Court File and Parties

Date: September 26, 2022 Ontario Court of Justice

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

NEVILLE BRISSON

Before: Justice T. Lipson

Reasons for Judgment released on September 26, 2022

Counsel: Mr. C. Lem .................................................................... counsel for the Crown Mr. D. Anber .................................. counsel for the accused Neville Brisson

Reasons for Judgment

[1] Neville Brisson entered a plea of not guilty to charge that he “on or about the 30th day of May, in the year 2020, at the City of Ottawa in the East Region did, knowing that a demand had been made, fail or refuse to comply with a demand by a peace officer under section 320.28 of the Criminal Code of Canada, contrary to section 320.15, subsection 1 of the Criminal Code”.

Overview of the Evidence and Issues

[2] I begin with an overview of the evidence and the issues in this case. In so doing, I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the prosecution.

[3] On May 20, 2020, at 5:40 pm, Mr. Brisson was involved in single motor vehicle collision. He was driving northeast on Merivale Road in Ottawa. It was raining. A witness, Amanda Stephenson, saw the defendant’s vehicle swerve from the right-hand lane through the left-hand lane and then into oncoming traffic. The vehicle swerved back to the right, hit the curb and drove up over the sidewalk onto the lawn of a Shopper’s Drug Mart, hitting a store billboard.

[4] Ms. Stephenson told the court that Mr. Brisson tried to back his car up for about thirty seconds. She saw his hand emerge from the passenger side window and throw out the liquid contents of a bottle. She called 911. Emergency Services attended and police and paramedics arrived shortly afterwards.

[5] Cst. McDade, one of the officers, began an investigation of the accident. She observed that the defendant’s car was damaged. The car’s fabric roof was ripped. The rear fender was unclipped on the passenger side and dented on the driver’s side. The driver’s side airbags had deployed.

[6] Based on her observations, including what she thought was a mild odour of alcohol on the driver’s breath, Cst. McDade issued an Approved Screening Device (ASD) demand. Mr. Brisson complied with the demand. The ASD result was “0”.

[7] Given the result, Cst. McDade ruled out alcohol as source of impairment but considered the possibility that a drug was in the defendant’s blood system. She read Mr. Brisson the Standard Field Sobriety Test (SFST) demand. However, she felt that the immediate area around the accident scene was not a suitable location for a SFST.

[8] In light of that concern, the officer drove Mr. Brisson to a covered gas bar approximately 500 metres away from the scene. She happened to be an instructor in Standard Field Sobriety Testing, as well as a trained “evaluating officer” (DRE) and qualified breath technician.

[9] Cst. McDade administered the SFST, comprised of a battery of three tests. Based on the results of the testing and her other observations of her detainee, the officer formed the opinion that Mr. Brisson’s ability to drive was impaired by a drug. She arrested him for impaired operation and issued a DRE demand pursuant to s. 320.28(2)(a).

[10] Mr. Brisson testified that, to the contrary, he followed the officer’s instructions regarding the SFST process and did not engage in the mistakes she claimed he made.

[11] Defence counsel submits that the ASD demand was unlawful because the officer lacked the requisite grounds to make the demand. He says the roadside breath seizure violated Mr. Brisson’s section 8 Charter protection against unreasonable search and seizure. He says the results of the roadside test should be excluded both under s. 24 of the Charter “and for the role it played in the officer ‘ruling out’ alcohol and proceeding to the SFST testing . (Issue #1).

[12] Counsel also submits that the SSFT testing was unlawful in that it did not meet the “immediacy requirement”, fundamental to rights to counsel. He says the Crown did not establish that there was no opportunity for Mr. Brisson to contact counsel, a breach of Mr. Brisson’s s.10(b) rights. His position can be summarized as follows: The decision to move Mr. Brisson from the roadside where he could have performed the SFSTs and to transport him 500 metres in the back of a police car without informing him of his right to counsel, violated ss. 9 and 10(b) of the Charter (Issue #2).

[13] While the arrest occurred at 6:24 p.m., Mr. McDade was not informed of his rights to counsel until 6:29 pm. Between the time of the arrest and the provision of his s. 10(b) rights, Cst. McDade had handcuffed Mr. Brisson and had enlisted Cst. Baker, a male officer, to conduct a search incident to arrest. As well, Cst. McDade made a call to secure the services of another DRE. She also called officers at the accident site to tow the defendant’s vehicle. It was only once Mr. Brisson was searched and lodged in her police cruiser, that she read him his rights to counsel. She also read him the caution at 6:29 pm. and then the DRE demand at 6:31pm. She left the scene with her detainee at 6:35 pm, arriving at the police division at 6:49 pm.

[14] The defence submits that the jurisprudence, commencing with R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, makes clear that the informational component of s. 10(b) was due Mr. Brisson immediately upon arrest, the only exception being for reasons of officer safety. It goes on to argue that there were no actual safety concerns present, so that a breach of s. 10(b) occurred. It submits that in the result, the defendant’s subsequent refusal to comply with the DRE demand at the police station should be excluded under s. 24(2). (Issues #3 and #4)

[15] Once at the police station, Mr. Brisson was permitted to exercise his right to counsel. He chose to speak with present counsel, Mr. Anber. Cst. McDade reached Mr. Anber by telephone, explained the nature of the call and transferred him to Mr. Brisson. Cst. McDade advised Mr. Anber that his client had “failed” the SFST and was at cellblock for a DRE. Mr. Brisson then spoke to Mr. Anber in private, starting at 7:19 p.m.

[16] At 7:44 pm, Cst. McDade learned that Mr. Anber wanted to speak to her again. She said that it was contrary to her normal practice but agreed to allow it. Mr. Anber confirmed with the officer that she had smelled alcohol on Mr. Brisson’s breath, but that his client had blown “0” on the ASD. Mr. Anber then asked to speak with Mr. Brisson again and was permitted to do so. At 7:59 pm, Cst. McDade learned that Mr. Anber wanted to speak with her again. She declined and Mr. Brisson then ended his call with Mr. Anber shortly afterwards.

[17] Mr. Brisson was then presented to the DRE, Cst. Leger, and stated, “My lawyer advised me to refuse any urine or tests”. Mr. Brisson also said, “This is my verbal refusal. Just give me the court date.” Cst. Leger warned him of the consequences of refusing. Mr. Brisson said he understood. He was accordingly charged under s. 320.15(1) of the Criminal Code.

[18] Defence counsel submits that the Crown has not proven a valid demand to the requisite standard and that the court should accept Mr. Brisson’s evidence regarding his testing or, at least, be left in reasonable doubt by it. Counsel says that even without the court engaging in a W.D. analysis, the evidence of Cst. McDade does not establish that she did in fact have reasonable grounds to believe an offence had been committed. He submits that the testimony of the officer and the testing she conducted are unreliable and provides an insufficient basis to conclude the Crown’s case is proven beyond a reasonable doubt (Issue #5).

Issue #1: Was the ASD Demand Lawful?

Summary of the Evidence

[19] Cst. McDade was dispatched at approximately 5:49 pm. The weather was rainy, and the outside temperature was about 14 degrees Celsius. On her way to the scene, she received an update that firefighters, already there, believed that the driver involved in the collision was impaired. On her arrival, she observed damage to the billboard and to the defendant’s vehicle. The driver’s side airbags had been deployed. Firefighters pointed out Mr. Brisson who at the time was looking for something in the passenger area of his vehicle.

[20] Cst McDade observed Mr. Brisson to be unsteady on his feet as he stood up. The officer did not make note of this contemporaneously in her duty book but did so in her Investigative Action report. She later testified to having an independent recollection of the defendant’s unsteadiness.

[21] Cst. McDade noted a strong odour of cologne on the defendant. The officer testified that she learned in her training and field experience that cologne is sometimes used as a masking agent to cover up a different odour. She also observed that Mr. Brisson’s pupils were constricted, which she said was indicative of drug or alcohol use. Mr. Brisson denied having any medical conditions.

[22] Cst. McDade asked Mr. Brisson for his driver’s licence. Instead, he produced his ownership and permit. The defendant told her that his licence was in his brief case in the possession of a tow truck driver at the scene who happened to be his stepson. The officer perceived that Mr. Brisson seemed anxious for the conversation to end and avoided eye contact with her.

[23] Cst. McDade said she smelled a “faint” or “mild” odour of an alcoholic beverage on Mr. Brisson’s breath but that he denied any alcohol consumption in the preceding 12 hours. He also denied using any non-prescribed drugs or medication. The officer testified that “at that point” she had formed a suspicion that Mr. Brisson had alcohol in his body.

[24] Cst. McDade gave evidence that several factors contributed to her suspicion, including the following: the single vehicle collision; the report that the firefighters believed the driver was impaired; the defendant’s unsteadiness on his feet; the strong smell of cologne; his avoidance of eye contact; the mild odour of alcohol; the defendant seeming to want the interaction with the officer to be over; his constricted pupils; the fact that he did not retrieve his driver’s licence when asked and his denial of any medical condition that might account for the officer’s observations. Cst. McDade testified that her suspicion crystalized when she smelled the odour of alcohol.

[25] In cross-examination, Cst. McDade said she noted the odour of alcohol in her duty book, where she wrote, “smelt odour alcoholic bev. emanating from breath”. In her Investigative Action Report, she later wrote, “mild odour”. In examination in chief, she testified that it was a “very faint odour”. When pressed whether she had no doubt in her mind that what she was smelling the odour of an alcoholic beverage, Cst. McDade responded, “at that point, that- that’s what I believed, that’s what it smelled like”.

[26] Cst. McDade made the approved screening demand at 6:04 pm. Mr. Brisson indicated he understood. The officer had an ASD (Draeger Alcotest 6810) in the trunk of her cruiser. On the 10-20 metres walk to the cruiser, Mr. Brisson was again unsteady on his feet. He was unable to walk a straight line and unsteady from foot to foot. At 6:05 pm, Mr. Brisson provided a sample of his breath into the device. It registered a “0”. About that, the officer testified, “so at that point, I concluded that alcohol wasn’t in his system…I ruled out alcohol. It showed 0 milligrams of alcohol in 100 milliliters of blood on the ASD.”

[27] Constable McDade went on to tell the court that, “since I ruled out alcohol being an impairing element for the collision, I started to think that…there could be a drug, prescribed or non-prescribed, in his system”. Accordingly, at 6:07 p.m., Cst. McDade read the defendant the SFST demand.

[28] In his evidence, Mr. Brisson denied consuming alcohol or drugs that day. He admitted to putting on a quick spray of cologne earlier. He said his car had swerved into traffic, but he managed to pull it back the other way and hit a curb, following which his vehicle swung onto the sidewalks, causing the airbags to deploy and “saving me from going through the driver’s side window”.

[29] Mr. Brisson said his car then hydroplaned, acknowledging that his car first went into oncoming lanes. After swerving back the other way, his car’s rear passenger wheel hit a curb, crossed the sidewalk and then struck a billboard near Shopper’s Drug Mart. He then tried to reverse his car in an effort to put it on the street. He denied emptying the contents of a bottle of liquid onto the ground.

[30] Other evidence, relevant to the SFSTs, was provided by Cst. Baker who was present for much of the investigation relating to those tests. Cst. Baker searched the defendant but did not note or recall a smell of alcohol emanating from him.

Positions of the Parties

[31] Mr. Anber, for the accused, submits that Cst. McDade lacked a reasonable suspicion that Mr. Brisson had alcohol in his system and that she was “fibbing” when she said she did. Counsel says the “0” reading on the ASD objectively confirms that the officer’s claim that her suspicion crystalized when she smelled alcohol on the defendant’s breath was false. In this regard, Mr. Anber points to the officer’s varying descriptions of the odour of alcohol, highlighted in her notes by the words, “an odour”, “a mild odour” and “a very faint odour” permitting an inference, he says, of testimonial unreliability.

[32] Mr. Lem, for the prosecution, argues that the discrepancies regarding the variable descriptions of the odour of alcohol are not significant and that in her evidence the officer was consistent in conveying that the odour was mild. The Crown also submits that there are a number of plausible explanations for the “O” result, including that Cst McDade was mistaken. When it comes to reasonable suspicion and reasonable grounds, he says that in the jurisprudence police officers may be mistaken about reasonable suspicion or reasonable grounds but that this does not necessarily undermine their grounds at the time: see R. v. Caputo, 2019 ONCJ 856; R. v. Stipo, 2020 ONSC 4471 at para 48; R. v Censoni at para 35. The Crown submits that, in any event, there were grounds to demand an ASD sample under s. 320.27(1)(b) even in the absence of the smell of alcohol.

Analysis

[33] I am not left in reasonable doubt on the evidence that Cst. McDade was “fibbing” about detecting an odour of alcohol on the defendant’s breath. I agree with the Crown that any discrepancy in her description of the odour was not significant. The witness throughout conveyed that the odour was mild and that she administered the ASD to objectively confirm her suspicion. But the “0” result indicates that she was likely mistaken that the defendant had alcohol in his body.

[34] Based on her observations and information available to her at the time, Cst. McDade believed she had the requisite grounds to make the demand that included a mild odour of alcohol, but in addition, a multitude of other factors: the single vehicle collision; the report that firefighters believed the defendant was impaired; Mr. Brisson’s unsteadiness; the strong smell of cologne; his avoidance of eye contact; his pupils were constricted; and that he did not retrieve his driver’s licence when asked to do so. In addition, the officer noted that the defendant seemed to want the interaction to be over and refused medical attention that might reveal indicia of impairment.

[35] Given those factors, in particular, her belief about the odour of alcohol, Cst. McDade testified that, “I had suspicion that he had a substance in his body. At that point, I believed it to be the possibility of an alcoholic beverage”. It is clear she administered the test to confirm the correctness of her suspicion. When the result failed to do that, she ruled out alcohol as an impairing agent and considered the possibility that a drug other than alcohol was in the defendant’s body. It was a reasonable shift.

[36] The authorities allow that a “0” ASD result does not necessarily render the officer’s suspicion unreasonable where other evidence provides an objective basis for the suspicion: see R. v. Wang, 2010 ONCA 435; R. v. Singh at para 14. As in this case, there was other evidence upon which the officer could base her suspicion.

[37] Moreover, the reasonable suspicion threshold is low and involves possibilities, rather than probabilities. I am satisfied that on the constellation of facts known to Cst. McDade at the time she made the ASD demand, those facts permitted an inference that there was a distinct possibility of alcohol in Mr. Brisson’s body. On this evidence, I find no Charter violation and therefore no basis to exclude the result of the ASD test or the role it played in the officer “ruling out” alcohol and proceeding to the SFST testing.

Issue #2: Were the SFSTs authorized by law?

Summary of the Evidence

[38] As indicated earlier, the “0” result on the ASD test caused Cst. McDade to consider the possibility that a drug other than alcohol was in the defendant’s body. Accordingly, she read Mr. Brisson the SFST demand that he said he understood. But she felt an on-site test was unsuitable because a crowd was gathering that included her detainee’s son-in-law, a tow truck driver, in addition to the road surface not being a proper, flat, level area with a straight line on the ground. Her training indicated that the tests should be conducted on a relatively flat, dry, straight level surface. She told the court, “I felt it was best for Mr. Brisson and myself to go to a dry area to conduct an evaluation in a safer area” and later “due to the weather, I didn’t want him either him or myself to slip, because there is (sic) puddles and things on the ground.”

[39] Cst. McDade transported Mr. Brisson to a covered Mobil gas bar located in the next parking lot over, 300-500 metres away from the scene. The cement surface under the gas bar was relatively flat and dry with straight lines dividing the sheets of cement. She did a cursory search of Mr. Brisson, put him in her cruiser for the 1–2-minute drive to the gas bar. She did not handcuff him.

[40] In cross-examination, Cst. McDade testified that this was only the first or second time she had taken a detainee to a different location for SFSTs, nor had she done such testing before at a gas station. She could not recall any other off-site location she had used. She also agreed that the tests can be performed on wet pavement, although that would not be ideal. Regarding how far she might drive to find an ideal location, she said it would be “within reason” but she’s “not gonna drive two kilometres.” Counsel provided her Exhibit 8 that showed there was open space, including sidewalks and a parking lot, very near the scene of the accident.

[41] Of significance, in cross-examination, Cst. McDade was asked whether she was aware that “when you investigatively detain somebody, you normally have to read them their right to counsel?” She replied, “I guess at that moment, it wasn’t my understanding.”

[42] Mr. Brisson told the court about his state of mind at the time these events were happening, as follows: “ I just had an MVA and I was in shock and my airbags had gone off, so I was – I was kind of disillusioned; it was raining, I was soaking wet, and she threw me in the back of the cruiser and said, “we are going for a Field Sobriety Test.” And I said, “where are we going?” and she said, “don’t know. We’ll find a spot. And we ended up at the gas station.” He also testified that he was not offered a chance to speak to a lawyer and that if he had, he would have wanted to speak with a lawyer of his choice.

Positions of the Parties

[43] Mr. Anber submits that the SFST was not authorized by law. In his submissions, he focused on the timing of the administration of the SFSTs, not the timing of the demand. He submits that at the time the officer made the demand, Mr. Brisson was detained and that Cst. McDade breached her duty to provide the defendant his s. 10(b) rights. Mr. Brisson was clear in his evidence that provided the opportunity, he would have contacted counsel of choice.

[44] Mr. Anber submits that any person detained by police, including one under investigative detention, has the fundamental right to counsel without delay, as well as the right to be informed of it. Counsel contends that the immediacy requirement set out in s. 245(2) and explained in R. v. Quansah, 2012 ONCA 123, was not met in this case. That the officer preferred to administer the tests in a dry location away from other people when she could have done so on damp pavement close to the scene whether there were ample flat surfaces away from the road, is, counsel suggests, problematic for the Crown. He says it was not constitutionally permissible for Cst. McDade to have placed the defendant in a police cruiser, transport him 300-500 kilometers away and not advise him of his right to counsel. He also submits that there is a “stand-alone basis” for finding that the immediacy criterion was not met because the prosecution has not established on a balance of probabilities that there was no opportunity for Mr. Brisson to contact counsel. He submits that in the circumstances, the defendant’s ss. 9 and 10(b) Charter rights were violated.

[45] The Crown responds that the authorities contemplate a short delay in testing if it is necessary to obtain an accurate result. Further, he says, s. 320.27(1)(a) also provides that a subject may have to accompany the officer for the purpose of SFSTs. Mr. Lem submits that Mr. Brisson did not have a realistic opportunity to consult counsel in the short delay between the time of the demand and the time of testing. He suggests there was no “down time” within that span during which Mr. Brisson could have been afforded the time and privacy to place a call to counsel of choice.

Analysis

[46] Section 320.27 provides:

(1) 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 conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;

(b) 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 an approved screening device and to accompany the peace officer for that purpose;

[47] This section contemplates that the subject may have to accompany the officer for the purpose of SFST, which is what occurred in this case. I am satisfied that Cst. McDade had the authority and justification under s. 320.27 to transport the defendant to a more suitable location, a one-to-two-minute drive from the scene in order to ensure a reliable SFST screening procedure.

[48] The authorities hold that s. 10(b) rights are justifiably suspended for impaired driving screening measures, including non-standardized field sobriety tests: R. v. Orbanski; see R. v. Elias, 2005 SCC 37. In R. v. Bernshaw, [1995] 1 S.C.R. 254 at para 75, the Supreme Court held that roadside delays could be justified if necessary to ensure a reliable screening procedure:

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

[49] Further, in Quansah, at paras. 28-29, Justice LaForme said that if the circumstances dictate that a “short delay” is necessary for the investigating officer to obtain an accurate result, that officer is justified in delaying either the making of the demand or the administration of the test following the demand.

[50] In this case, Cst. McDade read the ASD demand at 6:04 pm. Mr. Brisson’s sample registered “0” at 6:05 p.m. At 6:07 p.m., she read the SFST demand to the defendant and transported him to the gas bar. At 6:15 p.m., the SFSTs commenced and were completed at 6:24 p.m., following which the defendant was arrested for Impaired Operation. The SFSTs were commenced only 15 minutes after the officer at the scene of the accident.

[51] As the Crown correctly points out, during those 15 minutes, Cst. McDade surveyed the scene, spoke to Mr. Brisson and ascertained his identity, formed the grounds for an ASD test and administered it, formed the grounds for an SFST, read the SFST demand and transported Mr. Brisson to a suitable location for the testing to occur. I am satisfied that the delay between 6:04 pm and 6:15 pm was no longer than reasonably necessary for the officer to discharge her duties and comply with s. 320.27. I agree with the Crown that during this delay, there was no realistic opportunity to consult with counsel and to do so in privacy. The fifteen-minute roadside screening procedure in this case was a reasonable limit on Mr. Brisson’s right to counsel under s. 10(b) of the Charter.

Issue #3: Was There a s. 10(b) Charter Informational Component Breach?

Summary of the Evidence

[52] As noted, the SFSTs were completed at 6:24 pm. Based on the results of the SFSTs, as well as the totality of the circumstances known to her, Cst McDade formed the opinion that Mr. Brisson’s ability to drive was impaired by a drug. She arrested him for Impaired Operation and issued a DRE demand pursuant to s. 320.28(2)(a).

[53] The arrest took place at 6:24 pm. Because she is female, Cst. McDade enlisted a male officer, Cst. Baker, to conduct the search incident to arrest. As well, she made efforts to secure the services of a DRE officer other than herself since she was the arresting officer. She explained that she was the only Ottawa Police DRE. She also relayed information to the officers at the scene of the accident concerning the towing of Mr. Brisson’s vehicle. She testified that she “would not have asked Mr. Brisson any questions while he was being searched and before reading his rights.”

[54] Cst. Baker had no specific recollection of how long it took for him to search the defendant. He said that his searches incident to arrest can take one minute, and they can also take up to five to ten minutes. Even thought he had conducted a cursory search of Mr. Brisson prior to him being taken to the gas bar, Cst. Baker said he would have conducted a thorough search incident to arrest which involves starting at the top of the body and working down. His routine includes checking each shoe of the person being searched.

[55] Cst. McDade said that it is her practice to read an arrestee his or her right to counsel after the person is arrested, searched and placed in the rear of her cruiser. She said this is for safety reasons. She told the court that she never knows how individuals are going to react upon arrest. Once the arrestee is in the rear of her vehicle, she is able to refer to her notebook for the proper wording. In cross-examination, she agreed with counsel that she was aware of a relatively recent email to officers from the “chain of command” that the right to counsel was not being read in “prompt enough fashion” to arrestees.

[56] Mr. Brisson was lodged in Cst. McDade’s cruiser. At 6:29 p.m., she read him his right to counsel, as well as the caution at 6:29 p.m. and then the DRE demand at 6:31 p.m. They left the scene at 6:35 p.m., arriving at the police station at 6:49 p.m. The lapse between arrest and the reading of right to counsel was approximately five minutes.

[57] Mr. Brisson exercised his right to counsel and chose to speak with Mr. Anber. Cst. McDade reached Mr. Anber by telephone, explained the nature of the call and transferred him to Mr. Anber. The officer told counsel that Mr. Brisson had failed the SFST and was at the cellblock for a DRE.

[58] The defendant spoke to Mr. Anber in private starting at 7:19 p.m. Mr. Anber spoke with Cst. McDade again at 7:44 p.m. The officer told counsel that she smelled alcohol on Mr. Brisson’s breath, but that he had blown a “0” on the ASD.

[59] Mr. Anber then spoke with Mr. Brisson again. At 7:59 p.m., Cst. McDade learned that Mr. Anber wanted to speak with her again. She declined. Mr. Brisson ended his call with Mr. Anber shortly afterwards.

[60] When the defendant was introduced to Cst. Leger, the DRE, he told the officer, “My lawyer advised me to refuse to give any urine or tests”. Cst. McDade asked Mr. Brisson to clarify, and he stated, “This is my verbal refusal. Just give me a court date”. Cst. Leger warned him of the consequences of refusing. It was clear to the officers that Mr. Brisson understood their warning. Mr. Brisson was then charged under s. 320.15(1).

Positions of the parties

[61] Mr. Anber submits that there was a s. 10(b) Charter breach in terms of the timing of the informational component post-arrest. He refers to R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 at paras 41-42, where the court makes clear that the informational component is due immediately, not five minutes after arrest, the only exception being for reasons of officer safety. However, he points out that Mr. Brisson was polite and cooperative at all points in time, including after he was informed that he was under arrest. Moreover, another officer was present at the time and the area was well-lit. Most importantly, the officer had previously transported Mr. Brisson, unhandcuffed, in her cruiser after he had been subject to a cursory search. Counsel submits that there were no special safety concerns in this case that justified delaying the provision of the informational component of right to counsel.

[62] Mr. Lem submits that the defendant has not met his onus of establishing a breach of his right to counsel. He says that right to counsel is to be provided immediately, not instantaneously. Here, the police did not attempt to elicit any evidence from Mr. Brisson during the period of time in question. The Crown referred to the evidence of Cst. Baker that he follows a specific and detailed routine for a search incident to arrest in order to not miss any evidence, weapons or means of escape. Cst. McDade said that she also takes care in searching persons incident to arrest. Mr. Lem referred the court to Cst. McDade’s evidence that she learned from an experience earlier in her career when she was overly trusting of an arrestee who then escaped from her custody.

Analysis

[63] The defence submits that the police breached Mr. Brisson’s 10(b) right to be informed of his right to counsel without delay. Crown submits that the delay was reasonable because of officer safety concerns.

[64] In R. v. Pillar at paras 39-41, Doody J. provides the following useful summary of the legal principles applicable to this issue:

When an individual is arrested or detained, s. 10(b) of the Charter guarantees the individual the right to retain and instruct counsel "without delay" and to be informed of that right. Subject to concerns for officer or public safety, or limitations prescribed by law and justified under s. 1 of the Charter, "without delay" means "immediately". (R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33, at para. 42; R. v. Thomson, 2020 ONCA 264 at para. 67)

In R. v. Rover, 2018 ONCA 745, Doherty J.A. wrote:

Section 10(b) obliges the police to advise a detained person of the right to speak with counsel without delay and, if the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 at paras. 38, 42; R. v. Bartle, [1994] 3 S.C.R. 173, at pp. 191-92.

The s. 10(b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety, or the preservation of evidence. For example, in R. v. Strachan, [1998] 2 S.C.R. 980, the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying access to counsel until the warrant is executed: see e.g. R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at paras. 71-75.

These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel: see e.g. R. v. Patterson, 2006 BCCA 24; 206 C.C.C. (3d) 70, at para. 41; R. v. Soto, 2010 ONSC 1734, at paras. 67-71; Learning, at para. 75; R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 1010, at para. 78.

In R. v. La, 2018 ONCA 830, Roberts J.A. wrote at paras. 38-9:

As the trial judge properly recognized, it is well-established that the police must inform a detainee of his right to retain and instruct counsel and facilitate that right immediately upon detention, subject to concerns for officer or public safety and such limitations prescribed by law and justified under s. 1 of the Charter: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 38, 42; Rover, at paras. 25-26.

Those concerns must be circumstantially concrete. General or theoretical concern for officer safety and destruction of evidence will not justify a suspension of the right to counsel: R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78; R. v. Patterson, 2006 BCCA 24, 206 C.C.C. (3d) 708, at paras. 41-42, and R. v. Proulx, 2016 ONCJ 352, at para. 47. Rather, the assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination: Wu, at para. 78.

[65] In the recent decision of R. v. Braich, 2022 ONCJ 1081 Schwarzl J. observed:

Some Ontario Provincial Court judges have held that delays of between five and seven minutes in providing rights to counsel after arrest where no conspicuous safety concerns exist can be justified where the officer first tends to investigative, rather than administrative, duties such as searching the arrestee incident to arrest, lodging the arrestee in a police car, arranging for other officers to assist, arranging a tow, or checking the arrestee's criminal history: R. v. Singh, 2017 ONCJ 3017; R. v. Foster, 2017 ONCJ 624; R. v. Rossi, 2017 ONCJ 443; R. v. Turcotte, 2017 ONCJ 5607; R. v. Selvashanmugathasan, 2019 ONCJ 261; R. v. Agnihotri, 2019 ONCJ 4133; R. v. Bhimlal, 2021 ONCJ 1759; R. v. Coates, 2021 ONCJ 2774; R. v. Brown, 2021 ONCJ 4695.

Other Ontario Provincial Court decisions have gone the other way in similar circumstances: R. v. Davis, 2018 ONCJ 1220; R. v. Ranger, 2019 ONCJ 3203; R. v. Krasausks, 2020 ONCJ 5580; R. v. Pillar, 2020 ONCJ 3791; R. v. Toth, 2021 ONCJ 2350; R. v. Davidson, 2021 ONCJ 3559

Having reviewed the authorities, I find that determining the question of whether rights were given immediately must not be based solely on time, but also an examination of all the circumstances. Context is important because immediately does not always mean instantly: R. v Fisk, 2020 ONCJ 707 at para 51; R. v. Kuznetsoff, 2021 ONCJ 124, [2021] O.J. No. 1125 (O.C.J) at para. 21.

[66] In my view, there was no pressing officer safety concern that prevented Cst. McDade from informing Mr. Brisson of his right to counsel immediately after the arrest and search. Cst. Baker was present and able to conduct a search of Mr. Brisson at the time of arrest. Also, Mr. Brisson had been polite and cooperative at all points in time, including after being informed that he was under arrest. The area was well lit. It will be recalled that Cst. McDade had previously transported Mr. Brisson unhandcuffed in her cruiser to the gas bar after he had been subject to a search. I appreciate that Cst. McDade had other duties, administrative in nature, to attend to around the time of the arrest. She had to convey information to the officers at the scene concerning the arrest of Mr. Brisson and what to do with Mr. Brisson’s vehicle. She also had to arrange for another DRE to attend the Ottawa police cellblock to conduct an evaluation of Mr. Brisson. She also wanted to secure Mr. Brisson in the back of her police cruiser. But those matters could have been attended to after Mr. Brisson was handcuffed, searched and read his right to counsel.

[67] I have concluded on this evidence that Mr. Brisson has established, on a balance of probabilities, that the informational component of his s. 10(b) right was infringed when Cst. McDade did not advise of him of his right to counsel immediately after his arrest and search incident to arrest at the gas bar. Allowing that the arrest, handcuffing and search may have taken up to a minute or two of the five-minute delay, there was no reason for the delay of a further three minutes to provide the defendant with this fundamental right.

Issue #4: Should the Evidence of Mr. Brisson’s Refusal be Excluded under s. 24(2)?

The “Fresh Start” Issue

[68] Evidence is potentially inadmissible under s. 24(2) only if it was “obtained in a manner” that infringed a right or freedom protected by the Charter. Only if this threshold is met does the court turn to consider whether the evidence should be excluded under s. 24(2).

[69] The Crown submits that if there has been a Charter violation, and that violation is remedied before the subsequent collection of evidence, the intervening Charter-compliant conduct may “sever” the nexus between the infringement and the collection of the evidence, such that it was not “obtained in a manner” that violated Charter rights. This principle, referred to as the “fresh start” doctrine, has been applied in cases such as R. v. Upston, [1988] 1SCR 1083; R. v. Simon, 2008 ONCA 578 at paras 71-74; R. v. Manchulenko, 2013 ONCA 543 at paras 13-19, 77-78, 95-98, 101; R. v. Karst at paras 19, 35.

[70] The Crown submits that Cst. McDade cured the s. 10 (b) breach when she provided Mr. Brisson with the informational component of his right to counsel in the police car some five minutes after his arrest.

[71] I respectfully disagree. The decision in R. v. Griffith, 2021 ONCA 302, [2021] O.J. No. 2514 (OCA), at para. 52, provides succinct guidance in this regard:

Courts have taken a "very broad reading" and "generous view" of the phrase "obtained in a manner" under s. 24(2), the threshold requirement of whether the admission of the evidence would bring the administration of justice into disrepute: Hobeika, at para. 77; R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 101. The jurisprudence has accepted that courts should examine the "entire 'chain of events' between the accused and the police": R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72; Pileggi, at para. 101. The connection between the breach and the discovered evidence may be "causal, temporal, or contextual, or any combination of these three connections", as long as the connection is not "too tenuous or too remote": Pino, at para. 72; Pileggi, at para. 101; see also R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; and Rover, at para. 35.

[72] I am satisfied that s. 24(2) of the Charter is engaged in this case. There is a temporal connection here because Mr. Brisson’s refusal was relatively close in time to the 10(b) breach and part of the continuum of events arising from his arrest. The connection was also contextual because the evidence of his refusal arose out of the same events flowing from Mr. Brisson’s arrest that led to the s. 10(b) breach. Neither connection was tenuous or remote.

Applicable Legal Principles to Exclude Evidence for a 10(b) Charter breach

[73] In determining whether to exclude the evidence of Mr. Brisson’s refusal, I am mindful of the important protection provided by the s. 10(b) right to counsel described in Suberu, at para 8, as follows:

A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.

[74] The test under s. 24(2) is as follows: the court must determine on a balance of probabilities if it is established that the admission of the evidence would bring the administration of justice into disrepute. The court is to consider three factors: seriousness of the Charter-infringing state conduct, impact on the Charter protected interests of the accused, and society’s interest on adjudication of the case on its merits. A court faced with a s.24(2) application for exclusion must assess and balance the effect of admitting the evidence on society’s confidence in the administration of justice having regard to these three avenues of inquiry: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353

[75] The aim of s. 24(2) is both long term and prospective. This is an objective assessment of the long-term, overall repute of the justice system. The inquiry asks "whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute": Grant, at para. 68.

[76] Damage has already been done where a breach is established. The inquiry seeks to ensure that any admissibility of the resulting evidence will not do further damage to the justice system: Grant, at para. 69. Finally, the exclusion remedy is not intended to punish the police or reward an accused but rather to protect the long-term repute of the justice system: Grant, at para. 70.

(a) Seriousness of the breach

[77] When considering the seriousness of the breach of s. 10 (b) of the Charter right by the police, the court must assess all the circumstances of the case including the following elements:

• Whether the police engaged in conduct from which the court should dissociate itself such as where the departure from expected behaviour was significant, where the police knew or should have known their conduct violated the detainee's rights, or where the police conduct was negligent: R. v. Thompson, 2020 ONCA 264, [2020] O.J. No. 1757 (C.A.) at paras. 83 and 90. It is not up to the police to decide when they will get around to providing rights to a person whom they have arrested. The failure of the police to understand this basic proposition is a serious matter and must be treated as such when it is breached: R. v. Noel, 2019 ONCA 860, [2019] O.J. No. 5612 (C.A.); R. v. Mann, 2021 ONCA 778 at para. 31.
• Whether the breach was of a merely technical nature or the result of an understandable mistake. If so, then the breach is less serious and dissociation is much less of a concern: R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34 at para. 22; R. v. Turcotte, 2017 ONCJ 5607, above, at para. 38.
• Whether there is evidence of a systemic problem of Charter-infringing conduct: Thompson, para. 85 and 92. An example of a systemic problem is the police being trained to apply a laxer standard of informing detainees of their rights to counsel: Thompson, para. 91; R. v. Sandhu, 2017 ONCJ 1714; R. v. Simpson, 2017 ONCJ 2594; R. v. Jhite, 2021 ONSC 2178; R. v. Pillar, 2020 ONCJ 3791.
• Whether aggravating features such as the following are present:
  • Whether the police exercised either bad faith, for example where the police deliberately ignored, or acted with unacceptable negligence regarding, their duties The absence of bad faith or the presence of good faith does not lessen the seriousness of a breach but simply does not aggravate it: R. v. Bailey, 2021 ONSC 7056 at para 56;
  • Whether the police attempted to elicit evidence from the person prior to giving rights to counsel: R. v. Kuznetsoff, 2021 ONCJ 124, [2021] O.J. No. 1125 (O.C.J.) at para 26 - 28, and R. v. Kassar, 2017 ONSC 6641 at paras. 117 - 120;
  • Whether the delay in providing rights to counsel was protracted or brief; or
  • Whether the police infringed additional rights of the detainee.

[78] On the evidence, I found that the roughly five-minute delay between arrest and reading the right to counsel violated Mr. Brisson’s s. 10(b) informational rights. Mr. Anber contends that this is the kind of serious breach that Ottawa police “have been routinely committing for years”. In his written materials, Mr. Anber refers to several cases decided within the last five years where judges have found an “ongoing and systemic” problem with the Ottawa Police breaching s. 10(b) in this manner.

[79] I have considered the cases submitted by counsel which, in my view, provide a sufficient basis upon which to conclude that around the time of Mr. Brisson’s investigation, a systemic problem existed with Ottawa Police officers not complying with their constitutional requirement to provide the right to counsel information immediately upon arrest. I note that there was evidence adduced during the cross-examination of Cst. McDade when she agreed with the suggestion of counsel that since the time of this investigation, the Ottawa Police “chain of command” has recognized this problem and officers have been ordered to provide the right to counsel “more promptly”. There was no evidence before the court how officers have responded to this directive in recent investigations.

[80] In determining the seriousness of the breach, I also consider the total time elapsed. Here, the actual delay following arrest, handcuffing and search was in the two-to-three-minute range which is a very short period.

[81] Instead of providing the right to counsel immediately, Cst. McDade made two brief telephone calls to other officers. One call was to the officers at the scene to arrange for the tow of the defendant’s car. The other was to arrange for another DRE officer to attend the police station. Mr. Brisson was fully advised of his right to counsel after being placed in the officer’s vehicle. The elapse of time is explained and was connected to reasonable and necessary steps in the ongoing investigation taking place. The officer erred in this case by prioritizing those calls and not giving priority to her detainee’s s. 10(b) rights.

[82] Cst. McDade’s evidence satisfies me that she was not acting deliberately to deny Mr. Brisson the requisite information. This was not a case where the officer was ignoring or sidestepping her duty to inform the defendant of his right to counsel. Nor was she unacceptably negligent. I am also satisfied that she was aware of her obligation to inform Mr. Brisson of his right to counsel after issues relating to officer safety were resolved and that she was acting in good faith. This was evidenced by her answering questions from defence counsel during Mr. Brisson’s call at the police station. This was not, in my view, a situation where the breach was caused by a “systemic” failure or lack of training. It was a short-lived error where there was no connection between the breach and the evidence sought to be excluded.

[83] Importantly, the breach was minimized because the police made no efforts to obtain evidence from Mr. Brisson during this gap and he fully exercised his right to counsel at the police station prior to refusing the s. 320.28 demand. I am also satisfied on this evidence that had Mr. Brisson received his right to counsel the instant he was arrested, there was no realistic opportunity for him to exercise that right at any time prior to his arrival at the police station.

[84] In balancing all of these circumstances, I find that the seriousness of the s. 10(b) breach in this case was of such a quality that judicial dissociation from the police conduct is unnecessary to protect the long-term repute of the judicial system. I would characterize the seriousness of the breach in this case to be at the lower end of the spectrum and that it does not favour exclusion.

(b) Impact of the breach on the Charter-protected interests of the accused

[85] The impact of a breach on an accused’s Charter-protected interests can range from fleeting and technical to profoundly intrusive. This inquiry calls for an evaluation of the extent to which the breach actually undermined the specific interests protected by the right infringed in a given case: Grant at para 76.

[86] I agree with the Crown’s submission that this is a case of a right being briefly delayed rather than denied. As indicated earlier, no evidence was elicited from or provided by Mr. Brisson during this time. I also agree that had Cst. McDade read the right to counsel a minute or two earlier, everything else would have transpired in the same way. There is no evidence that the impact of the delay was significant. Finally, the strength of the link between the breach and the evidence is a factor for consideration whether the admission of the evidence would bring the administration of justice into disrepute: see R. v. Commisso, 2020 ONSC 957 at paras 70-78. Here, as noted earlier, there is an absence of a causal relationship between the breach and the evidence obtained.

[87] The impact on the Charter-protected interests of Mr. Brisson was minimal. This factor does not support exclusion.

(c) Society’s interest and adjudication of the case on the merits

[88] The evidence sought to be excluded is Mr. Brisson’s refusal to comply with s. 320.28 demand. The danger imposed by impaired driving is high and society has a strong interest in an adjudication on the merits of drinking-drug consumption and driving cases. This is particularly so where the Crown alleges that Mr. Brisson “intentionally thwarted an impaired driving investigation by refusing to comply with a demand that is a legitimate and vital tool in the effort to detect and deter impaired driving.” Exclusion of the evidence of the refusal would be dispositive of the offence charged. This third factor weighs against that exclusion.

Balancing the factors and conclusion

[89] As indicated earlier, the focus of this inquiry must be on the long-term impact of the admission of constitutionally-tainted evidence and the repute of the justice system in the broad sense. The onus is on Mr. Brisson to demonstrate that the evidence should be excluded. In this case, I found the seriousness of the state infringing conduct at the low end. Given this and the minimal impact on the accused’s protected interests and society's interest in an adjudication on the merits, I find admission of the evidence would not bring the administration of justice into disrepute. The evidence of Mr. Brisson’s refusal is admissible.

Issue #6: Has the Crown Proven its Case Beyond a Reasonable Doubt?

[90] The Crown must prove beyond a reasonable doubt that there was a valid demand under s. 320.28(2)(a). There is no issue that Mr. Brisson provided an unequivocal refusal. I must decide whether Cst. McDade had reasonable grounds to believe that the defendant had committed the offence of Impaired Operation. In doing so, I must consider Mr. Brisson’s testimony as it relates to the issue and apply the principles in W.D. with regard to the issue of credibility as it relates to the Crown’s burden to prove its case beyond a reasonable doubt.

Summary of the evidence

[91] Cst. McDade is a trained “evaluating officer” (DRE) and qualified technician in respect of breath samples pursuant to s. 320.11 of the Criminal Code. She is also an instructor in Standard Field Sobriety Testing, as set out in the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196, s. 2. There is no dispute that she had these qualifications at the time of her investigation of Mr. Brisson.

[92] The Standard Field Sobriety Testing consists of a battery of three tests approved of by Parliament and set out in the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations: the horizontal gaze nystagmus test; the walk-and-turn test; and the one-leg stand test.

[93] In its written submissions at paras. 27-38, Crown counsel provides a useful summary of the evidence of Cst. McDade’s evidence in chief with respect to Mr. Brisson’s SFST as follows:

“The SFST commenced at 6:15pm, under the roof of the gas bar. Mr. Brisson was wearing flat black shoes. He asked Cst McDade if he could participate in the testing without his shoes, and she answered in the affirmative. The SFST training dictates that the subject can decide. Mr. Brisson decided to keep his shoes on. Mr. Brisson was asked but denied having any problems with his back, legs, ears or balance.

With the Horizontal Gaze Nystagmus (HGN) test, there are six possible clues. Four out of six clues constitute poor performance. Each of Mr. Brisson’s eyes demonstrated a lack of smooth pursuit (amounting to two clues). Otherwise, there was no nystagmus. According to Cst McDade’s training, certain drugs cause the eyes to lack smooth pursuit but otherwise show no nystagmus. Accordingly, she did not completely discount the lack of smooth pursuit.

The Walk and Turn test involves both physical and mental tasks, including the ability to follow instructions. It requires divided attention, which evokes the tasks required for driving. There are eight possible clues. Two out of eight clues constitute poor performance. Cst McDade demonstrated the test to help Mr. Brisson understand the instructions and to ensure the testing area was good.

In performing the test, Mr. Brisson showed five clues:

a. He was unable to maintain the heel-toe stance during the instruction phase;

b. He started doing the test too soon, contrary to the instruction: “Do not do anything until I tell you to”;

c. There were gaps between each of his heel-toe steps;

d. He raised his arms throughout the entire test, contrary to the instruction: “Keep your arms at your sides at all times”;

e. At the end of the first nine steps, he stopped and asked for instructions on how to turn, although Cst McDade had already explained and demonstrated it. As per her training, Cst McDade replied that he should complete the test as instructed. Mr. Brisson ended up spinning twice in a circle which was not the180-degree turn that was explained and demonstrated to him.

In retrospect, Cst McDade could have assigned an additional clue for the fact that Mr. Brisson stopped in the course of the turn.

Notably, Mr. Brisson did not step off the line, which would have been an additional clue.

Like the Walk and Turn test, the One Leg Stand involves both physical and mental tasks, including the ability to follow instructions. It requires divided attention (counting and balancing), which evokes the tasks required for driving. There are four possible clues. The presence of two out of four clues constitutes poor performance. Cst. McDade recited the instructions and demonstrated the test for Mr. Brisson.

Mr. Brisson chose to stand on his left foot. He showed all four potential clues:

a. He swayed while balancing;

b. He had to use his arms for balance, contrary to the instruction: “Keep your arms at your sides”;

c. He hopped on his foot; and

d. He put his foot down three times.”

Cst Baker was the cover officer for the purposes of the SFST to ensure Cst McDade’s safety as she concentrated on administering the test. Although he is not trained in SFST, he noticed that Cst McDade was able to demonstrate the tests without issue. In contrast, when Mr. Brisson had to do them, he was unsteady on his feet and unable to follow directions.

The SFSTs were completed at 6:24pm. Based on the results of the SFST, coupled with the totality of the circumstances known to Cst McDade, she formed the opinion that Mr. Brisson’s ability to drive was impaired by a drug and so she arrested him for Impaired Operation and issued a DRE demand pursuant to s. 320.28(2)(a).

Cst. McDade identified the following factors as informing her decision to arrest:

a. SFST is a very good indicator of whether someone’s ability to drive is impaired by drug, and Mr. Brisson performed poorly on tests. Overall, she said she could perceive his impairment throughout the testing process;

b. The single motor vehicle collision during which Mr. Brisson had driven off the road and into a sign at the side of the Shopper’s Drug Mart;

c. The information from the attending firefighters that the driver was impaired;

d. Mr. Brisson was unsteady on his feet from the outset;

e. He smelled strongly of cologne, a common masking agent;

f. His pupils were constricted;

g. He was dismissive and avoidant with the officer;

h. He was not making eye contact with her.”

[94] The defence vigorously challenged the reliability and fairness of the testing process conducted by the officer. During cross-examination, Ct. McDade conceded, albeit with some reluctance, that Mr. Brisson had to perform the tests in uncomfortable conditions because his shirt was drenched from the rain. As well, she maintained that Mr. Brisson was not only unsteady on his feet during the testing, but also throughout the night. However, video evidence (exhibits 13-18) shows the defendant displaying no unsteadiness when standing or walking about the police station later during the booking process.

[95] In cross-examination, Cst. McDade first denied there was a slope on the ground at the gas bar where Mr. Brisson performed the tests. However, she conceded there may have been a portion of that area where there was a slope. In response to questions from the court, the officer also acknowledged that her decision to arrest an individual is “all discretionary”. In this case, despite the fact that Mr. Brisson did not perform poorly on the nystagmus test, she relied on his poor performance on the other two tests to base the arrest.

[96] In his testimony, Mr. Brisson told the court that he performed well on many aspects of the testing. He said he did not lose his balance while Cst. McDade was giving him directions and that there were no gaps between any of his steps. He denied stopping halfway through the Walk and Turn and asking how to do the turn. He said he did not do the turn in a different way than demonstrated by the officer. He was unable to recall whether he ever stepped off the line during the Walk and Turn, whether he used his arms to maintain his balance or whether he kept his arms at his sides during the One Leg Stand. He did not remember whether he hopped during the One Leg Stand or whether he put his foot down three times.

Positions of the Parties

[97] The Crown submits that Cst. McDade’s grounds more than satisfied the reasonable grounds standard. He says, as well, that Mr. Brisson’s testimony that he performed well is not credible and should not leave in the court in any reasonable doubt concerning the validity of the demand.

[98] Counsel for Mr. Brisson submits that Cst. McDade’s evidence concerning her grounds was not reliable and that the court should be left in reasonable doubt on that fact in issue. Mr. Anber refers to the following evidence in support of his position:

• Cst. McDade “fibbed” when she claimed to have smelled alcohol from Mr. Brisson’s breath, despite the fact that the defendant registered a “0” on the ASD.
• The officer demonstrated a bias towards the accused when she limited the information she was prepared to provide defence counsel during the telephone calls in the cellblock.
• Cst. McDade testified that she observed unsteadiness by Mr. Brisson on two occasions but noted it only once in her duty book. As well, there is video evidence showing no unsteadiness on the part of Mr. Brisson when he was at the police station.
• She equivocated in her testimony about whether Mr. Brisson’s shirt was wet during the SFSTs.
• There is reliable evidence that there was a slope in part of the area where the SFST testing was done despite the officer’s insistence that the testing area was flat.
• Cst. McDade claimed that Mr. Brisson smelled strongly of cologne which was not only contradicted by the defendant, but no other witness testified to this fact. As well, no bottle of cologne was found in defendant’s vehicle.

Analysis

[99] A valid demand requires that the investigating officer have reasonable grounds to believe that the driver operated a conveyance while his or her ability to operate it was impaired to any degree by a drug or by a combination of alcohol and a drug.

[100] In determining whether Cst. McDade had reasonable grounds, I am guided by the decision in R. v. Bush, 2010 ONCA 554, which sets out the following applicable factors:

• Reasonable grounds can mean different things in different contexts. With arrests in the field, officers must often make these decisions “quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete”: paras 42-43
• In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threaten individual freedom: para. 46
• Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road. The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol [or a drug or a combination of alcohol and a drug]: paras 47-48
• Whether reasonable and probable grounds exist is a fact-based exercise dependent upon all the circumstances of the case. The totality of the circumstances must be considered. That an accident occurred, including the circumstances under which it occurred and the possible effects of it, must be taken into account by the officer along with the other evidence in determining whether there are reasonable and probable grounds to arrest for impaired driving. Consumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case: para. 54
• It is neither necessary nor desirable to conduct an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable. That an accident could have caused some of the indicia relied upon when they could also have been caused by the consumption of alcohol does not mean the officer has to totally eliminate those indicia from consideration: paras 55-57
• The issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so. That the belief was formed in less than one minute is not determinative. That an opinion of impairment of the ability to operate a motor vehicle can be made in under a minute is neither surprising nor unusual: para 70

[101] I agree with the Crown’s submission that Parliament has expressly determined that the battery of SFSTs set out in s. 2 of the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations are sufficiently reliable to determine whether there are grounds for a demand under s. 254(3) and an arrest. Parliament is entitled to do so, and police are entitled to rely on this testing process in forming their grounds.

[102] I am also satisfied that the SFST results, along with all of the other information available to Cst. McDade at the time of the arrest, provided her with both subjective and objective reasonable grounds to conclude that Mr. Brisson’s ability to operate his vehicle was impaired by a drug.

[103] I do not accept Mr. Brisson’s evidence that he performed well on the SFSTs, nor does his evidence leave me in any reasonable doubt in this regard. In his testimony, he conceded that following the accident he didn’t recall what he did after exiting his car because he was “kind of disoriented”. He had further difficulties when it came to remembering important details such as whether he ever stepped off the line during the Walk and Turn, whether he used his arms to maintain his balance during the One Leg Stand, whether he kept his arms at his sides during the One Leg Stand, and whether he put his foot down three times during the One Leg Stand. On the evidence, I don’t accept his testimony that he did not lose his balance while Cst. McDade was giving him directions, that he did not stop halfway through the Walk and Turn or that he did not turn in a different way than what the officer directed.

[104] I accept the evidence of Cst. McDade, who was not only qualified to administer the tests but who also, in my view, gave credible testimony on the SFST testing. Her evidence was supported by that of Cst. Baker who was in attendance during the testing. Although not trained in administering SFST, he observed that Cst. McDade was able to demonstrate the tests without issue. He told the court that when Mr. Brisson had to do them, he was unsteady on his feet and unable to follow directions. I accept Cst. Baker evidence concerning his observations of the defendant during the SFST process.

[105] I did not find Cst. McDade to be an untruthful or unreliable witness as alleged by the defence. She did not demonstrate bias or animosity toward Mr. Brisson either during the investigation or in her testimony.

[106] At the outset of her investigation, Cst. McDade mistakenly believed that Mr. Brisson had an odour of alcohol. However, it is also the case that rather than electing to arrest Mr. Brisson on the basis of the accident, the odour of alcohol and the other factors she described in her testimony, Cst. McDade chose to administer the ASD in order to objectively confirm her belief that Mr. Brisson had alcohol in his body.

[107] As well, I accept that Cst. McDade’s decision to move Mr. Brisson from the wet and unprotected accident scene to a covered dry area at a gas bar was an attempt to make the SFST procedure as fair as possible to the defendant and in line with her training and experience. Also, I note that later at the police station, Cst. McDade, unlike many officers in similar circumstances, went out of her way to be helpful to defence counsel and answer his questions for some twenty-five minutes, although she was not legally required to do so.

[108] I accept Cst. McDade’s evidence that she had the requisite grounds to arrest Mr. Brisson based on his poor performance on the SFSTs in combination with the other observations she had made. Mr. Brisson exhibited impairment during a testing process that has been approved by Parliament as being a reliable tool for the SFST assessment of impairment.

[109] While Mr. Brisson did not perform poorly on the HGN test, he did so on the Walk and Turn and One Leg Stand tests. While the evidence allows for the possibility that a portion of the concrete surface at the gas bar had a slope, this does not account for the defendant’s overall poor performance on those latter tests.

[110] I also attach significant weight to the evidence of Cst. Baker who observed that Mr. Brisson had difficulty following Cst. McDade’s instructions and was unsteady on his feet during the testing.

[111] And the following are other factors that informed the officer’s grounds for arrest. Mr. Brisson had driven off the road and into a sign on the lawn of a Shopper’s Drug Mart. Cst. McDade had information from the attending firefighters that Mr. Brisson was impaired. Her testimony that Mr. Brisson was unsteady on his feet from the outset of her observations of him, which I accept. His pupils were constricted, he was avoiding eye contact with her, and he smelled of cologne, which, in the officer’s experience and training, is a common masking agent.

[112] As the Court in Bush made clear at para. 46: “In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test. It must not be inflated to the context of testing trial evidence”, and later at para. 55, “It is neither necessary nor desirable to conduct an impaired driving trial as threshold exercise in determining whether the officer’s belief was reasonable.”

[113] In the result, I am satisfied beyond a reasonable doubt that the Crown has proven that the DRE demand made to Mr. Brisson was valid. There is no dispute that Mr. Brisson unequivocally refused it. On this evidence, I find him guilty of Fail or Refuse to Comply with a Demand by a peace officer under s.320.28, contrary to s.320.15 (1) of the Criminal Code.

Released: September 26, 2022 Justice T. Lipson