst. Davis Miller, the applicant stated that she "barely parked over the line" and "that she's being harassed…black cops got something better else to do". She claimed that black people are targeted by black cops and that she felt being a single mother she was being targeted. According to Cst. Davis-Miller, he assured her that she was subject of a sobriety check and that he had detected the odour of alcohol.

[15] Her fourth attempt was unsuccessful as she began to only blow lightly and then stopped. At 11:41 am on her fifth attempt, the applicant registered a "fail" and she was placed under arrest. Cst. Davis-Miller testified that after the applicant failed the ASD that he formed a belief that "she had alcohol in her body and that she was impaired".

[16] At 11:48 am, Cst. Davis-Miller commenced reading the rights to counsel, primary and secondary cautions and the breath demand to the applicant. This process was completed at 12:07 pm.

[17] At 12:09 pm, they cleared the scene and arrived at 22 Division at 12:20 pm.

[18] Any delays in carrying out his duties, according to Cst. Davis-Miller were due to the applicant's belligerence, failure to follow his direction, his attempts to calm her down, gathering her cellphone, wallet and purse and the passenger being difficult.

[19] After arriving at 22 Division, Cst. Davis-Miller contacted counsel of choice on behalf of the applicant. The applicant consulted with her counsel of choice.

[20] The applicant was brought before a black officer, Cst. Bowes and a qualified breath technician. After Cst. Davis-Miller provided his reasons/grounds for the arrest to Cst. Bowes, he made a formal breath demand for a sample of her breath. Cst. Davis-Miller testified that from his perspective, the applicant was compliant and much more at ease in the presence of Cst. Bowes.

[21] At 1:19 pm, the first breath test provided a reading of 213 mg of alcohol in 100 ml of blood. The second breath test yielded a reading of 202 mg of alcohol in 100 ml of blood. After the second test the applicant was returned to Cst. Miller-Davis at 1:45 pm. The applicant was released from police custody at 3:05 pm.

[22] In cross-examination, Cst. Davis-Miller testified that when he observed the applicant operating her car, there was nothing remarkable about her manner of driving, save and except for her parking. There was nothing unsafe about her method of parking, meaning that it did not pose a risk to anyone. He also did not observe any of the traditional signs of impairment with the applicant's motor functions or eye hand coordination. For example, she did not stagger or sway while she walked to the LCBO and back to her car. Her speech was not slurred. Her eyes were not blood shot and red. Basically, he conceded that he did not observe any of those signs of impairment. Cst. Davis-Miller conceded that he was not close enough to smell any alcohol on "her person". However, he did smell the odour of alcohol in the "open air".

[23] In cross-examination, when he was pressed by counsel that the way the applicant parked her car was not really an indicia of impairment, Cst. Davis-Miller disagreed and stated the following:

Because if you're in control of a vehicle and you can't park it in between two bright yellow-coloured lanes, then I would have concerns about your ability to control the vehicle. So that's why I went to speak with her.

[24] Cst. Davis-Miller asserted that he is always concerned about a driver parking awkwardly in a LCBO parking lot as it is often the case in his experience that driver's attend the LCBO while under the influence of alcohol and buy more alcohol.

[25] He also agreed in cross-examination that when he blocked in the applicant's car he could be embarking upon a criminal investigation. He agreed with counsel's suggestion that at this point in time, that the applicant was detained and was not given the rights to counsel, notwithstanding she was no longer driving the car and did not have the car keys in her possession.

[26] Finally, Cst. Davis-Miller was questioned regarding his need to find out the identity of the black female passenger after the applicant was arrested. He testified that he felt he needed to ask her name as it was necessary to tow the applicant's car and that he may have to call her a cab. According to the officer, he perceived the passenger as uncooperative and resistant to his direction.

[27] In cross-examination, Cst. Davis-Miller testified that the applicant's race did not factor or play any part, directly or indirectly, in the applicant's investigation and arrest. He conceded that the arrest attracted a number of people that began to watch. He was mindful of the fact that she accused him of targeting her because she was black and that he pointed out incredulously that he was black as well. He found her allegation at the time "ludicrous". When he was challenged about this in cross-examination, he stated the following:

…forgive me if I go off on a tangent, but my mother's black, my father's black. I, you know, I was raised by a single mother. I understand that, you know, so I can understand why she was upset and belligerent, but that's not — that's not why I stopped her, and maybe that's why I was visibly offended at your question, and I can see maybe I'm going to reach here, but when you say that from your — your viewpoint that the driving, the reason why I stopped her, in your reason, your opinion, so minuscule, that — and the only reason why I stopped her because she's a person of colour, and I just want to say that's not true, you know. It was because of the parking. I'm in the Impaired Driving Enforcement Unit, I'm there to do sobriety checks, I'm looking for any signs that would be concerning. We talked about tolerance and potential signs of impairment which different people may exhibit, and that's why I spoke to her, you know, so — I could see — I understand why you asked that question, sir, but that's why to me I had to say, like, I am a black male because it — it's not — it doesn't make sense for me, it doesn't compute, if that makes sense.

[28] As well, Cst. Davis-Miller denied that even "part of the reason" to approach, detain, investigate and arrest was her colour. Again, he forcefully testified to the following:

No, sir. I'll disagree and, you know, when you refer to the detainment, I didn't, like I just walked up to her to ask if she was okay, like the driving, right, so it's not like I held her there for 20 minutes and I parked behind her car, you know, if I had, you know, if this is like opposite day, but if I walked up to her, she was like, no, I had nothing to drink, I'm perfectly fine, and I didn't detect any odour of alcohol, I would been like, sorry, ma'am, I'm from the Impaired Driving Unit, sorry to bother you, have a nice day, and then it would have been — it's very brief, but when I walked up to her, and like in terms of the parking, that's why I spoke to her, and then the odour of the alcohol. And then, I believed, I had reasonable suspicion that she had alcohol in her system and then that's how, kind of, the events transpired.

[29] In cross-examination, Cst. Davis-Miller stated that he was uncertain about whether other black officers are at times prejudicial against black people but conceded that it was possible. In his defence, he testified that he did not have enough police experience to say that it did not occur in policing.

Issues

1. Did Cst. Davis-Miller use racial profiling as a basis to detain and investigate the applicant?

[30] I take judicial notice that racial stereotypes and racial bias exist in Canadian society.

[31] Justice Barnes in R. v. Odle, para. 53, stated the following regarding the jurisprudence:

It is acknowledged in Canadian jurisprudence that anti-Black bias is entrenched in some individuals, societies and institutions. Such attitudes manifest as either overt or subconscious racism, or both. Contemporary understandings of racism recognize that an approach that limits the effects of racial stereotypes to one minority to the exclusion of others is out of touch with the attributes and effects of racial discrimination: R. v. Koh, at para. 30; R. v. Johnson, 2020 ONSC 3673, at para. 8. This does not detract from the reality that other non-Caucasian Canadians have been impacted by different historical and generational systems of discrimination. Thus, blind analogies are not particularly helpful: R. v. Kandhai, 2020 ONSC 3580, at para. 41.

[32] An expression of systemic racism is racial profiling in law enforcement. The acknowledgement of racial profiling in law enforcement has been expressly recognized in Canadian Courts. The analytical framework was set out and adopted by the higher courts to assists judges in assessing whether there is any merit to any allegation of police racial profiling in a case. See: R. v. Brown, R. v. Le, 2019 SCC 34 and R. v. Dudhi, 2019 ONCA 665.

[33] The Supreme Court in the Le decision stated that racial profiling has two components: (1) an attitudinal component; and (2) a causation component. In the Dudhi decision Justice Paciocco writing for the panel described the two components as follows at para. 66:

In sum, there are two components to racial profiling. The first is the attitudinal component, which is the acceptance by a person in authority that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous. The second is the causation component, which requires that this race-based thinking consciously or unconsciously motivate or influence, to any degree, decisions by persons in authority in suspect selection or subject treatment.

[34] In order to succeed in an application alleging a section 9 breach on the basis of racial profiling, it is no longer the standard that the applicant must show that it was more probable than not that there was no articulable cause for the stop, based specifically on the person's colour. (See: Dudhi, para. 58) But racial profiling occurs where race or racial stereotypes are used to any degree in suspect selection or subject treatment. (See: Dudhi, para. 59)

Analysis

[35] In this application, it is important to note that this case involves an allegation of a black police officer racially profiling a black female driver. This unusual dynamic does not change or alter the analytical framework that I must employ. As the Crown concedes, and this court acknowledges, that a person of colour cannot display prejudice based on race.

[36] I find in this case that Cst. Davis-Miller did not stop and investigate the applicant outside of her car because of her race. It neither played a direct or indirect role in her detention. There were other discernible factors that formulated his reason to approach the applicant in order to conduct the sobriety check.

[37] Examining facts of this case, the officer tasked with conducting sobriety checks that day was situated in an LCBO parking lot. He found the applicant's parking concerning and worth investigating. She had recently driven her car and was returning to her car to presumably drive away. There was the admission of the consumption of alcohol the night before and the odor of alcohol in the vicinity as he spoke with the applicant without anyone else around. This was a routine investigation that started out as a sobriety check, an ASD fail and an arrest. I am satisfied that race was not a factor in the applicant coming to Cst. Davis-Miller's attention.

[38] I found Cst. Davis-Miller's denials impactful and sincere. I recognize and acknowledge that racial profiling is hard to prove. As Justice Doherty recognized in Peart v. Peel Regional Police Services Board, at para 95:

Racial profiling can seldom be proved by direct evidence. Rather, it must be inferred from the circumstances surrounding the police action that is said to be the product of racial profiling.

[39] However, in my view there was no abuse of authority in this investigation. Cst. Davis-Miller considered the suggestion that he racial profiled the applicant as "ludicrous". I accept the officer's explanation for using this term as perhaps he has been shielded from exposure to overt acts of police racism and individuals expressing racist views in his presence as a black officer. It is interesting to note that when the applicant accused Cst. Davis-Miller of targeting her since she was black, he took the high road by telling her that he was black too. He used his words and actions to calm her down.

[40] Finally, counsel suggested that Cst. Davis-Miller's repeated requests to the black female passenger to identify herself was further evidence of him using race to abuse his authority. I disagree. In my experience, I have heard all too often that police believe that they can ask any passenger for identification. In my view, this is simply more of a profound misunderstanding of police authority rather than motivation to ask for a passenger's name due to their skin colour as was in this case.

[41] Applying the Dudhi test, I conclude that there is no evidentiary basis to support the claim of racial profiling in this case.

2. Did Cst. Davis-Miller breach the applicant's rights under section 8 and 9 of the Charter?

The Applicable Law in Roadside Investigations

[42] Sections 8 and 9 of the Charter states the following:

Everyone has the right to be secure against unreasonable search or seizure.

Everyone has the right not to be arbitrarily detained or imprisoned.

[43] Both the common law and provincial highway legislation empower the police to investigate drivers for impaired driving. See: R. v. Orbanski; R. v. Elias, 2005 SCC 37, at para. 41. In Ontario, section 48 of the Highway Traffic Act (HTA) confers on police officers the power to perform sobriety checks on drivers at the road side. Section 48 provides:

A police officer, readily identifiable as, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand section 254 of the Criminal Code of Canada.

[44] Section 254 has been replaced by section 320.27 of the Code.

[45] Prior to the enactment of the Mandatory Alcohol Screening provision in section 320.27 of the Code, the standard for a police officer to make an ASD demand was "reasonable suspicion" that a driver had alcohol in their body.

[46] The actions of the police in stopping a vehicle under their authority at common law or by statute only constitutes an unconstitutional stop if the reason for the stop is unconnected to a highway safety purpose.

Analysis

[47] Counsel argues that Cst. Davis-Miller conducted a "street check" and therefore failed to have reasonable grounds or an articulable cause to detain the applicant. See: R. v. Mann, 2004 SCC 52, at para. 33. I agree that if Cst. Davis-Miller's actions were unconnected to a roadway safety purpose and he was investigating a criminal offence which he could not provide his articulable cause, he would have breached the applicant's Charter protections against arbitrary detention and unreasonable seizure.

[48] In my view, a member of the Impaired Driving Enforcement Unit, Cst. Davis-Miller's task was to investigate impaired driving in the community and conduct sobriety checks.

[49] The issue is whether the breath demand made of the applicant was a lawful demand under section 320.27(1)(b). I note that Cst. Davis-Miller had in his possession an approved screening device, and therefore could have relied upon section 320.27(2). I will comment further about counsel's argument that the Crown must pick one subsection over another to establish that the roadside demand was lawful. In other word, the Crown cannot ride two horses.

[50] In cases involving alcohol, to prove the existence of a lawful demand under section 320.27(1)(b), the Crown must prove beyond a reasonable doubt that:

1. the person making the demand was a peace officer;
2. the peace officer who made the demand had reasonable grounds to suspect that the person of whom the demand was made:
   • (a) had operated a conveyance within the preceding three hours, and
   • (b) had, at the time of the demand, alcohol in his or her body.

[51] The term "peace officer" is defined in section 2. The terms "conveyance" and "operate" are defined in section 320.11.

[52] The concept of "reasonable grounds to suspect" is discussed in cases such as R. v. Kang-Brown, 2008 SCC 18 at paragraphs 75-79, and R. v. Haydl, 2003 CarswellOnt 4633 (Ont. C.J.) at paragraphs 12-14 and 17-19. I set out my understanding of the concept in R. v. Martinovic, 2012 ABPC 306, and rely upon it for this analysis. In short, and to paraphrase from R. v. Martinovic, supra:

1. The word "suspect" means "believe tentatively without clear ground" and "be inclined to think": The Canadian Oxford Dictionary, edited by Katherine Barber (Don Mills, Ontario: Oxford University Press; 2001) at p. 1461.

2. When one is considering what was in a peace officer's mind in relation to a particular accused person, a mere suspicion is "an expectation that the targeted individual is possibly engaged in some criminal activity". For example, in the case at bar, a mere suspicion would be "an expectation that the applicant possibly had alcohol in her body". The "expectation" referred to is a tentative belief without clear ground for that expectation. Section 320.27(1) requires more than a mere suspicion; it requires that the peace officer have "reasonable grounds to suspect" (i.e., a reasonable suspicion).

3. Reasonable suspicion is "something more than a mere suspicion and something less than a belief based on reasonable and probable grounds." The modifier "reasonable" means that the suspicion must be "in accordance with reason; not absurd": The Canadian Oxford Dictionary, edited by Katherine Barber, supra, at p. 1202. As Justice Binnie said in Kang-Brown, supra, "[r]easonable suspicion must be supported by factual elements which can be adduced into evidence and which permit an independent judicial assessment".

4. The difference between a mere suspicion and a reasonable suspicion is not a difference in the level or the degree of the peace officer's expectation which is the same in both cases. Rather, the difference is that a mere suspicion is an expectation unsupported by facts, while a reasonable suspicion is an expectation which is logically supported by facts. In each case, the "facts" are the facts as they are perceived at the time by the holder of the suspicion.

[53] Having set out what is required by section 320.27(1)(b), I will now apply those requirements to the case at bar.

[54] There is no doubt that Cst. Davis-Miller is a police officer.

[55] Further there is no doubt that the car that she drove into the parking lot that morning is a conveyance.

[56] Did Cst. Davis-Miller have reasonable grounds to suspect that the applicant had alcohol in her body?

[57] Cst. Davis-Miller formed a reasonable suspicion (which now reads 'reasonable grounds to suspect') the applicant had alcohol in her body based on the following observations:

• (i) The constable observed the applicant drive her car into a parking space.
• (ii) The applicant parked her car incorrectly at or near the LCBO at 11:30 am.
• (iii) The applicant entered the LCBO and returned to her car while the engine was running.
• (iv) The applicant admitted that she drank a beer the night before.
• (v) The constable detected the odour of alcohol in the vicinity of the applicant.

[58] The officer did not articulate that the odour of alcohol came from her breath however, I am prepared to make a reasonable inference that the odour came from the applicant since she was the only person standing outside of her car when he made his observation. Reasonable grounds to suspect is based on reasonable possibility, not probability – R. v. Chehil, 2013 SCC 49, at para 27. A suspicion need not be the only inference that could be drawn to be reasonable, and the officer is certainly not required to imagine other possible explanations and negate every possibility. The law is quite clear that the odour of alcohol on a driver's breath, alone, can give rise to a reasonable suspicion that a driver has alcohol in his body. The concern of the officer at this point is not whether the driver was impaired, or over 80, it is simply whether he had alcohol in his body and had been operating the motor vehicle in the preceding 3 hours. See: R. v. Lindsay; R. v. Gilroy, 1987 ABCA 185, leave refused [1988] SCCA No 12 and R. v. MacPherson.

[59] According to his evidence found at page 16 of the transcript, the officer testified that he "formed the belief that she was-she had alcohol in her body…". Having accepted that Cst. Davis-Miller had a reasonable suspicion that the applicant had alcohol in her body (that is the subjective part of the test), the question becomes: Were there reasonable grounds for that suspicion? (that is the objective part of the test)

[60] As I have already indicated the location of the car, the manner of parking, the admission of the consumption of alcohol the prior evening and the odor of alcohol, in my view those perceived facts made the officer's suspicion that there was alcohol in the applicant's body a reasonable suspicion.

[61] Did Cst. Davis-Miller have a reasonable suspicion that the applicant had operated a conveyance (the motor vehicle) within the preceding three hours? He witnessed the applicant drive her car into the parking lot and park her car at or in front of the LCBO at 11:31 am. The demand was made within two minutes.

[62] I am satisfied that the demand made under section 320.27(2) was a reasonable demand.

[63] Now, I turn to the issue of immediacy.

The Immediacy Requirement

[64] Counsel argued that the officer failed to comply with the immediacy requirement in section 320.27(2) which read as follows:

320.27(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer's opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

[65] Counsel argued that this section 320.27(2) could not be relied upon by the officer as both the stop and the demand were unlawful. The officer was not in execution of his duty and the demand was not made immediately.

[66] Based on my previous findings, there is no merit to this argument. The officer was in execution of duty and exercising his authority and therefore the demand was lawful. But setting this aside for a moment, section 320.27(2) obviates the need for expressing any articulable cause. The demand in this section is a search of the accused's body without any explanation needed. The section requires that police cannot detain an individual without having the ASD readily available. The only immediacy requirement is for the subject to provide the sample immediately, not that the demand be made immediately. Regardless, if I am wrong in my interpretation, the applicant was approached and stopped at 11:31 am and the demand was made at 11:33 am.

[67] I find that Cst. Davis-Miller did not breach the applicant's rights under sections 8 and 9 of the Charter.

3. Was the applicant's section 10(a) Charter right breached?

[68] Sections 10(a) and 10(b) of the Charter states the following:

Everyone has the right to on arrest or detention

(a) To be informed promptly of the reasons therefor;

(b) To retain and instruct counsel without delay and to be informed of that right;

[69] Counsel abandoned the argument that the applicant's right to 'counsel of choice' was violated. However, he argues that the words expressed to the applicant upon her arrest did not fulfill the basic requirements pursuant to section 10(a).

[70] Based on my previous findings, the applicant's rights to counsel were suspended at the roadside during the screening process in the parking lot by operation of the fact that Cst. Davis-Miller was engaged in a purpose that was related to his powers under the HTA and the common law. The applicant was not entitled to be informed of the right to counsel and to exercise that during roadside technique. (See: R. v. Thomsen, [1988] S.C.R. 640 and Elias and Orbanski)

[71] In terms of section 10(a), the purpose to advising the accused of the charges and reasons for detention is to afford the accused the opportunity to receive advice regarding the kind of jeopardy the accused is facing.

[72] From the applicant's reaction and her responses to the right to counsel, I am more than satisfied the applicant was aware that she is facing a drinking and drive offence and was fully cognizant of her jeopardy. She may have been left with the impression that she was charged with impaired operation, however, as the evidence disclosed, she was informed by Cst. Davis-Miller that during the primary caution that she was being "charged" with the offence of excess blood alcohol concentration at 12:07 pm.

[73] In my view, Cst. Davis-Miller may have expressly advised the applicant that she was arrested for impaired driving. In my view, this was an oversight that did not prejudice the applicant in anyway. As she stated to the officer during the right to counsel "I have been through this before". In my view, the applicant's right under section 10(a) was not breached.

4. Did Constable Davis-Miller have reasonable grounds to arrest and make a demand for impaired driving?

[74] After the applicant failed the ASD, Cst. Davis-Miller stated to the applicant at 11:41 am that she was under arrest for "impaired". He testified that he believed that she had "alcohol in her body". He testified that he explained the caution at 12:07 am while still at the scene. However, he further advised the applicant that she was charged with the offence of "Excess BAC".

[75] It is clear from Cst. Davis-Miller's testimony that after the applicant failed the ASD test that he had reasonable grounds to believe that the applicant committed the offence of impaired operation or operating while over 80. The grounds for arrest must be subjectively held but objectively reasonable. I have no difficulty finding that this was the case. The officer had the right to make the demand, and the failed result on the ASD led to her arrest.

[76] I agree with a number of authorities that have held that where the court is satisfied the officer took steps to use the device for which it was intended, conducted the test properly, and interpreted the fail result to indicate that an offence had been committed under Section 253 (now section 320.14), then both the subjective and objective components of the reasonable grounds needed to make the breath demand have been made out. See: R. v. Toledo, [1999] O.J. No. 903 (O.C.J.) at para. 10; R. v. Johnson, 1999 BCCA 622; R. v. MacDonnell, [2004] O.J. No. 927 (S.C.J.), at paras. 25 and 26 and R. v. Kumar, [2011] O.J. No. 4324.

Conclusion

[77] In conclusion, I find that there were no breaches of the applicant's rights under sections 8, 9, 10(a) or 10(b) of the Charter. The application is dismissed. There will be a conviction registered for the offence of operate a motor vehicle with excess BAC.

Released: September 4, 2020

Justice P.T. O'Marra