Her Majesty the Queen v. Squires

[Indexed as: R. v. Squires]

59 O.R. (3d) 765

[2002] O.J. No. 2314

Docket No. C37147

Court of Appeal for Ontario

Doherty, MacPherson and Armstrong JJ.A.

June 13, 2002

Criminal law -- Drinking and driving offences -- "As soon as practicable" -- Breathalyzer demand made 59 minutes after arrest for impaired driving -- Accused found near overturned car following single-vehicle accident -- Accused smelled of alcohol and having facial injuries -- Accused talking gibberish -- Police officer arresting accused for impaired driving at scene but not making breathalyzer demand immediately due to concerns for accused's health -- Police officer making breath demand 59 minutes later after doctor giving officer permission to speak to accused -- Trial judge erring in holding that demand not made "as soon as practicable" -- Police officer properly first concerned with accused's health -- Appropriate to ensure that accused able to understand breathalyzer demand and respond in meaningful way -- Demand made as soon as practicable -- Criminal Code, R.S.C. 1985, c. C-46, s. 254(3).

A civilian told police that a car had overturned on a quiet rural road during the early morning hours. The officers found a seriously damaged car on its roof and the apparently injured accused about 15 metres from it. The accused smelled of alcohol, had blood on his face and was talking gibberish. The accused was arrested for impaired driving at the scene of a single-car accident. The arresting officer did not make a breathalyzer demand at the time of the arrest, as the accused appeared to be injured. He followed the accused to the hospital and made the demand when he was given permission by the accused's attending doctor to speak to him. The demand was made 59 minutes after the arrest. At trial, the accused faced charges of impaired driving, dangerous driving and failing to comply with a breathalyzer demand. The trial judge acquitted the accused of the first two offences because he was not satisfied that the accused was the driver of the vehicle. He acquitted the accused of refusing to comply with a breathalyzer demand on the basis that, since there was insufficient evidence to support a finding that the accused was the driver of the car, he was under no obligation to take the breathalyzer test. The Crown's appeal was allowed. The summary conviction appeal judge held that the trial judge had erred in concluding that the accused was not obliged to provide a breath sample. The summary conviction appeal judge also held, in response to an additional argument advanced by the accused, that the breathalyzer demand complied with the requirement in s. 254(3) of the Criminal Code that the demand be made "as soon as practicable". The accused appealed.

Held, the appeal should be dismissed.

The trial judge found that the arresting officer had reasonable and probable grounds for the arrest. That conclusion was dispositive of the issue of whether the accused was required to comply with the breathalyzer demand despite the trial judge's reasonable doubt as to whether he was the driver of the car. Provided an officer has reasonable and probable grounds to make a breathalyzer demand, the person has a duty to comply with that demand regardless of whether he or she was, in fact, the driver.

The accused had an obligation to comply with the breathalyzer demand only if it is made "forthwith or as soon as practicable" after the police officer has determined that there are reasonable grounds to believe that a person has committed a drinking and driving offence. The arresting officer in this case complied with s. 254(3) of the Code. His decision to postpone additional legal steps after the accused's arrest was entirely appropriate, as he was concerned first and foremost with the accused's health. Moreover, the additional steps, including the demand, should only be taken once an accused person is able to understand the questions and respond to them in a meaningful way. The arresting officer's conduct was consistent with that important legal requirement. There was no basis for concluding that the officer did not comply with the "as soon as practicable" requirement for making a demand under s. 254(3) of the Code.

APPEAL by an accused from a judgment of Summary Conviction Appeal Court allowing a Crown appeal from an acquittal.

R. v. Taraschuk, [1977] 1 S.C.R. 385, 30 C.R.N.S. 321, 5 N.R. 507, 25 C.C.C. (2d) 108, 62 D.L.R. (3d) 84, affg (1973) 12 C.C.C. (2d) 151 (Ont. C.A.), affg (1972), 9 C.C.C. (2d) 345 (Ont. Prov. Ct.), folld Other cases referred to R. v. Ashby (1980), 57 C.C.C. (2d) 348, 9 M.V.R. 158 (Ont. C.A.) [Leave to appeal to S.C.C. refused (1981)]; R. v. Bernshaw, [1995] 1 S.C.R. 254, 176 N.R. 81, [1995] 3 W.W.R. 457, 26 C.R.R. (2d) 132, 95 C.C.C. (3d) 193, 35 C.R. (4th) 201, 8 M.V.R. (3d) 75; R. v. Grant, [1991] 3 S.C.R. 139, 93 Nfld. & P.E.I.R. 181, 130 N.R. 250, 292 A.P.R. 181, 5 C.R.R. (2d) 193, 67 C.C.C. (3d) 268, 7 C.R. (4th) 388, 31 M.V.R. (2d) 309; R. v. Latimer, [1997] 1 S.C.R. 217, 152 Sask. R. 1, 142 D.L.R. (4th) 577, 207 N.R. 215, 140 W.A.C. 1, [1997] 2 W.W.R. 525, 41 C.R.R. (2d) 281, 112 C.C.C. (3d) 193, 4 C.R. (5th) 1; R. v. Letford (2000), 51 O.R. (3d) 737, 150 C.C.C. (3d) 225, 8 M.V.R. (3d) 6 (C.A.); R. v. Phillips (1988), 27 O.A.C. 380, 44 C.R.R. 244, 42 C.C.C. (3d) 150, 64 C.R. (3d) 154, 4 M.V.R. (2d) 239 (C.A.); R. v. Purdon (1989), 1989 ABCA 297, 52 C.C.C. (3d) 270, 19 M.V.R. (2d) 129 (Alta. C.A.); R. v. Storrey, [1990] 1 S.C.R. 241, 37 O.A.C. 161, 105 N.R. 81, 47 C.R.R. 210, 53 C.C.C. (3d) 316, 75 C.R. (3d) 1 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 249(1)(a), 253, 254(3), (5)

David Finley, for respondent. Michael Lacy, for appellant.

The judgment of the court was delivered by

MACPHERSON J.A.: --

A. Introduction

[1] Section 253 of the Criminal Code, R.S.C. 1985, c. C-46 creates the offences of impaired driving and operating a motor vehicle with a blood alcohol concentration exceeding .08. Section 254(3) of the Code requires a police officer who has reasonable and probable grounds to believe that a person has committed an offence under s. 253 to demand "forthwith or as soon as practicable" that the person provide a sample of his or her breath or blood for the purpose of analysis. The principal issue on this appeal is the meaning of "as soon as practicable". The issue arises in the context of a 59-minute delay between arrest and demand.

B. Facts

(1) The events

[2] Early on the morning of May 16, 2000, Bill Sawchuk came to the police station in Espanola to report that he had just seen a rollover accident near the bridge on Highway 6 near Old Webbwood Road in Espanola. Two police officers, Constable Blair Ramsay and Constable Paula McLennan, immediately went to investigate. They found the overturned car in a ditch near the bridge. At the trial, Constable Ramsay described the accident scene in this fashion:

A The vehicle was, obviously, on its roof. The driver's side was completely -- was completely crushed in, if I remember correctly. The passenger's side was -- was crushed. The roof was crushed almost to the point where about halfway up the window wells, it was crushed down. I could get myself into the passenger's side to get into the vehicle to look to see if anybody was trapped inside and there wasn't any evidence of anybody inside.

[3] The officers began to search for occupants of the car. They found the appellant, Douglas Squires, farther along in the ditch, approximately 15 metres from the car. He was lying on his back. As the officers approached him, Mr. Squires started to sit up. The officers, concerned about possible injuries, convinced him to lie down again.

[4] Constable Ramsay testified that "I immediately noticed a smell of an alcoholic beverage coming from his breath as he spoke to me, immediately". He said that Mr. Squires was "Speaking almost gibberish and not really saying anything. Just mumbling" and that "there was some injury to his face. There was some blood on his face that I can recall".

[5] Constable Ramsay continued his testimony: "I believed that Mr. Squires was the driver of the vehicle, and at that point, I arrested -- at 1:03, I arrested Mr. Squires for impaired driving".

[6] At about the same time, ambulance and fire personnel arrived. Constable Ramsay assisted them. The ambulance transported Mr. Squires to the hospital. Constable Ramsay followed in the police cruiser. They arrived at the hospital at 1:35 a.m. and Mr. Squires was examined by Dr. Simone Meikleham.

[7] Constable Ramsay described the next few minutes in the following terms:

Q. Okay; so he was being attended to by a doctor?

A. Yes, the doctor was there also.

Q. Where were you in relation to where he was?

A. I was just standing right outside the door.

Q. Outside the door?

A. Yes. Well, at -- at one point, I helped them move him over to the stretcher but after that I -- there was a lot of medical personnel so I just kind of stayed outside the door.

Q. And when was it that you saw Mr. Squires again?

A. At 1:56, I was advised by Dr. Meikleham that -- she came out of the Emergency Room, the Trauma Room, and I asked her if I could speak with him because I needed to, and she said that "it's no problem".

[8] Constable Ramsay went in to see Mr. Squires. He read him the rights to counsel in relation to the arrest for impaired driving. Mr. Squires responded that he understood and that he did not want to contact a lawyer. Constable Ramsay then read him the primary caution relating to the possible use in court of anything he said. Then, at 2:02 a.m., 59 minutes after the initial arrest, Constable Ramsay read the breathalyzer demand to Mr. Squires who acknowledged that he understood it.

[9] At 2:57 a.m., Constable Ramsay turned Mr. Squires (still in the hospital room) over to Constable Steven Edwards, a qualified breathalyzer technician. Attempts to administer the breathalyzer test were made at 3:00, 3:03 and 3:04 a.m. The attempts failed. At 3:05 a.m., Constable Edwards advised Mr. Squires that he would be charged with refusing to provide a proper breath sample.

(2) The trial and summary conviction appeal

[10] Mr. Squires was charged with impaired driving (Criminal Code, s. 253) dangerous driving (s. 249(1)(a)) and refusing to provide a sample of his breath pursuant to a demand made by a police officer (s. 254(5)). He was tried before Justice John D. Bark in Espanola. Justice Bark acquitted Mr. Squires of all counts. On the first two counts, the acquittals flowed from the trial judge's conclusion that "the evidence does not satisfy me that he was the driver in question that night".

[11] With respect to the charge relating to the refusal to provide a breath sample, the trial judge reasoned:

If there are reasonable and probable grounds and there is a refusal, can he legally refuse to take the test even though there is no finding that he was the driver. I am, frankly, not prepared to go that far. I have reasonable and probable grounds to lay the charge, but when I find that there is not sufficient evidence to support that he was the driver of the vehicle under the circumstances, then it follows that Mr. Squires is under no obligation to take the breathalyzer test. That is the only basis upon which I would dismiss that charge. I think the demands were satisfactory under the circumstances. He has not shown just cause why he refused to blow in the court's opinion. The doctor's opinion was that he was capable of blowing and that evidence was really uncontradicted.

[12] The Crown appealed the acquittal on the refusal to provide a breath sample charge to the Summary Conviction Appeal Court. Justice Robert G.S. Del Frate allowed the appeal on September 24, 2001. He held that the trial judge had erred in concluding that once he formed a reasonable doubt about whether Mr. Squires was driving the car, this removed the requirement that he provide a breath sample. The summary conviction appeal judge also held, in response to an additional argument advanced by Mr. Squires, that Constable Ramsay's demand at 2:02 a.m. that Mr. Squires provide a breath sample complied with the "as soon as practicable" requirement of s. 254(3) of the Code.

[13] The summary conviction appeal judge remitted the matter to the trial judge for purposes of entering a conviction and sentencing in relation to the refusal to provide a breath sample charge. Mr. Squires appeals from Justice Del Frate's decision.

C. Issues

[14] The appellant raises two issues which I would frame as follows:

(1) Did the summary conviction appeal judge err in concluding that the trial judge had found that there were reasonable and probable grounds for the police to arrest the appellant for impaired driving?

(2) Did the summary conviction appeal judge err in concluding that the demand for a breath sample complied with the "as soon as practicable" requirement of s. 254(3) of the Criminal Code?

D. Analysis

(1) The driving/demand issue

[15] The summary conviction appeal judge concluded that the trial judge erred by linking a reasonable doubt on the impaired driving charge with a refusal to comply with a demand for a breath sample. He stated:

The trial judge arrived at this finding [acquittal] on the basis that since he had a reasonable doubt that the accused was not driving, then he would not have been required to provide a sample.

It is clear from the Supreme Court of Canada decision in Taraschuk v. The Queen (1975), 25 C.C.C. (2d) 108 that provided an officer has reasonable and probable grounds to ask for such a sample, the person has a duty to comply regardless of whether he or she was, in fact, the driver.

[16] The appellant does not quarrel with the summary conviction appeal judge's statement of the ratio from R. v. Taraschuk, [1977] 1 S.C.R. 385, 62 D.L.R. (3d) 84 in the second paragraph of this passage. However, he does contend that the summary conviction appeal judge's description of the trial judge's error in the first paragraph was incorrect.

[17] The starting point for this argument is the accepted proposition that in order to constitute "reasonable and probable grounds" pursuant to s. 254(3) of the Code, the grounds must be both subjectively held by the officer and objectively justified: see R. v. Bernshaw, [1995] 1 S.C.R. 254 at pp. 284-85, 95 C.C.C. (3d) 193 at p. 216; see also, with respect to arrest generally, R. v. Storrey, [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316, and R. v. Latimer, [1997] 1 S.C.R. 217, 112 C.C.C. (3d) 193.

[18] The appellant contends that the trial judge found only that the police officer had subjective grounds to believe that there were reasonable and probable grounds to arrest the appellant for impaired driving; implicit in the trial judge's reasons, the appellant submits, is his conclusion that there were not objective grounds to support the police officer's subjective belief.

[19] I disagree. The trial judge stated explicitly: "I do find that the officers had reasonable and probably [sic] grounds to make the arrest under the circumstances." A trial judge is deemed to know the law, especially on such a fundamental and pervasive matter as the grounds for making an arrest. I see no reason for reading into the trial judge's statement an implicit conclusion that there was not an objective basis for Constable Ramsay's subjective belief that there were grounds for an arrest. If the trial judge was thinking along the lines of this dichotomy, he would have said so.

[20] My conclusion on this issue is supported by the trial judge's review of the evidence that served as a basis for the formulation of Constable Ramsay's opinion to arrest the appellant:

The police relied on the odour of alcohol, glassy eyes, slurred speech, and disorientation to give them reasonable and probable grounds to suspect impairment.

[21] In Latimer, supra, Lamer C.J.C. described the objective component of the test for arrest in these terms, at p. 232 S.C.R., p. 204 C.C.C.:

[T]hose grounds must be justifiable from an objective point of view, such that a reasonable person placed in the position of the arresting officer can conclude that there were reasonable and probable grounds for the arrest.

(Emphasis in original)

[22] In my view, any reasonable person reading the trial judge's description of the appellant, and recalling other factors relating to the incident (clear night, quiet rural community, overturned and crushed car involved in a single vehicle accident, injured man in ditch 15 metres from the car approximately one minute after the accident) would reach this conclusion -- of course Constable Ramsay had reasonable and probable grounds to arrest the appellant for impaired driving.

[23] In summary, I agree with the summary conviction appeal judge's interpretation of the trial judge's reasons. The trial judge's conclusion that "I do find that the officers had reasonable and probably [sic] grounds to make the arrest under the circumstances" should be taken at face value -- it was a conclusion about both the subjective and objective components of the test for reasonable and probable grounds. It follows that the trial judge was either unaware of, or misapplied, R. v. Taraschuk and the summary conviction appeal judge was correct when he identified this error. Accordingly, this ground of appeal fails.

(2) The "as soon as practicable" issue

[24] The appellant had an obligation to comply with Constable Ramsay's demand for a breath sample only if it was a proper or lawful demand: see R. v. Grant, [1991] 3 S.C.R. 139 at pp. 148-51, 67 C.C.C. (3d) 268 at pp. 276-77. Under s. 254(3) of the Code, a demand for a breath sample will be a proper demand only if it is made "forthwith or as soon as practicable" after the police officer has determined that there are reasonable and probable grounds to believe that a person has committed either the offence of impaired driving or the offence of operating a motor vehicle with a blood alcohol concentration exceeding .08.

[25] In the present case, Constable Ramsay arrested the appellant for impaired driving at 1:03 a.m. He made the demand for a breath sample at the hospital at 2:02 a.m. The parties agree that this demand was not made "forthwith". The appellant contends that the demand also did not comply with the "as soon as practicable" language of s. 254(3).

[26] The trial judge did not consider this issue. [^1] The summary conviction appeal judge fully considered it and rejected the appellant's submissions. I agree with his conclusion.

[27] In my view, this is a case in which the police officer's behaviour at the scene of a serious accident was professional, even humane, and in compliance with s. 254(3) of the Criminal Code.

[28] Constable Ramsay testified that he arrested the appellant for impaired driving at 1:03 a.m. Ambulance and fire personnel arrived very soon thereafter. He assisted them with their equipment down a steep ditch to where the appellant was lying. He decided not to use a roadside screening device:

Q. Did you have a roadside screening device available?

A. Yes, always, yes.

Q. Alright; and you chose not to use that?

A. Yes, I chose not to.

Q. And you're saying that was because of the medical concerns?

A. Yes, I'd have to say that was my determination, was immediately -- I didn't want to have to do anything with this person until he'd been looked at afterwards. My main concern, at that point, was -- was Mr. Squires' health.

[29] The appellant was transported to hospital by an ambulance at around 1:30-1:35 a.m. Constable Ramsay went to the hospital and described the next few minutes, including his decision not to continue with any legal steps, in this exchange during cross-examination:

Q. Alright, was Mr. Squires immediately turned over to Dr. Meikleham upon his arrival or was there some time there before the doctor attended to him?

A. There may have been. I don't know. I can't -- I went in and I stayed outside as everybody rushed to attend to Mr. Squires. There was quite a few. There's nurses and -- but Dr. -- Dr. Meikleham was right there. She was in and out.

Q. Alright; and, again, you didn't provide Mr. Squires with his Rights to Counsel at that point upon arrival at the hospital?

A. No. No.

Q. And your reason for that, you're saying, is because you're waiting for him to see a doctor first?

A. That's correct.

Q. You'd agree, though, that you did have an opportunity to provide him his Rights to Counsel?

A. There was an opportunity but it was kind of . . .

Q. It was a decision on your part?

A. It was a decision on my part, yes, that's correct. I waited. I mean, Mr. Squires' health is more important, I apologize, but -- at that point, than reading something out of a book.

[30] At 1:56 a.m., Dr. Meikleham gave permission to Constable Ramsay to speak to the appellant. He did so and began to take the required legal steps including, at 2:02 a.m., making the demand for a breath sample.

[31] In several cases, the words "as soon as practicable" have been interpreted to mean "within a reasonably prompt time", not "as soon as possible": see R. v. Ashby (1980), 57 C.C.C. (2d) 348, 9 M.V.R. 158 (Ont. C.A.), leave to appeal to the Supreme Court of Canada refused, April 27, 1981; R. v. Phillips (1988), 42 C.C.C. (3d) 150, 4 M.V.R. (2d) 239 (Ont. C.A.); R. v. Letford (2000), 51 O.R. (3d) 737, 150 C.C.C. (3d) 225 (C.A.); and R. v. Purdon (1989), 1989 ABCA 297, 52 C.C.C. (3d) 270, 19 M.V.R. (2d) 129 (Alta. C.A.).

[32] I have no hesitation concluding that Constable Ramsay's demand in the early morning hours of May 16, 2000 was made both "as soon as practicable" and "within a reasonably prompt time". The arrest at 1:03 a.m. was appropriate because the officer had formed reasonable and probable grounds and the arrest would not compromise the appellant's medical condition or require him to respond to legal matters raised by questions from the officer. However, the decision to postpone additional legal steps, both at the accident scene and for about 20 minutes at the hospital, was also entirely appropriate in the circumstances of this case. Throughout the 59 minutes in issue in this appeal, Constable Ramsay was concerned first and foremost with the appellant's health. Moreover, the additional legal steps, including the demand, should only be taken once an accused person is able to understand the questions and respond to them in a meaningful way. Constable Ramsay's conduct on the night in question was consistent with this important legal requirement.

[33] In summary, there is no basis for concluding that Constable Ramsay did not comply with the "as soon as practicable" requirement for making a demand under s. 254(3) of the Code. His conduct was lawful and, in my view, humane.

E. Disposition

[34] I would dismiss the appeal.

Appeal dismissed.

[^1]: The closing addresses of trial counsel were not reproduced for the appeal. Accordingly, I do not know if this issue was raised at trial.