Her Majesty the Queen v. Brode [Indexed as: R. v. Brode]

109 O.R. (3d) 481

2012 ONCA 140

Court of Appeal for Ontario,

Rosenberg, MacPherson and Epstein JJ.A.

March 6, 2012

Criminal law -- Customs -- Designated border services officers ("BSOs" or "BSO") having power to gather evidence of insobriety at border crossings -- That power necessary to enable designated BSOs to carry out their duty under s. 163.5 of Customs Act to prevent impaired driving at border crossings -- Designated BSO's demand that accused leave car and subsequent observations of accused's insobriety not resulting from accused compelled against himself -- No evidence accused directed to leave car as part of sobriety test -- Designated BSO's evidence of accused's insobriety admissible -- Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), s. 163.5.

Criminal law -- Drinking and driving -- Accused entering Canada by car -- Border services officer noting signs of impairment and calling specially designated border services officer ("BSOs" or "BSO") to make observations of accused -- Specially designated BSO having power to ask accused to leave car to facilitate questioning and to make observations regarding accused's sobriety -- Accused displaying several signs of impairment -- Accused acknowledging had been drinking -- Accused arrested and given Charter rights -- Accused arguing that BSO not authorized to gather evidence of impairment at border crossings or, if authorized, request to exit car amounting to illegal sobriety test -- Interpretation of Customs Act powers to designated BSO include ancillary powers doctrine thus providing power for BSOs to gather evidence of insobriety -- BSO not using order accused leave car as part of sobriety test -- Appeal from conviction dismissed.

While asking the accused routine questions as the accused was entering Canada, a border services officer ("BSOs" or "BSO") noticed signs of impairment. The officer called for a BSO designated under the Customs Act as having powers under specific sections of the Criminal Code, R.S.C. 1985, c. C-46 to respond to suspected impaired drivers. Section 163.5 of the Customs Act gives a designated BSO the arrest powers of a peace officer under ss. 495 to 497 of the Criminal Code and the powers of a peace officer under ss. 254 and 256 of the Criminal Code to demand breath and blood samples and to require that a person accompany him or her for the purpose of taking samples. The designated BSOs directed the accused to get out of his car, observed signs of impairment, arrested the accused for impaired driving and informed him of his right to counsel. The accused was convicted, and his appeal to the Superior Court was dismissed. He appealed.

Held, the appeal should be dismissed.

The Customs Act confers upon designated BSOs the powers of peace officers under ss. 495-497 of the Criminal Code, including the power to make a demand for blood or a breath sample, to detain a person in custody and to require the person to accompany the BSO for the purpose of taking blood or breath samples. Although s. 163.5 of the Customs Act did not explicitly confer the power to gather evidence of insobriety, it is clear that Parliament intended to confer on designated BSO the authority to try to prevent the impaired operation of motor [page482] vehicles at the entry points into Canada. The ancillary powers doctrine should be applied to confer the power on designated BSOs to gather evidence of insobriety as a necessary part of carrying out their duties under s. 163.5(3). The limitation placed on their powers is that they may not use a power conferred to enforce the Customs Act for the sole purpose of investigating a criminal offence under any other Act of Parliament.

The evidence did not support a finding that the officers required the accused to get out of his car for the purpose of using his actions while exiting the car as a sobriety test. The evidence was more indicative of the officers' requesting that the accused get out of the car so that, once he was outside, they could question him and gather indicators of insobriety. The officers' evidence of insobriety was not obtained as a result of the accused being compelled directly against himself. The evidence was admissible on the issue of impairment.

APPEAL from the judgment of the summary conviction appeal court dated February 3, 2011 by Rogin J. of the Superior Court of Justice affirming the conviction for impaired driving entered by G. Campbell J. of the Ontario Court of Justice on September 2, 2008.

Cases referred to R. v. Iannotta, [2009] O.J. No. 5181 (S.C.J.), distd R. v. Quenneville, [2009] O.J. No. 1549, 2009 ONCA 325, consd Other cases referred to Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; R. v. Dedman, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, [1985] S.C.J. No. 45, 20 D.L.R. (4th) 321, 60 N.R. 34, J.E. 85-781, 11 O.A.C. 241, 20 C.C.C. (3d) 97, 46 C.R. (3d) 193, 34 M.V.R. 1, 14 W.C.B. 396; R. v. Milne (1996), 1996 CanLII 508 (ON CA), 28 O.R. (3d) 577, [1996] O.J. No. 1728, 90 O.A.C. 348, 107 C.C.C. (3d) 118, 48 C.R. (4th) 182, 35 C.R.R. (2d) 257, 18 M.V.R. (3d) 161, 31 W.C.B. (2d) 38 (C.A.); R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652, [1999] S.C.J. No. 18, 171 D.L.R. (4th) 1, 237 N.R. 157, J.E. 99-878, 133 C.C.C. (3d) 129, 24 C.R. (5th) 97, 61 C.R.R. (2d) 245, 41 W.C.B. (2d) 406, revg 1997 CanLII 979 (ON CA), [1997] O.J. No. 4806, 153 D.L.R. (4th) 617, 105 O.A.C. 1, 120 C.C.C. (3d) 97, 12 C.R. (5th) 1, 48 C.R.R. (2d) 39, 36 W.C.B. (2d) 382 (C.A.); R. v. Orbanski, [2005] 2 S.C.R. 3, [2005] S.C.J. No. 37, 2005 SCC 37, 253 D.L.R. (4th) 385, 335 N.R. 342, [2005] 9 W.W.R. 203, J.E. 2005-1172, 195 Man. R. (2d) 161, 196 C.C.C. (3d) 481, 29 C.R. (6th) 205, 132 C.R.R. (2d) 117, 19 M.V.R. (5th) 23, 65 W.C.B. (2d) 615; R. v. Saunders, 1988 CanLII 197 (ON CA), [1988] O.J. No. 397, 27 O.A.C. 184, 41 C.C.C. (3d) 532, 63 C.R. (3d) 37, 36 C.R.R. 175, 4 M.V.R. (2d) 199, 4 W.C.B. (2d) 150 (C.A.); R. v. Smith (1996), 1996 CanLII 1074 (ON CA), 28 O.R. (3d) 75, [1996] O.J. No. 372, 88 O.A.C. 374, 105 C.C.C. (3d) 58, 46 C.R. (4th) 229, 34 C.R.R. (2d) 314, 19 M.V.R. (3d) 262, 30 W.C.B. (2d) 37 (C.A.); R. v. Waterfield, [1963] 3 All E.R. 659, [1964] 1 Q.B. 164, [1963] 3 W.L.R. 946, 48 Cr. App. Rep. 42 (Eng. C.C.A.); Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 10(b) Criminal Code, R.S.C. 1985, c. C-46, ss. 2, 253(1)(a), (b), 254 [as am.], 256 [as am.], 495, 496, 497 [as am.] Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) [as am.], ss. 11, 153.1, 160(1), 163.5 [as am.], (3) Highway Traffic Act, R.S.O. 1990, c. H.8, s. 48 [as am.], (1) [as am.] Interpretation Act, R.S.C. 1985, c. I-21, s. 31(2) [page483] Authorities referred to House of Commons Debates, 36th Parl., 1st Sess., No. 32 (November 18, 1997) at 1115 (Sue Barnes)

Frank Miller, for appellant. Scott Latimer, for respondent

The judgment of the court was delivered by

EPSTEIN J.A.: -- Overview

[1] This appeal involves a particular aspect of the frequently considered tension between the individual rights of motorists and the broad societal concern over the harm caused by those who drink and drive. The focus of this appeal is the vast number of motorists who daily enter Canada from the United States who are required to stop and interact with border services officers ("BSOs"). The issue involves the ability of certain specifically designated BSOs to gather evidence of insobriety of drivers crossing the border into Canada.

[2] One such driver is the appellant, Kevin Brode, who was convicted by a judge of the Ontario Court of Justice of impaired driving. The appellant was convicted based on the evidence of two such designated BSOs upon his entry into Canada from the United States. This evidence consisted of signs of impairment the two designated BSOs observed as the appellant got out of his car at their direction and immediately thereafter. The observations were made after the appellant was detained but before he was advised of his rights under s. 10(b) of the Canadian Charter of Rights and Freedoms.

[3] The appellant's appeal to the Superior Court was dismissed. He appeals to this court pursuant to leave granted in respect of an issue raised for the first time before the summary conviction appeal court judge ("SCAJ"): the admissibility of the evidence of the two designated BSOs concerning their observations of the appellant.

[4] Before this court, the appellant seeks leave to argue an additional issue: whether the decision of the SCAJ is in conflict [page484] with at least one other judgment of the Ontario Superior Court, namely, R. v. Iannotta, [2009] O.J. No. 5181 (S.C.J.). The alleged conflict necessarily involves the interpretation of two previous cases of this court: R. v. Quenneville, [2009] O.J. 1549, 2009 ONCA 325 and R. v. Milne (1996), 1996 CanLII 508 (ON CA), 28 O.R. (3d) 577, [1996] O.J. No. 1728, 107 C.C.C. (3d) 118 (C.A.), both of which deal with the admissibility of observations of insobriety made by a peace officer while carrying out authorized duties.

[5] I would dismiss the appeal. In my view, while making the observations they did of the appellant, the designated BSOs were acting within their authority and, on this record, there was no reason to exclude their evidence.

[6] I am not persuaded that leave to appeal the second issue is required. I agree with the submission made by counsel for the appellant in oral argument that the legal principles developed in Milne, Quenneville and Iannotta are intertwined with the issue for which leave was specifically granted. I will therefore address them within my analysis of the admissibility of the observations of the two designated BSOs. As my reasons will show, I see no conflict arising from these cases.

B. The Background

(1) Facts

[7] On September 8, 2006, the appellant, a Canadian citizen entering Canada at Windsor, Ontario, stopped his car at a Canadian Customs booth staffed by BSO Rohrer. Pursuant to his authority and duties under the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), Rohrer asked the appellant routine questions about his citizenship, the length of time he spent outside of Canada and his place of residence.

[8] During the course of this interaction, Rohrer noticed signs of impairment: the appellant's speech was slurred, his eyes were "a little glossy and red" and there was a "small, faint" smell of alcohol on his breath. Rohrer asked the appellant if he had been drinking. The appellant responded that he had consumed three drinks. Based on his view that the appellant was intoxicated, Rohrer requested that he turn his car off and hand over the keys. The appellant complied.

[9] Rohrer called for a BSO designated under the Customs Act as having powers under specific sections of the Criminal Code, R.S.C. 1985, c. C-46 to respond to suspected impaired drivers.

[10] When designated BSOs O'Hearn and Rutherford arrived at the scene, Rohrer told them about his observations of the appellant, including the appellant's statement about his alcohol [page485] consumption. O'Hearn and Rutherford testified that during this time the appellant was putting chewing gum into his mouth.

[11] The appellant was directed to get out of the car. O'Hearn testified that the appellant stumbled as he left the car, had bloodshot eyes, smelled of alcohol and spoke in a "loud and cocky" manner. Based on these observations, O'Hearn formed the opinion that the appellant's ability to drive was impaired. The appellant again acknowledged -- this time to O'Hearn -- that he had been drinking.

[12] O'Hearn testified that at that point he had "more than enough indicators to believe that [the appellant] was impaired", and therefore arrested him for impaired driving. He cautioned the appellant and advised him of his rights to counsel under s. 10(b) of the Charter.

[13] Rutherford's evidence about her interaction with and observations of the appellant was much the same as O'Hearn's.

[14] Later, at approximately 10:25 p.m., Constable Kerekes of the Windsor Police Services attended the customs detention area to take the appellant to the police station. Kerekes detected a slight smell of alcohol on the appellant, but formed no opinion about his ability to drive.

[15] On his arrival at the station, the appellant initially declined an offer to use the telephone to call a lawyer but later changed his mind. A breath test was administered before the appellant was able to make contact with a lawyer.

[16] The appellant was charged with impaired operation of a motor vehicle and exceeding the blood alcohol maximum, pursuant to s. 253(1)(a) and (b) of the Criminal Code, respectively. On the basis of the Crown's acknowledgement that the second count could not be made out, the charge of over 80 was dismissed. The appellant was convicted of impaired operation.

(2) The legislative background

[17] The Customs Act regulates the movement of goods and people into and out of Canada. To this end, certain provisions require individuals coming into the country to present themselves to officers empowered to detain and question them, perform searches and examinations, and seize goods.

[18] Prior to 1998, officers at the border had authority to investigate or detain individuals only in respect of matters relating to the Customs Act. They did not have authority to follow up on concerns that individuals with whom they engaged while performing their duties might be driving vehicles across the border into Canada while their ability to do so was impaired. This gap in the powers of BSOs became a matter of public concern. [page486] Parliament responded through the passage of Bill C-18, the impetus of which can be appreciated through the following comment of the Parliamentary secretary to the Minister of National Revenue, made at the time of Bill C- 18's second reading (House of Commons Debates, 36th Parl., 1st Sess., No. 32 (November 18, 1997), at 1115 (Sue Barnes)):

I can think of tales from across Canada of people not being able to detain those they suspected of drinking and then later those people getting into accidents. The safety of not only our peace officers but of Canadians is the number one area we are concerned with in this piece of legislation.

[19] As a result of the bill, s. 163.5 was introduced into the Customs Act. Generally, it gives designated BSOs additional powers to respond to drivers crossing the border into Canada who are suspected of being impaired. [See Note 1 below]

[20] At the time of the appellant's arrest on September 8, 2006, s. 163.5 of the Customs Act read as follows:

Powers of designated officers

163.5(1) In addition to the powers conferred on an officer for the enforcement of this Act, a designated officer who is at a customs office and is performing the normal duties of an officer or is acting in accordance with section 99.1 has, in relation to a criminal offence under any other Act of Parliament, the powers and obligations of a peace officer under sections 495 to 497 of the Criminal Code, and subsections 495(3) and 497(3) of that Act apply to the designated officer as if he or she were a peace officer.

Impaired driving offences

(2) A designated officer who is at a customs office and is performing the normal duties of an officer or is acting in accordance with section 99.1 has the powers and obligations of a peace officer under sections 254 and 256 of the Criminal Code and may, on demanding samples of a person's blood or breath under subsection 254(3) of that Act, require that the person accompany the officer, or a peace officer referred to in paragraph (c) of the definition "peace officer" in section 2 of that Act, for the purpose of taking the samples.

Power to detain

(3) A designated officer who arrests a person in the exercise of the powers conferred under subsection (1) may detain the person until the person can be placed in the custody of a peace officer referred to in paragraph (c) of the definition "peace officer" in section 2 of the Criminal Code. [page487]

Limitation on powers

(4) A designated officer may not use any power conferred on the officer for the enforcement of this Act for the sole purpose of looking for evidence of a criminal offence under any other Act of Parliament.

[21] As can be seen, the powers bestowed upon designated BSOs are limited to those of a peace officer under ss. 495 to 497 and ss. 254 and 256 of the Criminal Code.

[22] Sections 495, 496 and 497 of the Criminal Code specify the powers of a peace officer to arrest without a warrant, to issue an appearance notice where an officer decides not to arrest a person and to release a person who has been arrested without a warrant.

[23] At the time of the appellant's arrest, the relevant parts of s. 254 of the Criminal Code provided as follows:

254. . . .

Testing for presence of alcohol in the blood

(2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle or vessel or operating or assisting in the operation of an aircraft or of railway equipment or who has the care or control of a motor vehicle, vessel or aircraft or of railway equipment, whether it is in motion or not, has alcohol in the person's body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.

Samples of breath or blood where reasonable belief of commission of offence

(3) Where a peace officer believes on reasonable and probable grounds that a person is committing, or at any time within the preceding three hours has committed, as a result of the consumption of alcohol, an offence under section 253 [impaired operation of a motor vehicle], the peace officer may, by demand made to that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable (a) such samples of the person's breath as in the opinion of a qualified technician, or (b) where the peace officer has reasonable and probable grounds to believe that, by reason of any physical condition of the person, (i) the person may be incapable of providing a sample of his breath, or (ii) it would be impracticable to obtain a sample of the person's breath,

such samples of the person's blood, under the conditions referred to in subsection (4), as in the opinion of the qualified medical practitioner or qualified technician taking the samples [page488]

are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the person's blood, and to accompany the peace officer for the purpose of enabling such samples to be taken.

[24] Section 256 of the Criminal Code addresses warrants to obtain blood samples and is not at issue in this appeal.

[25] On the basis of its wording at the time, the effect of s. 163.5 of the Customs Act can be summarized as follows. In relation to any criminal offence under any Act of Parliament, a designated BSO under the Customs Act has the powers and obligations of a peace officer under ss. 495 to 497 of the Criminal Code to arrest without a warrant a person where there are reasonable and probable grounds to believe he or she has committed an indictable offence or is about to commit such an offence. A designated BSO may also, where he or she has reasonable grounds to suspect impaired operation of a motor vehicle, make demands for samples of a person's breath or, in some circumstances, samples of a person's blood. The designated BSO may also require that a person accompany him or her for the purpose of taking samples, and may detain that person until they can be placed in the custody of a peace officer.

[26] There is a limitation on these powers: a designated BSO may not use any power conferred for the enforcement of the Customs Act for the sole purpose of looking for evidence of a criminal offence under any other Act of Parliament.

(3) Prior judicial proceedings

(a) The trial

[27] At trial, the appellant defended the charges against him on the basis that his rights under s. 10(b) of the Charter had been breached and that the Crown was unable to demonstrate beyond a reasonable doubt that he was impaired while in the care or control of his car at the time he crossed the border into Canada.

[28] In support of the Charter argument, the appellant submitted that the Crown had not provided him with adequate time to speak to counsel before administering the breath test. The breath sample was therefore conscripted evidence. Campbell J. rejected this argument on the basis that the evidence demonstrated that the appellant was not diligent in asserting his s. 10(b) rights and therefore the "holding off" requirement was not engaged. [page489]

[29] After dismissing the Charter argument, the trial judge found that the evidence of impairment was sufficient and convicted the appellant of impaired driving.

(b) The summary conviction appeal

[30] Before the summary conviction appeal court, the appellant argued that all of the significant evidence upon which the trial judge relied to support the conviction related to observations made by the designated BSOs between the time he was directed to get out of the car and the time when his s. 10(b) rights were given (the "impugned evidence"). This evidence included observations of the appellant's stumbling as he got out of his car, his bloodshot eyes, the odour of alcohol and his speaking in a "loud and cocky" manner. The appellant argued that at the time these observations were made, the designated BSOs were engaged in conduct designed to gather evidence of impairment against him. Relying on the Supreme Court's decision in R. v. Orbanski, [2005] 2 S.C.R. 3, [2005] S.C.J. No. 37, 2005 SCC 37, the appellant argued that only evidence flowing from observations the designated BSOs made of him while carrying out authorized duties is available as evidence of impairment. Since designated BSOs have no authority to investigate or gather evidence of impairment, the observations they made were not admissible to prove impairment.

[31] In a brief endorsement, Rogin J. concluded that the impugned evidence was comprised of general observations the designated BSOs made while carrying out authorized duties. He held that the decisions in Milne and Quenneville therefore governed. Since there was no reason to exclude the evidence, the appeal was dismissed.

(c) The application for leave to appeal to this court

[32] In his endorsement of June 20, 2011, Blair J.A. described the issue the appellant raised in his application for leave to appeal to this court as "a narrow point of law regarding the ability of BSOs to gather evidence of insobriety at border crossings into Ontario". He identified this as an issue that applied to many situations and therefore touched the administration of justice as a whole, and granted leave.

C. Issues

[33] In the order of Blair J.A., the appellant was granted leave to appeal the grounds set out in his notice of appeal: [page490] (1) The SCAJ erred in finding that evidence of observations of insobriety the designated BSOs made after the appellant was directed to get out of his care are admissible to prove impairment absent compliance with s. 10(b) of the Charter. (2) The SCAJ erred in finding that designated BSOs investigating suspected impaired drivers have the same roadside screening powers as police officers investigating the same conduct within Canada. (3) The SCAJ erred in finding that observations made of the conduct of suspected impaired drivers was not compelled incriminatory evidence and thus inadmissible.

[34] While the appellant expressed the grounds in this fashion, in my view, the issue is best summarized by Blair J.A. in his endorsement -- "the ability of BSOs to gather evidence of insobriety at border crossings". As previously noted, the appellant's contention that the decision of the SCAJ raises a possible conflict in the jurisprudence in this area is addressed within my analysis of this issue.

D. Analysis

[35] The appellant advances two main points.

[36] First, he submits that the impugned evidence could only be admissible against him as evidence of impairment if the observations were made in the course of conduct in which the designated BSOs were authorized to engage. Designated BSOs have no authorized investigative powers at common law or by operation of statute. It follows, argues the appellant, that at the time they made the observations that formed the basis of the impugned evidence, the designated BSOs were engaged in unauthorized conduct and the evidence is therefore not available to prove impairment.

[37] Second, the appellant contends that even if the designated BSOs had the authority to take steps to gather indicia of insobriety, the record supports the finding that their request that he get out of his car was itself for the purpose of screening for sobriety. That is, the designated BSOs intended that the actual act of the appellant's getting out of the vehicle would be a sobriety test. The appellant submits that because the evidence available as a result of that direction -- the BSOs' testimony that he stumbled as he got out of the car -- could not have been obtained but for his participation, and was obtained prior to his being advised of his s. 10(b) rights, its use would tend to render [page491] the trial process unfair. The evidence is therefore inadmissible. I will refer to this as the "Milne" issue.

[38] As a factor that should inform the analysis, the appellant submits that designated BSOs are in a unique position. The Customs Act gives them powers that would be constitutionally impermissible if exercised over individuals already in Canada. Sections 11, 153.1 and 160(1) of the Act make it an offence for those seeking entry into Canada to fail to answer truthfully any questions asked by a BSO in the performance of his or her duties or otherwise to interfere with or prevent a BSO from exercising his or her authority under the Act. This includes the authority designated BSOs have under s. 163.5. The point the appellant advances is that since individuals crossing the border into Canada can, by virtue of other provisions in the Customs Act, be compelled to provide self-incriminating evidence, the protection against self- incrimination militates even more strongly against the use of certain evidence in the context of border crossings.

(1) The authority of designated BSOs to gather evidence

[39] The appellant submits that designated BSOs have only the powers that peace officers expressly have under ss. 254 and 256 of the Criminal Code. Outside of this narrow scope, they do not have other powers of peace officers. They do not have the powers of police officers. As a result, their powers do not include the ability to take steps to gather indicators of insobriety before making a demand for a breath or blood sample. Their powers are limited to making observations based on their interaction with people in the normal discourse involving customs matters. If these observations give rise to a concern that an individual driving a car into Canada may be impaired, designated BSOs may demand that he or she provide a breath sample and may exercise arrest and detention powers under ss. 495 to 497 of the Criminal Code.

[40] The interpretation of s. 163.5 of the Customs Act is central to the determination of the powers of designated BSOs.

[41] The fundamental principles of statutory interpretation direct that the words of a statute be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of the legislature: see Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at para. 21; see, also, Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, at para. 26.

[42] As it was worded at the relevant time, s. 163.5 of the Act did not expressly give designated BSOs the power to take steps [page492] to gather evidence of insobriety. However, in my view, such power can be found in the ancillary powers doctrine, grounded in the common law and codified in s. 31(2) of the Interpretation Act, R.S.C. 1985, c. I-21:

31(2) Where power is given to a person, officer or functionary to do or enforce any act or thing, all such powers as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing are deemed to be also given.

[43] The appellant argues that designated BSOs are not peace officers, as defined by s. 2 of the Criminal Code, and have neither the common law powers of police officers nor any implied power other than that set out in the Customs Act.

[44] I agree that BSOs do not share the general duty of police officers to prevent crime and protect life and property. Consequently, they do not have the complete set of ancillary powers of police officers that flow from that general duty. However, in my view, the common law investigative powers recognized in R. v. Waterfield, [1963] 3 All E.R. 659, [1964] 1 Q.B. 164 (Eng. C.C.A.) for police officers apply to designated BSOs exercising their authority under s. 163.5 of the Customs Act.

[45] It is clear that through the s. 163.5 amendments to the Customs Act, Parliament intended to confer authority on BSOs, so far as constitutionally permitted, to prevent the impaired operation of motor vehicles at entry points into Canada -- a duty indistinguishable from that held by police officers to prevent the impaired operation of motor vehicles within Canada. It follows, in my view, that the power to gather evidence of insobriety is necessary to enable designated BSOs to comply with the important obligations associated with responding to the significant threat of harm posed by motorists suspected of being impaired as they drive their vehicles into Canada. In the limited circumstances of their authority under the Customs Act, insofar as designated BSOs have the same obligations as police officers, so too should they have the same ancillary investigative powers.

[46] This conclusion is further supported by the illogical outcome that would ensue if the restrictive interpretation suggested by the appellant were to ensue. Without the power to gather evidence of sobriety, many individuals would unnecessarily be subjected to breath or blood sample demands in circumstances where less intrusive and less costly investigative steps may prove that initial concerns regarding potential impairment were not warranted.

[47] In my opinion, therefore, s. 31(2) of the Interpretation Act is a full answer to the appellant's contention that the ancillary [page493] powers doctrine cannot be applied to designated BSOs because they are not police officers.

[48] It follows that at the time of the appellant's detention, the designated BSOs, acting pursuant to their s. 163.5(3) authority to fulfill their duties and obligations under ss. 254, 256 and 495 to 497 of the Criminal Code, had the same inferred ancillary investigative powers as police officers who detain a motorist under s. 48(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. [See Note 2 below]

[49] The limits of the authority designated BSOs have to investigate suspected impaired driving can be determined by reference to both the general common law test for ancillary powers and the particular powers that peace officers investigating instances of impaired driving within Canada have been found to possess.

[50] Generally speaking, the common law ancillary powers doctrine establishes that where the conduct of a police officer is prima facie unlawful interference with a person's liberty, the court must consider whether the conduct (a) falls within the general scope of any duty imposed by statute or recognized at common law and (b) involves an unjustifiable use of powers associated with the duty: see Waterfield; R. v. Dedman, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, [1985] S.C.J. No. 45, 20 C.C.C. (3d) 97, at pp. 119-22 C.C.C.; see, also, R. v. Monney, 1997 CanLII 979 (ON CA), [1997] O.J. No. 4806, 120 C.C.C. (3d) 97 (C.A.), at para. 83, revd on unrelated grounds 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652, [1999] S.C.J. No. 18.

[51] The ancillary powers of police officers to investigate impaired driving have been specifically considered by this court in R. v. Saunders, 1988 CanLII 197 (ON CA), [1988] O.J. No. 397, 41 C.C.C. (3d) 532 (C.A.) and in R. v. Smith (1996), 1996 CanLII 1074 (ON CA), 28 O.R. (3d) 75, [1996] O.J. No. 372, 105 C.C.C. (3d) 58 (C.A.).

[52] In Saunders, Cory J., writing for the court, held, at p. 539 C.C.C., that an officer can "take reasonable steps to determine whether there is evidence to justify making a demand under s. 238 [now s. 254] of the Criminal Code".

[53] In Smith, Doherty J.A. addressed the scope of such reasonable steps and clarified, at p. 86 O.R., p. 73 C.C.C., that while an exhaustive list of appropriate procedures cannot be provided, "a procedure cannot be reasonable within the meaning of s. 48 [of the Highway Traffic Act, infra] unless it can be performed at the site of the detention, with dispatch, with no danger to the safety of the detainee and with minimal inconvenience to the [page494] detainee". On the facts of that case, a standing sobriety test met the requirements and was a reasonable step performed to determine whether an officer had reasonable and probable grounds to believe that the individual was impaired and could be subjected to a breath sample demand.

[54] I therefore conclude that in the circumstances of this case, O'Hearn and Rutherford had the power to take reasonable steps in order to determine whether grounds existed for a s. 254 demand. Here, the step taken was to direct the appellant to get out of his vehicle in order to gather additional indicators of his sobriety. According to the considerations set out in Smith, the step was reasonable.

[55] Given my conclusion that the powers of designated BSOs extend to gathering evidence, I see no reason to depart from the well-established constitutional framework established in Saunders and subsequent authorities, in which, pursuant to s. 1 of the Charter, reasonable investigative steps may take place absent s. 10(b) compliance.

[56] I would therefore not give effect to this ground of appeal.

(2) The Milne issue: was the request that the appellant get out of the vehicle itself a sobriety test?

[57] In Milne, as here, the appellant was charged with impaired driving. The police first observed him while he was in his car. Evidence of impairment was noted. A police officer asked the appellant to get out of his car. Upon compliance, the appellant was subjected to various sobriety tests. Following the failed tests, the appellant was arrested, cautioned and a formal demand for breath samples was made. The readings indicated a blood-alcohol level in excess of the limit. The appellant was convicted of impaired driving.

[58] His summary conviction appeal was dismissed.

[59] The appellant was successful on appeal to this court on the basis that the evidence in issue was obtained from his compelled direct participation in the sobriety tests. Moldaver J.A., speaking for the court, held, at pp. 133-34 C.C.C., that admitting the observations made as a result of the appellant's compelled participation in the tests -- designed to firm up mere suspicion of impairment -- would render the trial unfair on the basis that the motorist had been conscripted against himself [at pp. 591-92 O.R.]:

In view of my conclusion that the tests authorized by s. 48(1) of the HTA were not meant to provide the police with a means of gathering self-incriminatory evidence to be used against the motorist at trial, and my further view that s. 48(1) would not survive s. 1 Charter scrutiny if that were its purpose, I am satisfied that the admission at trial of the co-ordination [page495] test results to prove impairment on a charge of impaired driving would render the trial unfair.

The unfairness arises in part from the fact that the motorist has been conscripted against himself or herself when, at the behest of the police, he or she is required to undertake co-ordination tests designed to establish or disprove impairment. The use of that evidence, which could not have been obtained but for the participation of the motorist in its construction, would tend to render the trial process unfair. Moreover, the use of the test results to prove impairment at trial constitutes an impermissible broadening of the scope and purpose of the testing procedures contemplated by s. 48(1) of the HTA. Since the tests were not meant to provide the police with a means of gathering evidence to incriminate the motorist at trial, surely it would render the trial unfair if the state could use them for that purpose. (Emphasis added)

[60] However, Moldaver J.A. also clarified, at p. 132 C.C.C., that the prohibition on the use of conscripted evidence does not apply to general observations made by an officer in the course of his or her duties outside the scope of the compelled activity [at p. 590 O.R.]:

I wish to make it clear that this conclusion applies only to evidence obtained from compelled direct participation by the motorist in roadside tests authorized by s. 48(1) of the HTA, specifically designed to determine impairment or a blood-alcohol level exceeding 80 mg. I am not referring to observations the officer might make of the driver while carrying out other authorized duties. Thus, by way of example, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, blood-shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment . . . .

This distinction accords with the principles outlined by Lamer J. (as he then was) in R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3 at p. 17, 46 C.C.C. (3d) 129 at p. 140. In a case turning on identification, Lamer J. drew a distinction between physical evidence resulting from mere observation, and physical evidence "that could not have been obtained but for the participation of the accused in the construction of the evidence for the purposes of the trial", such as the line-up evidence in question.

[61] This approach was affirmed by the Supreme Court of Canada in Orbanski, at paras. 58-49.

[62] This court returned to the issue more recently in Quenneville [at para. 1]:

The line drawn in [Milne] as to the limitation on the use of evidence acquired at the roadside, is evidence obtained through the "compelled direct participation" in sobriety trials. The observations made as [the detained driver] exited his vehicle, even in response to a direction from the officer, is not compelled direct participation in the roadside tests so as to attract the limitation on use. (Citations omitted) [page496]

[63] The appellant's position can be expressed as follows: if a designated BSO asks a person to get out of the car with the intention of using his or her compliance as a sobriety test itself, the observations made cannot be used as proof of impairment. For support, the appellant relies on Hill J.'s reasons in Iannotta, at paras. 57-58:

In the ordinary case, a direction from a police officer to a vehicle driver to exit his or her car, in the context of a roadway stop, does not necessarily, or perhaps even probably, mean that the direction to the detainee was intended by the constable to use the very sequence of conduct of exiting and standing beside the vehicle as the sobriety test.

However, the facts of the present case are uniquely different given Const. Ruttan's testimony, and entirely distinguishable from those in Quenneville. The trial court, accordingly, erred in using the evidence of the appellant's unsteadiness on his feet as substantive evidence of impairment.

[64] The foundation of the appellant's argument is that, like in Iannotta, the record supports the finding that by requiring the appellant to get out of the car, the designated BSOs mandated him to take a "disguised sobriety test". It follows, argues the appellant, that pursuant to the Milne line of authority, any evidence gathered in taking that step was conscriptive in nature and inadmissible to prove impairment.

[65] I would not give effect to this argument as this case, on its facts, is fundamentally distinguishable from Iannotta.

[66] In Iannotta, there was clear evidence of conscriptive motive: the investigating officer testified that his request that the accused get out of his vehicle was intended as a sobriety test.

[67] The evidence upon which the appellant relies to establish the proposed "disguised sobriety test" is the testimony of Rutherford, who, in cross-examination, stated that "we [he and O'Hearn] proceeded to ask [the appellant] to step out of the vehicle and question him to gather indicators if there were going to be more indicators", and "Officer Rohrer gave us his indicators and it was Officer O'Hearn and I who would've built more indicators on -- upon asking [the appellant] to step out of the vehicle."

[68] In my view, this evidence does not support a finding that the officers required the appellant to get out of his car for the purpose of using his actions while exiting the car as a sobriety test. The evidence is more indicative of the officers' requesting that the appellant get out of the car so that once he was outside they could question him and gather indicators of insobriety. [page497]

(3) What is the import of the authority granted to BSOs under [ss. 11](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-1-2nd-supp/latest/rsc-1985-c-1-2nd-supp.html), [153.1](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-1-2nd-supp/latest/rsc-1985-c-1-2nd-supp.html) and [160(1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-1-2nd-supp/latest/rsc-1985-c-1-2nd-supp.html) of [Customs Act](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-1-2nd-supp/latest/rsc-1985-c-1-2nd-supp.html)?

[69] As the appellant points out, there are differences between the legal rights of individuals detained and questioned by peace officers within Canada, and the legal rights of those detained by BSOs at a border crossing. It is, pursuant to ss. 11 and 160(1) of the Customs Act, an offence to fail to answer truthfully any question posed by a BSO who is exercising his or her lawful authority. Similarly, it is an offence to interfere with, molest, hinder or prevent a BSO in exercising his or her authority: see ss. 153.1 and 160(1) of the Customs Act.

[70] These differences, however, are of no consequence to the issues raised in this appeal. As discussed above, the impugned evidence is comprised of general observations made while the designated BSOs were engaged in authorized activities. Milne and Quenneville clearly hold that such observations are admissible to prove impairment.

[71] I am not saying that the differences between the legal rights of individuals detained and questioned as part of an impaired driving investigation at the border and those detained for the same purpose within Canada will never be a relevant consideration in considering the admissibility of evidence of impairment. There may be circumstances in which the offence provisions of the Customs Act may affect the admissibility of such evidence. However, no such circumstances arise in this case.

E. Conclusion and Disposition

[72] I conclude that the BSOs who interacted with the appellant as he entered Canada on September 8, 2006 took investigative measures that were within the scope of the authority provided to them by Parliament to fill a necessary gap that previously existed in addressing the harm caused by impaired drivers crossing the border into Canada. The evidence of insobriety they were able to provide at trial in support of the charge of impaired driving was obtained as a result of reasonable steps taken and not as a result of the appellant's being compelled directly against himself, within the meaning of Milne, Orbanski or Quenneville, and was therefore admissible on the issue of impairment.

[73] For these reasons, I would dismiss the appeal.

Appeal dismissed.

@7 Notes

Note 1: Section 163.5 was the subject of minor amendments in 2001, and again in 2008, primarily to account for changes to s. 254 of the Criminal Code. Notably, s. 254 was amended in 2008 to provide officers with the express power to demand the performance of physical coordination tests: see 2001, c. 25, s. 84; 2008, c. 6, s. 59.

Note 2: It is of note that both s. 163.5 of the Customs Act and s. 48(1) of the Highway Traffic Act lack express reference to related investigative powers.