R. v. Stipo, 2020 ONSC 4471

Court File and Parties

Court File No.: CR-19-00000099-00AP Date: 2020-07-23 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Barbara Stipo

Counsel: K. Motyl, for the Crown M. Halfyard, for Ms. Stipo

Heard: 26 June 2020

Before: S.A.Q. Akhtar J.

[1] On appeal from the acquittal entered on 29 November 2019 by Justice Steven R. Clark of the Ontario Court of Justice.

Factual Background and Overview

Introduction

[2] Ms. Stipo was acquitted of the offence of driving impaired through the use of drugs contrary to s. 253(1) of the Criminal Code. At trial, Ms. Stipo brought a series of Charter challenges to the admission of evidence tendered by the Crown, all of which were dismissed by the trial judge.

[3] However, the judge excluded Ms. Stipo’s urine sample, which revealed the presence of drugs on the basis that there were insufficient grounds to make a proper demand. Absent this evidence, the judge held that the Crown could not prove its case beyond a reasonable doubt and entered a verdict of not guilty.

[4] The Crown appeals the acquittal. Ms. Stipo cross-appeals the trial judge’s ruling that the police had reasonable and probable grounds to arrest her and demand a drug evaluation.

[5] For the following reasons, the Crown’s appeal is allowed and Ms. Stipo’s cross-appeal is dismissed.

Background Facts

[6] On 25 November 2015, Ms. Stipo’s silver Porsche was seen driving erratically near Sheppard Avenue and Yonge Street. The Porsche failed to stop at two stop signs and made contact with the curb when manoeuvring the streets. A witness followed the Porsche and approached Ms. Stipo when her car came to a halt.

[7] The witness testified that Ms. Stipo seemed “out of it” and appeared to slur her speech. When Ms. Stipo drove off, the witness saw her drive on the wrong side of the road and lose control when turning the car. Concerned, the witness contacted the police.

[8] Shortly afterwards, the Porsche was seen by another witness exiting Highway 401 at the Avenue Road exit. The car travelled at a high speed before rear ending the witness’s vehicle. This witness also claimed that when he spoke to Ms. Stipo, she seemed “out of it”.

[9] Police were called. The first on scene, Police Constable Costa, suspected that Ms. Stipo was impaired. An approved screening device registered her breath sample as a “zero” reading. Based on his observations, PC Costa arrested Ms. Stipo for driving while under the influence of a drug.

[10] A drug recognition evaluation (DRE) was conducted by Police Constable Heinz who formed the opinion that Ms. Stipo was impaired in her driving ability by the presence of a central nervous system depressant in her system. He made a demand for a urine sample (“the demand”) which revealed a number of drugs in Ms. Stipo’s system.

[11] The Crown also called an expert witness who testified regarding the absorption and effects of alcohol and drugs. He confirmed the effectiveness of the DRE procedure. The expert further testified that the drugs found in Ms. Stipo were depressants which would affect co-ordination, cause drowsiness and sedation. He concluded that these drugs would impact the ability to drive a motor vehicle.

[12] At trial, Ms. Stipo brought a series of Charter applications alleging that the police had breached her section 7, 8 and 9 rights. She argued that PC Costa had no grounds to make an approved screening device demand, or arrest her for the charge of impaired driving. Finally, Ms. Stipo claimed her s. 9 rights had been violated because she had been kept in handcuffs for an unduly lengthy period of time.

[13] All of these Charter complaints were dismissed by the trial judge.

[14] However, the judge went on to consider the admissibility of the urine sample, describing it as a “non-Charter” issue. The judge found that the police lacked reasonable and probable grounds to make the demand, and excluded the results.

[15] The judge found that on the balance of the remaining evidence the Crown had not proven the case against Ms. Stipo and entered an acquittal.

Grounds of Appeal

[16] Ms. Motyl, on behalf of the Crown, advances the following grounds of appeal:

1. The trial judge erred in approaching the DRE evidence on a non-Charter basis;
2. The trial judge wrongly excluded the urine analysis as evidence at trial;
3. The trial judge denied the Crown the right to make submissions on the issue of exclusion; and
4. The trial judge improperly ignored relevant evidence in determining the issue of guilt.

[17] Mr. Halfyard, counsel for Ms. Stipo, cross-appeals on the basis that the trial judge incorrectly found that the police had reasonable and probable grounds to arrest her, thereby tainting all of the evidence subsequently obtained and rendering it inadmissible.

The Crown Appeal: Did the Police Have Reasonable and Probable Grounds to Demand a Urine Sample?

The Judge’s Reasons

[18] The judge found the demand for a urine sample to be a “non-Charter” issue, and cited four reasons for finding a lack of reasonable and probable grounds:

1. PC Heinz’s observations of indicia of impairment did not accord with PC Costa's;
2. PC Heinz did not conduct his testing in strict accordance with his training;
3. PC Heinz failed to record the entirety of the DRE testing on video; and
4. Ms. Stipo’s statement to the police was involuntary and therefore inadmissible.

[19] In my view, the Crown’s appeal turns on the judge’s ruling that the police lacked reasonable and probable grounds to make the demand for a urine sample.

[20] For the following reasons, I find that this was an error and that the results of the sample should have been admitted into evidence.

The Demand for a Urine Sample Was a Charter Issue

[21] Ms. Motyl alleges that the fundamental error committed by the trial judge in this case was to treat the exclusion of the urine sample as a “non-Charter issue”. This approach, says Ms. Motyl, led to a set of errors which resulted in the wrongful exclusion of Ms. Stipo’s urine sample, which in turn, led to her acquittal.

[22] The sections of the Criminal Code in existence at the time of the allegations have since been repealed with the installation of a new impaired driving regime. There is no dispute that the trial judge used the appropriate sections of the Code when determining this case.

[23] The provisions governing the demand at the time of Ms. Stipo’s arrest were contained in sections 254(3.1) and 254(3.4) of the Code and are reproduced as follows:

(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.

(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable,

(a) a sample of either oral fluid or urine that, in the evaluating officer’s opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body. [1]

[24] As noted, Parliament has since repealed and replaced these sections of the Criminal Code.

[25] Regulations setting out the DRE tests were brought into force in 2008. PC Heinz used a 12-step checklist encompassing the examinations set out in the Regulations as well as other factors including the results of a breath alcohol test and an interview with both the arresting officer and Ms. Stipo. It was based on this DRE that he made the demand.

[26] The judge rightly acknowledged that PC Heinz had to have reasonable and probable grounds as specified in the above section.

[27] However, an unlawful demand for a sample does not, by itself, result in the exclusion of that sample: R. v. Alex, 2017 SCC 37, at para. 11. Exclusion of the urine sample could only arise from a Charter application establishing that the police did not have reasonable and probable grounds to make the demand: R. v. Charette, 2009 ONCA 310, at paras. 48-51.

[28] Accordingly, the trial judge should have considered Ms. Stipo’s application pursuant to s. 8 of the Charter. Since this was a warrantless search, the onus was on the Crown to demonstrate that the search was reasonable. Failure to do so would result in a breach of Ms. Stipo’s rights. On the other hand, the overall burden to demonstrate exclusion under s. 24(2) remained with Ms. Stipo: R. v. Sandhu, 2011 ONCA 124, at paras. 42-47.

[29] Although both Ms. Motyl and Mr. Halfyard agree that the judge mistakenly characterised the demand as a non-Charter issue, they differ on the consequences.

[30] Ms. Motyl argues that by failing to consider the demand through a Charter lens, the trial judge used the wrong test and conflated Charter principles with those governing the issue of guilt.

[31] Mr. Halfyard, with characteristic candour, concedes many of the errors made by the trial judge including the fact that the judge erred in not treating the demand for a urine sample as a Charter issue and the intermingling of Charter and trial issues. However, he submits that when reviewed in its entirety the reasons of the trial judge are sound in finding a lack of reasonable and probable grounds to demand a urine sample.

[32] For the following reasons, I disagree.

The Intermingling of Evidentiary Issues and Standards

[33] As the evaluating officer conducting the DRE, PC Heinz provided two distinct evidentiary components at trial.

[34] The first was as an investigating officer making the demand for Ms. Stipo’s urine sample pursuant to s. 254(3.4) of the Criminal Code using the DRE evaluation: R. v. Bingley, 2017 SCC 12, at para. 9. His evidence on this aspect informed only reasonable and probable grounds to make the demand.

[35] The second was as an expert providing his opinion on whether Ms. Stipo had been driving whilst impaired by drugs. This evidence was relevant to the ultimate issue of guilt: Bingley, at paras. 20-21.

[36] The difficulty in this case was that by failing to deal with the demand through a Charter lens, the trial judge merged these two roles. In doing so, he misapplied the principles relating to the basis to make the demand.

[37] Reasonable and probable grounds have a subjective and objective component. The subjective component mandates that the officer honestly believes that a suspect has committed an offence - in this case, driving whilst impaired by drugs. That belief must be supported by objective facts: R. v. Bernshaw, [1995] 1 S.C.R. 254, at p. 285. The objective component is made out when a reasonable person would be able to conclude that there were indeed reasonable and probable grounds for the demand: R. v. Storrey, [1990] 1 S.C.R. 241, at p. 250.

[38] The reasonable and probable grounds standard in the context of a demand for samples is not an onerous one: R. v. Bush, 2010 ONCA 554, at para. 46; R. v. Wang, 2010 ONCA 435, at para. 17.

[39] In assessing reasonable and probable grounds under s. 254(3.4), in this case, the trial judge had to consider PC Heinz’s subjective belief (which he found to exist) and the objective factors known to the officer supporting that belief based on the 12-step DRE conducted by the officer.

[40] However, the judge strayed from this task. Instead, he used perceived deficiencies in the officer’s opinion, the protocol followed and the accuracy of the DRE to decide reasonable and probable grounds.

[41] In doing so, the judge failed to distinguish the requirements for a lawful demand for a urine sample from the ultimate issue of guilt. This is reflected throughout the four factors he relied upon to exclude the sample.

The Accuracy of the DRE was Irrelevant to the Demand

[42] The trial judge began his analysis of the demand by describing the DRE process in general terms.

[43] I agree with Ms. Motyl that the judge was incorrect in some of the details, for example, in his statement that only three tests contained in the 12-step DRE (the HGN (horizontal gaze nystagmus test), the walk-and-turn test; and the one-leg stand test were approved as grounds to make a demand. It appears that the judge confused the field sobriety tests with that of the more expanded DRE criteria specified in the Regulations.

[44] In fact, the Regulations specify a more expanded series of tests of which these three exams form a subset. The regime set out in the Regulations include tests of vertical nystagmus, lack of convergence, finger to nose, pulse and blood pressure examination. It is clear that the judge knew that PC Heinz had used the 12-step test contained in the DRE checklist but the judge’s reasons appear to indicate that he thought that “the cumulative results of all three [tests] conjunctively with all the other information known to the officer about the driver’s condition at the time of the test…must be considered”.

[45] However, the more serious error arose from the judge’s conclusion that “[s]trict compliance with the standardized testing, or protocol, is essential, however, to ensure the validity of the test results. Therefore, a failure to conduct the test in the prescribed manner may significantly undermine the objective reasonableness of the results”.

[46] The judge’s conclusion and subsequent approach was incorrect; in the reasonable and probable grounds context, the manner in which the DRE is carried out is irrelevant.

[47] What is important is the information known to the evaluating officer at the time of the demand. It is this information that determines reasonable and probable grounds to make the demand: R. v. Musurichan, 1990 ABCA 170, at para. 10; R. v. Khelawon, 2006 SCC 57, at para. 36.

[48] It is irrelevant that the information relied upon is later found to be inaccurate: R. v. Grotheim, 2001 SKCA 116, at para. 42; R. v. Francey, 42 M.V.R. (4th) 33 (Ont. S.C.); R. v. Black, 2011 ABCA 349, at para. 43; R. v. Churko, 2014 SKCA 41, at para. 5; R. v. Herritt, 2015 NBCA 33, at para. 21; R. v. McCullough, 2017 ONSC 1252, at para. 69.

[49] As noted, the focal point is what the officer knew and understood at the time he formed his grounds to make the demand and whether that information made his belief reasonable: R. v. Weese, 2005 ONCA 209; R. v. Reilly, 2009 ONCA 158; R. v. Loewen, 2011 SCC 21, at para. 32.

[50] The judge should have considered the results of the tests and the information obtained by PC Heinz. At that stage, the question to be asked was: did PC Heinz honestly believe that Ms. Stipo was impaired? As the judge determined that he did, the next question was whether the information known to PC Heinz at the time - irrespective of its accuracy - formed objective grounds for that belief.

[51] Instead, the judge focused on extraneous matters such as the failure to entirely record the DRE, whether “fulsome notes” were made, what protocols were followed, and disagreements with PC Heinz’s conclusions. These matters went to the weight of PC Heinz’s expert opinion on the ultimate issue of impairment: Bingley, at para. 32. They had no bearing on the question of reasonable and probable grounds.

[52] Once the judge went down this route, he departed from the above-cited principles that governed the demand.

[53] My conclusion that any deficiencies in procedure went to assessing the issue of ultimate guilt is reflected in the submissions of Ms. Stipo’s counsel at trial, who argued that the unrecorded video affected PC Heinz’s evidence to a degree “sufficient to raise a reasonable doubt”. Curiously, the judge also appeared to recognise that fact when he commented that the “court is mindful that departures from a recommended practice, such as a police manual, may, but not must, leave a reasonable doubt”.

[54] These comments illustrate further examples of the erroneous fusion of the issue of guilt and reasonable and probable grounds.

[55] Significantly, the judge accepted that any deviations in procedure did not affect PC Heinz’s ability to conduct the test. In addition, the trial judge viewed part of the DRE recording and expressed his opinion that indicia of impairment was present, which was evidence that the objective factors required to support reasonable and probable grounds existed.

The Differences Between PC Heinz and PC Costa’s Evidence Did Not Affect Reasonable and Probable Grounds

[56] The judge’s reliance on extraneous factors is further demonstrated by his use of the discrepancies between PC Heinz and PC Costa’s evidence regarding indicia of impairment at the police station.

[57] PC Heinz testified that he saw Ms. Stipo to have a “staggered sluggish walk” when she entered the interview room whereas PC Costa testified that Ms. Stipo appeared to walk normally.

[58] Again, it is difficult to understand how this discrepancy played any role in whether PC Heinz had reasonable and probable grounds to make the demand based on the DRE in this case.

[59] The discrepancy could have been used by the judge in the reasonable and probable grounds context to cast doubt on the subjective component by finding that PC Heinz lied about believing that Ms. Stipo was impaired. However, the judge explicitly found that PC Heinz had formed the requisite subjective belief.

[60] Moreover, the judge’s approach to this issue also bypassed important legal principles.

[61] First, for the purposes of reasonable and probable grounds two police officers may disagree on the same information without either being unreasonable: R. v. Einarson, at paras. 34-35. The judge appeared to take the view that simply because there was a discrepancy, one or other of the officers had to be wrong. He preferred PC Costa’s observations over that of PC Heinz.

[62] This leads to the second difficulty with the judge’s findings. In assessing PC Heinz’s evidence, the judge was obliged to take account of PC Heinz’s experience and training when assessing his evidence: R. v. MacKenzie, 2013 SCC 50, at para. 60; R. v. Wu, 2015 ONCA 667, at para. 51. PC Heinz was the expert; PC Costa was not. Although it was open to the judge to reject PC Heinz’s evidence because of PC Costa’s differing observations, he had to do so in the context of PC Heinz’s expertise. There was no reference to that expertise or any explanation as to why PC Heinz’s observations as an expert was being rejected in favour of PC Costa’s.

[63] Notwithstanding these points, I repeat my conclusion that the supposed discrepancy was immaterial on the outcome of the analysis of the demand. The same applies to the difference in testimony between PC Heinz and PC Costa in the latter’s role as note taker during the DRE process.

The Statement Should Not Have Been Excluded From the Charter Analysis

[64] Step 10 of the DRE checklist involved questioning Ms. Stipo, who told PC Heinz that, prior to driving, she used a cough syrup which she believed contained codeine to help her sleep. Ms. Stipo added that the label on the medicine displayed a warning that the user was not to drive or operate heavy machinery.

[65] At trial, counsel for Ms. Stipo sought to exclude this utterance alleging that it was involuntary and in breach of Ms. Stipo’s s. 10(b) Charter rights.

[66] The judge conducted a voir dire and found that, as the police had not properly cautioned Ms. Stipo, the statement was involuntary. He also found a breach of Ms. Stipo’s s. 10(b) rights as she had not been advised of right to counsel specifically in relation to the DRE, even though she had previously spoken to duty counsel.

[67] It is unclear from the transcripts whether Ms. Stipo was seeking to exclude the statement for use on the trial proper or for the purposes of determining reasonable and probable grounds.

[68] In any event, the judge ruled that it could not be relied upon by PC Heinz in forming reasonable and probable grounds to make a demand.

[69] This ruling was also an error.

[70] The voluntariness of Ms. Stipo’s statement was relevant only when deciding guilt. At the Charter stage, the statement was properly admissible in determining the totality of the circumstances known to the police at the time of the alleged Charter breach: R. v. Paterson, 2017 SCC 15, at paras. 18-25.

[71] As explained by Brown J., writing for the majority in Paterson, at paras. 19 and 21:

First, the appellant's submissions fail to account for the purpose of the judicial inquiry in a Charter voir dire, and its distinction from the purpose of a criminal trial. A criminal trial is concerned with determining whether the accused is guilty of an offence. In a Charter voir dire, however, the focus is not on the accused's guilt, but on whether the accused's constitutional rights were infringed. A Charter voir dire therefore involves a review of the totality of the circumstances known to, and relied upon by, the state actor at the time of the impugned action. To be clear, only the state actor's contemporary state of mind and conduct is at issue, and not the truthfulness of the statement upon which he or she relied. It is for this reason that the truthfulness of a statement has no bearing upon its admissibility; rather, the inquiry is focussed upon whether it was reasonable for him or her to rely upon the statement as forming grounds for the action under scrutiny.

In sum, admitting a statement by an accused for the purpose of assessing the constitutionality of state action, as opposed to the purpose of determining the accused's guilt, does not engage the rationale for the confessions rule. To apply the rule to evidence presented at a Charter voir dire would distort both the rule and its rationale.

[72] With respect to Ms. Stipo’s s. 10(b) rights, there is no dispute that Ms. Stipo was given her right to counsel when arrested and that she spoke to duty counsel prior to the DRE. Was a second right to counsel caution required before and in relation to the DRE? I find that the answer is: no.

[73] In R. v. Sinclair, 2010 SCC 35, the Supreme Court of Canada described three situations where a second consultation would be constitutionally mandated: (1) where, after the first conversation with counsel, the police proposed non-routine procedures not within the expectation of the consulting lawyer (2) the investigation took a more serious turn making the first conversation inadequate in the light of new jeopardy and (3) where the detainee did not understand their right to counsel or the police undermined legal advice already received.

[74] In R. v. Tahmasebi, 2020 ONCA 47, the Court found that a second right to counsel warning was not necessary in cases where an accused was arrested for impaired driving and a DRE was conducted as none of the Sinclair categories applied.

[75] As the court explained, at para. 39:

[N]either a DRE demand under what was then s. 254(3.1), nor an oral fluid or urine sample demand under what was then s. 254(3.4), is a change of circumstances from those facing a person detained on a charge of impaired driving. A person who has received legal advice (assumed to be sufficient and correct) after such a charge does not face a new or emergent situation when either demand is made. Because the demands are foreseeable and the initial advice would be expected to address them and their consequences, it would not be appropriate to create a new category of cases in which there is an entitlement to a second consultation with counsel to cover the circumstances in the case at bar.

[76] Accordingly, there was no requirement to deliver a second right to counsel caution.

[77] For these reasons, Ms. Stipo’s statement should not have been excluded from the reasonable and probable grounds analysis.

The Officer Had Reasonable and Probable Grounds to Make the Demand

[78] According to s. 254(3.4) of the Code, the demand had to be “based on the evaluation”.

[79] As described, under s. 254(3.4) of the Code, PC Heinz could only make the demand if he subjectively believed that Ms. Stipo’s ability to drive was impaired by drugs. The reasonableness of that belief is assessed from objective factors arising out of the DRE.

[80] PC Heinz testified to the 12-Step DRE. He told the court of the information received from PC Costa with respect to impairment. He explained how the DRE indicated drug presence for the HGN test, and high doses of drugs for the vertical nystagmus. The remaining tests such as the modified Romberg test indicated she was on a depressant. PC Heinz observed Ms. Stipo had difficulties in balance in both the walk-and-turn test as well as the one-legged test. She also failed the finger to nose test.

[81] Other “symptomologies” such as the pulse and blood pressure, combined with the physical tests led PC Heinz to conclude that Ms. Stipo had a CNS depressant in her system.

[82] There was no suggestion that PC Heinz had not made these observations. There was no suggestion that he had not conducted the DRE test. Indeed, as previously noted, the trial judge, when delivering his verdict on the issue of guilt, found that “[o]n all the evidence, it is certainly fair to say that the defendant’s performance on the DRE physical coordination tests otherwise was not devoid of indicia of impairment”.

[83] Finally, PC Heinz had the benefit of Ms. Stipo’s statement informing him that she had taken medication which carried with it a warning not to drive.

[84] PC Heinz’s honest belief that Ms. Stipo was impaired whilst driving was clearly reasonable in the face of these objective factors. Accordingly, he had proper grounds to make the demand.

Section 24(2) of the Charter

[85] If I am wrong in my conclusion that the demand did not violate Ms. Stipo’s Charter rights, I would still find that the results of the urine sample should have been admitted pursuant to s. 24(2) of the Charter.

[86] As the judge dealt with the demand as a non-Charter issue he did not conduct a s. 24(2) inquiry. Both Ms. Motyl and Mr. Halfyard agree that the record permits this court to do so.

[87] The decision in R. v. Grant, 2009 SCC 32 mandates a three-pronged approach in assessing whether the admission of evidence obtained in a manner that violated the Charter would bring the administration of justice into disrepute.

[88] The court must examine:

(1) The seriousness of the state’s Charter-infringing conduct (2) The impact of the breach on the Charter-protected interests of the accused (3) Society’s interest in the adjudication of the case on its merits

[89] In R. v. McGuffie, 2016 ONCA 365, at para. 63, the court found that if the first two inquiries strongly favour exclusion of the evidence, the third “will seldom, if ever, tip the balance in favour of admissibility”. On the other hand, if the first two grounds “provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence”.

Seriousness of the Charter-Infringing Conduct

[90] The police conduct in this case, on the judge’s own findings, were on the very low end of the seriousness spectrum. The judge rejected any of Ms. Stipo’s Charter breaches when arrested and found the police had been respectful in their dealings with Ms. Stipo. He also found that even though PC Heinz did not conduct the DRE test strictly in accordance with protocol, the officer did not act in a cavalier fashion. The judge also acknowledged that deviations from the DRE test were permissible.

[91] The judge also stated that the gaps in recording were not deliberate and occurred “through no intentional fault of Constable Heinz” who, as an Ontario Provincial Police officer, was not familiar with the equipment used in the Toronto detachment office.

[92] The judge added that PC Heinz was “well intended” and performed his duties “with the belief that everything was being properly recorded”. The judge also acknowledged that there was no legal obligation on the police to make a recording of the DRE process.

[93] The first prong of the Grant test therefore favours admission of the results of the urine sample.

The Impact of the Breach on the Charter-Protected Interests of Ms. Stipo

[94] The taking of a urine sample is not an invasive procedure even though it is a bodily sample. It is not obtained through the use of an invasive procedure and in many ways is analogous to a breath sample.

[95] In R. v. Monney, [1999] 1 S.C.R. 652, a suspected drug importer was arrested at Pearson International Airport and taken to a facility where he was told he would be held until he provided a urine sample showing that he had not ingested drugs. The sample obtained showed the presence of heroin. The accused confessed to having consumed 84 pellets of heroin to avoid detection and shortly afterwards began to excrete those pellets. The court found that the manner in which the incriminating evidence was a reasonable use of police powers. At para. 48, Iacobucci J. writing for a unanimous court stated:

While I conclude that the compelled production of a urine sample or a bowel movement is an embarrassing process, it does not interfere with a person's bodily integrity, either in terms of an interference with the "outward manifestation" of an individual's identity, as was the central concern in Stillman, or in relation to the intentional application of force, as was relevant in Simmons.

[96] I find that this branch of the Grant test points to admission of the evidence.

Society’s Interest in the Adjudication of the Case

[97] There is no doubt that the results of the urine sample were critical to the Crown’s case as key evidence that Ms. Stipo was impaired through drugs. The exclusion of this evidence had a material impact on the verdict. This prong obviously favours admission of the evidence.

[98] Accordingly, I conclude that even if the demand constituted a violation of Ms. Stipo’s Charter rights, the urine sample was admissible under s. 24(2) of the Charter.

The Cross-Appeal: Did the Trial Judge Err in Finding Grounds to Arrest Ms. Stipo?

[99] Ms. Stipo cross-appeals on the ground that the trial judge erred in finding that PC Costa had reasonable and probable grounds to arrest her at the roadside and demand a drug evaluation.

[100] Although I agree that the trial judge’s reasons could have been more detailed on this issue, I find no error in the judge’s conclusion that PC Costa had sufficient grounds to arrest Ms. Stipo and compel her to submit to a DRE.

[101] The record contains the following facts:

• The circumstances of the accident with a severe motor vehicle collision
• When PC Costa encountered Ms. Stipo, he smelt alcohol emanating from her body
• Ms. Stipo’s responses were slow and delayed up to 4-5 seconds on each occasion
• Ms. Stipo had difficulty producing driving documents when requested
• Ms. Stipo’s was unable to walk straight, leaning on the police car to keep her balance
• When asked about the odour of alcohol Ms. Stipo responded by saying “No, I have icy cooler - icy cold. Is that what you are smelling?” - a sentence that was uttered in a broken up fashion
• PC Costa received information that a witness had called 911 describing the driver of the Porsche as possibly impaired
• When Ms. Stipo’s was asked to provide a breath sample into an approved screening device it produced a “zero” reading

[102] The existence of reasonable and probable grounds is determined on a fact-based exercise and varies from case to case. The totality of the circumstances must be considered. Whilst each individual item of evidence might be explained by circumstances other than impaired driving, the law directs that a reviewing court must not look at each in isolation but the totality: Bush, at paras. 54-55.

[103] Even though I agree that the PC Costa may have, at times, used the word suspicion, a reading of his entire testimony demonstrates that he had formed an “opinion” or an honest belief that Ms. Stipo was driving whilst impaired by a drug. The above listed items provide an objective basis for this belief.

[104] Accordingly, Ms. Stipo’s cross-appeal is dismissed.

Conclusion

[105] For the foregoing reasons, the appeal is allowed and a new trial is ordered before a different jurist.

[106] For the sake of clarity at the new trial, I would also comment on the Crown’s submission that the judge ignored relevant evidence when determining the issue of guilt.

[107] The judge appeared to indicate that he could not use or consider evidence of police observations used to formulate reasonable and probable grounds as these were not made part of a sobriety test. The judge also indicated that he had to disregard evidence obtained prior to Ms. Stipo being advised of her right to counsel.

[108] It is unclear why the judge felt so constrained as observations that are not gathered from Ms. Stipo’s participation in compelled screening measures are admissible to prove guilt: R. v. Milne, at paras. 37-39; R. v. Orbanski; R. v. Elias, 2005 SCC 37, at para. 58; R. v. Quenneville, 2009 ONCA 325. These observations would, accordingly, be admissible at Ms. Stipo’s new trial.

[109] Ms. Stipo is ordered to appear at Courtroom 111, Old City Hall at 60 Queen Street West at 10 am on 21 August 2020. She is released on the same terms of bail that she was subject to prior to her trial.

S.A.Q. Akhtar J. Released: 23 July 2020

Footnote

[1] The current wording of s. 320.28(4) does not contain the words “based on the evaluation” but stipulates if on completion of the evaluation the officer has reasonable grounds to believe impairment by drugs, they may demand a urine sample.