COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Guenter, 2016 ONCA 572

DATE: 20160719

DOCKET: C55574

Weiler, Tulloch and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Peter Guenter

Appellant

Solomon Friedman, for the appellant

J. Sandy Tse, for the respondent

Heard: January 18, 2016

On appeal from the conviction entered on November 25, 2011 and the sentence imposed on February 10, 2012 by Justice Douglas Rutherford of the Superior Court of Justice, sitting without a jury.

Brown J.A.:

I. OVERVIEW

[1] On the evening of December 25, 2008, the appellant’s Nissan Pathfinder ran into a Hyundai Accent on the outskirts of Ottawa, injuring three of the four occupants of the Hyundai. The appellant, Peter Guenter, was charged with several driving related offences. The charges were either dismissed or stayed, save for three counts of impaired driving causing bodily harm that are the subject of this appeal as to conviction.

[2] The appellant raises two main grounds of appeal and several related subsidiary grounds.

[3] The first ground of appeal contends the trial judge erred in allowing statements made by the appellant at the collision scene to be used as evidence against him on the substantive charges. The appellant submits the utterances he made could not be used as evidence against him because they were statutorily-compelled statements made pursuant to the requirement to make an accident report in s. 199(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, or were made when the appellant was detained, but had not yet exercised his right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms.

[4] As his second main ground of appeal, the appellant submits the trial judge erred in admitting the results of breath samples taken from him at the police station. No breath sample demand was made of the appellant at the collision scene. The trial judge found that a demand made later at the police station by the breathalyzer technician satisfied the requirement of s. 254(3) of the Criminal Code that a demand be made “as soon as practicable”. The appellant raises the issue of whether to comply with s. 254(3) of the Criminal Code the police officer at the scene of the accident must make a demand for a breath sample or whether the demand may be made by a breath technician at the police station.

[5] I would dismiss the appeal. In my view, the trial judge properly admitted into evidence the statements the appellant made to the police at the scene of the collision. The demand for his breath samples complied with s. 254(3) of the Criminal Code and, in any event, the trial judge made no error in admitting the test results under s. 24(2) of the Charter.

II. THE EVENTS AT THE ACCIDENT SCENE

[6] In this section, I will set out the evidence about what happened at the scene of the accident relevant to the first ground of appeal. In a later section, I will describe the events at the police station relevant to the second ground.

A. The Events Leading Up To the Appellant’s Arrest

[7] A motorist following the Hyundai reported the collision. A fire crew reached the scene first and looked after those in the Hyundai. Two police cruisers arrived shortly thereafter: the first containing Constables Steven Mathieu and Michael Braga; the second, Constable Alexia Campoli.

[8] Seeing the fire crew treating the occupants of the Hyundai, Cst. Mathieu approached the Pathfinder. He saw the appellant standing just outside the driver’s side of the vehicle. He asked the appellant if he had any injuries. The appellant replied, “No, I’m not hurt. I’m not, but my heart hurts”. Cst. Mathieu asked if the appellant had any physical injuries. He answered, “No. My heart hurts because I feel bad for hitting this vehicle with a family in it.” Cst. Mathieu then asked the appellant if he was the driver of the Pathfinder, to which the appellant replied, “Yes.”

[9] Upon Cst. Campoli’s arrival, Cst. Mathieu told her that the appellant was the driver of the Pathfinder, was possibly impaired by alcohol, and directed her to stay with the appellant. At this point, Cst. Mathieu went over to the Hyundai and had no further contact with the appellant. Cst. Mathieu testified that the appellant was not under detention or arrest during their exchanges.

[10] Cst. Braga did not hear the conversation between Cst. Mathieu and the appellant. Cst. Mathieu approached Cst. Braga and told him to take the appellant to their police cruiser to obtain his licence, insurance and registration information, which he did. Cst. Mathieu made no suggestion to Cst. Braga that the appellant might have been impaired. Cst. Braga recalled Cst. Mathieu saying something to the effect of, “don’t let him out of your sight, keep an eye on him.”

[11] When they reached the cruiser, Cst. Braga asked the appellant for his licence and vehicle documents. The appellant produced them. Cst. Braga asked the appellant several times for his telephone number; Cst. Braga was not able to understand the appellant’s mumbled response. Cst. Braga observed the appellant had his hand on his chest, so he asked the appellant if he needed medical attention. The appellant said no, it was just that his heart was hurting.

[12] Cst. Campoli came over to the cruiser as the appellant was producing his licence. Seeing the appellant pat his jean jacket pocket, Cst. Campoli asked what he was looking for. His heart, the appellant said.

[13] Cst. Campoli smelled alcohol on the appellant’s breath, and she told him he was under arrest for impaired driving. About four minutes had elapsed from the time the officers arrived on the scene until the appellant’s arrest.

B. The Events Following the Appellant’s Arrest

[14] Cst. Braga helped restrain the appellant’s hands behind his back. At that point, Cst. Braga heard the appellant say, “I fucked up.” Cst. Braga testified that the appellant’s utterance was spontaneous and not made in response to any question put to him. Cst. Braga did not respond to the appellant’s utterance. The appellant then began to cry and bang his head on the hood of the cruiser. Cst. Braga attempted to straighten him up.

[15] Cst. Campoli testified that after she had handcuffed the appellant, he asked her several times to shoot him, once stating that he would rather be dead. He asked how the babies were, and he stated that he was just at a Christmas party and had a few beers. Cst. Campoli described the appellant’s utterances as “all over the place”. Cst. Campoli stated she did nothing to acknowledge what the appellant was saying.

[16] During the ensuing search incident to arrest, Cst. Braga heard the appellant say: “drank too much J.D.”; “I smoked weed”; “a couple of beers, it’s Christmas”. Cst. Braga was not asking any questions of the appellant at this point of time; he was telling the appellant to focus on him, not on Cst. Campoli who was conducting the search.

[17] As Cst. Braga helped to escort the appellant to Cst. Campoli’s cruiser and place him inside it, he heard the appellant say, “I lost a couple of sisters because of this.” Cst. Braga testified that the appellant was very co-operative during the arrest, but was emotionally upset and crying excessively.

[18] Once the appellant was in her cruiser, Cst. Campoli read him his right to counsel and a caution. The appellant acknowledged that he understood both. He said he had his lawyer’s card in his wallet. Cst. Campoli indicated he could contact his lawyer once they reached the station.

[19] Cst. Campoli then let the appellant out of the vehicle in order to be assessed by paramedics. According to Cst. Campoli, at that point the appellant said, “I made a mistake. I was at a Christmas party. He shouldn’t have turned in front of me.” Cst. Campoli stated that the appellant was “just blurting things out.”

[20] Cst. Campoli also testified that after the appellant left the paramedics and was back in the police cruiser, he said, “Shoot me in the back of the head.” She asked him to qualify what he meant. The appellant then made the statement: “Shoot George too. He ran into the bush.” Cst. Campoli asked, “Who’s George?” The appellant replied: “I should have never let him drive.” The police searched for footprints in the snow surrounding the scene of the accident, but did not find any. The trial judge rejected the appellant’s testimony that someone called George had been driving the Pathfinder.

[21] Following the appellant’s medical assessment, Cst. Campoli drove him to the central police station. The trip took about 11 minutes. Cst. Campoli testified that there was no conversation during the transport.

III. FIRST GROUND OF APPEAL: DID THE TRIAL JUDGE ERR IN ADMITTING STATEMENTS MADE BY THE APPELLANT AT THE COLLISION SCENE?

A. Overview of the issues

[22] The appellant submits the trial judge erred in admitting the statements he made to the police officers at the collision scene for two main reasons:

(i) His statement to Cst. Mathieu that he was the driver of the Pathfinder was not made voluntarily because he was under a legal obligation pursuant to the Highway Traffic Act to report the accident and respond to Cst. Mathieu’s questions; and

(ii) He was detained at the time he made his statements to Csts. Mathieu, Braga, and Campoli, so his statements were not admissible against him on the substantive charges in accordance with the principle that evidence obtained by the compelled direct participation of a motorist in roadside tests can only be used to confirm or reject an officer’s suspicion that the motorist might be impaired or over the legal limit: R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3; R. v. Milne (1996), 1996 CanLII 508 (ON CA), 28 O.R. (3d) 577 (C.A.); R. v. Coutts (1999), 1999 CanLII 3742 (ON CA), 45 O.R. (3d) 288 (C.A.); and R. v. Rivera, 2011 ONCA 225, (2011), 104 O.R. (3d) 561 (“the Milne/Orbanski line of cases”).

[23] The respondent submits: (i) the appellant’s statement to Cst. Mathieu was made voluntarily; (ii) the appellant was not detained until his arrest by Cst. Campoli; and (iii) the principles derived from the Milne/Orbanski line of cases are not applicable to the facts of this case.

[24] I will first consider whether the appellant’s statement to Cst. Mathieu was compelled by statute, and then deal with the appellant’s submissions based on his detention.

B. First Issue: Was the appellant’s statement to Cst. Mathieu that he was the Pathfinder’s driver inadmissible because it was compelled by te [Highway Traffic Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html)?

[25] Before the trial judge, the appellant submitted that his statement to Cst. Mathieu that he was the driver of the Pathfinder was not admissible on the issue of who was driving the vehicle because it was a statement compelled by s. 199(1) of the Highway Traffic Act which provides:

Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3).

[26] The appellant argued that because the statement was legally compelled, it could only be used on the issue of whether the officer had reasonable and probable grounds to arrest him and make a breath demand in accordance with principles in R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417. It was not admissible as evidence on the offences charged and the trial judge erred in admitting it.

[27] In White, at para. 73, the Supreme Court of Canada considered the application of the principle against self-incrimination under s. 7 of the Charter to accident reports made under the compulsion of a provision similar to s. 199(1) of the Highway Traffic Act. The court held that such statements could not be used to incriminate the declarant in subsequent criminal proceedings.

[28] According to White, the test for compulsion under a provision like s. 199(1) of the Highway Traffic Act is “whether, at the time that the accident was reported by the driver, the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given”: para. 75. However, if a declarant gives an accident report freely, without believing or being influenced by the fact that he or she is required by law to do so, then it cannot be said that the statute is the cause of the declarant’s statements: para. 76. The onus lies on the accused to establish, on the balance of probabilities, that the statement was compelled: para. 81.

[29] In his ruling on the voir dire and Charter application (the “Ruling”), the trial judge stated that “[t]he exchange took place in the earliest stages of Cst. Mathieu’s efforts to investigate the accident.” He concluded that “there is nothing in the evidence to suggest that in confirming to Cst. Mathieu that he was the driver of the Pathfinder, Mr. Guenter did so under any subjective belief that he was compelled to do so by the terms of the Highway Traffic Act.”

[30] The trial judge was correct. In the present case, the appellant did not apply at trial under ss. 7, 9 or 10 of the Charter to exclude any of his collision scene statements. Nor did he place before the court on the Charter application (or, indeed, at the trial) any evidence that the reason he told Cst. Mathieu he was the driver was because of an honest and reasonably held belief that he was required by law to report the accident to the officer. Accordingly, this ground of appeal must be dismissed.

C. Second Issue: Did the trial judge err in admitting statements made by the appellant at the collision scene on the substantive charges because the appellant was detained when he made them?

[31] The appellant further submits that the case law precludes the admission of his roadside statements to the police as evidence on the substantive charges against him because: (i) he was detained from the time of his initial contact with Cst. Mathieu, with his detention continuing through his interactions with Csts. Braga and Campoli until the time of his arrest: and (ii) the principle stated in the Milne/Orbanski line of cases precludes the admission of such statements by a detained motorist as evidence on the substantive charges.

[32] Before examining each submission, it is important to observe that on this appeal the appellant argued the issue of the admissibility of his statements to the police at the scene of the collision in a much different fashion than he did below. At trial, the appellant did not bring a Charter application to exclude his roadside statements on the basis of a violation of his rights under ss. 7, 9 or 10. Instead, he argued the statements were not made voluntarily.

C.1 Was the appellant detained at the time of his interaction with Csts. Mathieu and Braga?

The Trial Judge’s Reasons

[33] In his Ruling, the trial judge found that most of the utterances made by the appellant, were admissible because “[t]hey were spontaneous, were not coerced in any way, were not in response to questioning, and were simply things Mr. Guenter offered freely.”

[34] At the request of defence counsel, the trial judge issued a Supplementary Ruling dealing with two points: (i) whether the appellant’s statement that he was the driver was voluntary; and (ii) if it was, whether the only use the Crown could make of the statement was to establish the officer’s reasonable and probable grounds for an arrest and breath sample demand, but not to prove the identity of the vehicle’s driver.

[35] In his Supplementary Ruling, the trial judge stated, in part, that there was no Charter issue concerning the appellant’s response to Cst. Mathieu because there was no detention at that point. The trial judge clarified: (i) the appellant’s response to Cst. Mathieu that he was the driver of the Pathfinder was made voluntarily; and (ii) such evidence was admissible at trial to prove that he was the driver, as well as to provide reasonable and probable grounds for the arrest and demand for breath samples.

[36] The appellant testified in his defence. The Crown cross-examined the appellant on his roadside statements to the police. The trial judge relied, in part, on the appellant’s statement to Cst. Mathieu that he was the driver of the Pathfinder in concluding that there was no room for any doubt that the appellant was driving that vehicle at the time of the collision.

The governing principles

[37] A detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44. The appellant’s submissions focus on the two conditions under which a psychological detention can arise: (i) where the individual has a legal obligation to comply with a restrictive request or demand; or (ii) where a reasonable person would conclude by reason of the state conduct that he had no choice but to comply.

[38] I have already considered and rejected the appellant’s submission that his statement to Cst. Mathieu was compelled by statute. In respect of the second condition regarding a detention, the appellant argues that in all his dealings with Csts. Mathieu and Braga he was subject to a psychological detention because a reasonable person would conclude, by reason of the state conduct, that he had no choice but to comply with the directions of the police.

[39] In his Supplementary Ruling, the trial judge found that the appellant was not detained when he dealt with Cst. Mathieu. In light of the way in which defence counsel argued the issue below, the trial judge made no specific finding about whether the appellant was detained during his interactions with Cst. Braga.

[40] The trial judge’s finding that Cst. Mathieu had not detained the appellant must be reviewed within the legal framework established by Grant and R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. Not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter: Suberu, at para. 3. Even when an encounter clearly results in a detention, such as when a person ultimately is arrested and taken into police custody, it cannot simply be assumed that there was a detention from the beginning of the interaction: Suberu, at para. 5. Deference is owed to the trial judge’s finding as to whether an accused was detained: Grant, at para. 43.

[41] In the present case, the encounter between the appellant and the police took place during the initial stages of an accident investigation by officers who had just arrived on the scene and were trying to sort things out. In Grant, the court observed, at para. 38:

In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation.

[42] The facts in Suberu illustrate how interactions between an individual and the police move along a spectrum before reaching the point of detention. In Suberu, officers had been called to an LCBO to investigate possible credit card fraud. As an officer entered the LCBO, he was passed by Mr. Suberu leaving the store who said words to the effect of, “[he] did this, not me, so I guess I can go.” The officer followed Mr. Suberu to his van, started some questioning, asked for Mr. Suberu’s ID and the van’s vehicle documentation and, upon seeing some LCBO bags in the van, arrested Mr. Suberu.

[43] The Supreme Court of Canada held that Mr. Suberu was not detained until the moment of his arrest. The court viewed the encounter with the police officer prior to Mr. Suberu’s arrest as “of a preliminary or exploratory nature,” where the officer was attempting “to orient himself to the situation [that] was unfolding in front of him,” was in the “process of sorting out the situation,” and was “engaged in a general inquiry and had not yet zeroed in on the individual as someone whose movements must be controlled”: at paras. 31-32.

Application of the principles

[44] The evidence in the present case amply supported the trial judge’s finding that the appellant was not detained at the point of his interaction with Cst. Mathieu because “Constable Mathieu was focusing on the need to deal with injured persons” and the “exchange with Constable Mathieu was all preliminary to any focus on possible impaired driving.” The evidence showed the appellant’s encounter with Cst. Mathieu occurred when the officer was attempting to orient himself to an accident scene at which he had just arrived, trying to sort things out, and was engaged in a general inquiry.

[45] The appellant argues that he was detained by Cst. Braga when he was asked to accompany that officer to a police cruiser and produce his driving documents. In argument below, the Crown had conceded that the moments leading up to the appellant’s arrest were a time in which a detention could have occurred, but it just seemed “to be such a fluid dynamic that one moment Mr. Guenter [identify]ing himself and being asked for a phone number and less than a couple of minutes later he’s in handcuffs.”

[46] I agree that it was a fluid and dynamic situation, where the events passed rapidly. In my view, the encounter between Cst. Braga and the appellant bears a striking resemblance to the sequence of events between Mr. Suberu and the police officer prior to his arrest, with the interaction more in the nature of “preliminary questioning”, than a detention: Suberu, at paras. 33 and 35.

[47] I conclude that the statements made by the appellant to Cst. Mathieu and Cst. Braga were made at a time when the appellant was not detained.

C.2 Does the principle in the Milne/Orbanski line of cases apply and preclude the use of the appellant’s statements on the substantive charges?

The governing principles: The Milne/Orbanski line of cases

[48] The Milne/Orbanski line of cases considered the use that can be made at trial of evidence obtained through roadside sobriety tests, such as physical co-ordination tests and asking questions of detained motorists about their earlier alcohol consumption. In each of the cases, a motorist either had been pulled over by the police, or required to participate in a R.I.D.E. program.

[49] Moldaver J.A. (as he then was) wrote the decisions of this court in Milne and Coutts. In those cases, he stated that “where motorists are compelled to submit to sobriety and roadside testing without being advised of their s.10(b) Charter rights, the Crown cannot use the test results at trial to incriminate the motorist on a charge of impaired driving or driving over 80”: Coutts, at para. 17. The use of the test results is limited to justifying a demand for a breath sample under s. 254 of the Criminal Code: Milne, at para. 47. In Milne, Moldaver J.A. clarified, at para. 40:

[T]his 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... [Emphasis added.]

[50] In Orbanski, the Supreme Court of Canada upheld, under s. 1 of the Charter, the limitations on a person’s s. 10(b) right to counsel resulting from the use of roadside sobriety screening measures. The court held the evidence obtained as a result of the motorist’s participation in the screening measures without access to counsel could only be used as an investigative tool to confirm or reject the officer’s suspicion that the driver might be impaired; it could not be used as direct evidence to incriminate the driver: at paras. 58-60. The court described the evidence subject to such limited use at para. 58 of its reasons: “As stated in Milne, this limitation applies only to evidence obtained from the compelled direct participation by the motorist in roadside tests and, in our case, police questioning about alcohol consumption” (emphasis added).

[51] Finally, the decision of this court in Rivera applied the Milne/Orbanski limitation of use principle in the context of a motorist who had been pulled over during a R.I.D.E. program and ultimately charged with refusal to comply with a demand for a breath sample without reasonable excuse under s. 254(5) of the Criminal Code. During the motorist’s 21 failed attempts to provide a breath sample, she made numerous statements to the officer. At trial, the Crown used those statements to impeach the motorist’s credibility and to discredit the factual foundation upon which the accused’s experts had opined that her failure to blow might be the result of a panic attack.

[52] The motorist’s conviction was set aside by this court because many of the statements made by the motorist could not be characterized as evidence of the actus reus of refusing to blow. Instead, the Crown had used them to impeach the credibility of the accused. This court held, at para. 107 of Rivera, that this was not a permissible use of the evidence, stating:

In my view, the appellant's roadside statements were not admissible as part of the Crown's case for incrimination or impeachment purposes. I agree with Molloy J.'s conclusion in Morrison that roadside statements, whether made in direct response to an inquiry by an officer, or made in the context of the officer's overall inquiry while the motorist is detained, are not admissible for purposes of attacking the accused's credibility at a trial for failure or refusal to provide a breath sample. The admission of any roadside utterances as part of the Crown's case is forbidden other than on the basis of establishing grounds for the demand or the actus reus of the offence.

[53] The appellant submits that in Rivera this court expanded the Milne/Orbanski limitation of use protections to any statement made “at the roadside”. I disagree. Rivera represented an application of the Milne/Orbanski principle to the specific facts of that case, not an expansion of the principle to persons who are not detained.

Application of the principles

[54] In his Supplementary Ruling, the trial judge dealt with the Milne/Orbanski limited use principle, holding that “[t]here was no detention at the point Cst. Mathieu was focusing on the need to deal with injured persons and no Charter [issue] has been raised.” In the trial judge’s view, “[t]he facts at that point are quite distinguishable from those in the Orbanski line of cases, in which screening evidence of alcohol consumption and possible impairment is central. The exchange with Cst. Mathieu was all preliminary to any focus on possible impaired driving.”

[55] The context of the Milne/Orbanski line of cases differed significantly from that of the present one. In those cases, the police had pulled over the motorist to investigate possible impairment and required the motorist to participate in a variety of roadside sobriety tests and answer questions about alcohol consumption. By contrast, in the present case the contact between the police and the appellant arose during the initial stages of an accident investigation.

Statements made to Cst. Mathieu

[56] The exchange back and forth between Cst. Mathieu and the appellant took place while Cst. Mathieu was trying to sort things out at the accident scene and when the appellant was not detained. Although the appellant’s statements were made in response to inquiries by Cst. Mathieu about whether he was injured and whether he was the driver of the Pathfinder, those questions were not posed to the appellant as part of any compelled direct participation in roadside testing. The questions were posed at the outset of an investigation into a recent accident by a newly arrived officer who was trying to sort things out. The trial judge correctly concluded that the Milne/Orbanski line of cases did not apply to the statements made by the appellant to Cst. Mathieu and, as a result, the statements were admissible into evidence on the offences charged.

Statements made to Cst. Braga

[57] A similar result applies to the statements the appellant made to Cst. Braga. As I found above, the evidence supports a finding that the appellant was not detained when he uttered his statements to Cst. Braga, so the Milne/Orbanski limitation of use principle does not apply to them.

Statements made to Cst. Campoli

[58] Cst. Campoli arrested the appellant at about 7:36 p.m., placed him in the back of her cruiser, and then read him his rights to counsel and caution at around 7:51 p.m. During that 15 minute period, the appellant made numerous, spontaneous utterances, including “he shouldn’t have turned in front of me.”

[59] The appellant was detained at the time he made those statements. But, his statements were not made in response to inquiries from a police officer. Cst. Campoli testified that the appellant’s utterances were “all over the place” and he was “just blurting things out.” The trial judge admitted those utterances as part of the Crown’s case, holding that “[t]hey were spontaneous, were not coerced in any way, were not in response to questioning, and were simply things Mr. Guenter offered freely.”

[60] The trial judge did not err in admitting those statements for two reasons. First, it must be recalled that the appellant did not bring an application at trial alleging an infringement of his s. 10(b) rights.

[61] Second, one of the duties imposed by s. 10(b) on the police is the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at pp.1242-43; Suberu, at para. 38. Although no s. 10(b) application was before the trial judge, he directly addressed the circumstances in which the appellant made his post-arrest utterances. He held that the statements were not made in response to police questioning, but were voluntary, unconnected utterances by the appellant, “sort of all over the place”. The record amply supports those findings of fact.

[62] The evidence discloses that the appellant spoke to Cst. Campoli because he wished to speak, not because he was asked to do so. Cst. Campoli’s evidence that the appellant understood the reading of his rights to counsel and the caution was not questioned at trial. No allegation was made at trial that the police breached the appellant’s s. 10(b) rights. In those circumstances, I see no error in the trial judge admitting those statements into evidence: R. v. Bennight, 2012 BCCA 190, 320 B.C.A.C. 195, at paras. 87-89; R. v. Jackson, 2005 ABCA 430, 376 A.R. 99, at para. 27.

D. Conclusion

[63] For the foregoing reasons, I conclude the trial judge did not err in admitting into evidence the statements made by the appellant to Csts. Mathieu, Braga and Campoli. I would not give effect to this ground of appeal.

IV. SECOND GROUND OF APPEAL: DID THE TRIAL JUDGE ERR IN FINDING THAT BREATH SAMPLES WERE TAKEN FROM THE APPELLANT PURSUANT TO A LAWFUL DEMAND?

A. The Evidence

[64] Cst. Campoli did not have a roadside screening device with her on the evening of the collision. She testified that she did not make efforts to get one from another officer because the appellant was showing obvious signs of impairment. At the scene of the collision, Cst. Campoli did not make any demand for a breath sample or inform the appellant that such a sample would be taken.

[65] Cst. Campoli drove the appellant to the police station. Upon their arrival, the appellant was searched. As the search was conducted, Cst. Campoli talked to Cst. James Casey, a qualified breathalyzer technician. Cst. Casey asked Cst. Campoli if she had read the appellant a breathalyzer test demand. She informed Cst. Casey that she had not. Cst. Casey told her to read one before the appellant called his lawyer. She did so once the appellant was placed in a holding cell.

[66] Cst. Campoli testified she “completely forgot” to read a demand to the appellant at the scene of the collision. She explained the scene was horrific, she was interrupted by paramedics when reading the appellant his rights and caution, and that interruption may have broken her train of thought.

[67] Cst. Campoli arrested the appellant for impaired driving at 7:36 p.m., and read him the right to counsel and caution at 7:51 p.m. She did not read him a breath sample demand until 8:36 p.m. The appellant then spoke with his lawyer until 9:04 p.m.

[68] Cst. Campoli informed the breath technician, Cst. Casey, of her grounds for arresting the appellant, specifically: the appellant had been involved in a traffic accident; she observed the odour of alcohol on his breath; she observed he was unsteady on his feet, his speech was slurred, and he was unable to keep his head up. Cst. Casey testified that those were sufficient grounds for him to proceed with the testing procedure. He also indicated that it was his standard practice to review with the arresting officer his or her grounds for arrest.

[69] Cst. Campoli then turned the appellant over to Cst. Casey for testing. Cst. Casey read the appellant his rights to counsel, caution to a charged person, secondary caution to a charged person, and the breathalyzer test demand. After reading each element, Cst. Casey asked the appellant whether he understood it; the appellant said he did.

[70] Cst. Casey administered two breath tests to the appellant at 9:15 and 9:35 p.m. The first sample recorded an alcohol/blood reading of 172 mg/100 ml; the second, 170 mg/100 ml.

B. The Trial Judge’s Reasons

[71] At trial, the appellant submitted that the demand for his breath sample was not made “as soon as practicable” as required by s. 254(3)(a) of the Criminal Code. As a result, the demand was unlawful, and the taking of his breath samples was a violation of his s. 8 Charter right to be secure against unreasonable search or seizure.

[72] Section 254(3) of the Criminal Code provides, in part:

254.(3) 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 section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood…and

(b) if necessary, to accompany the peace officer for that purpose.

[73] The trial judge held that “in the unfolding events” at the collision scene, Cst. Campoli “simply forgot to make the demand,” an omission he described as “one of simple error, inadvertence, and nothing more.” He also held that the breath sample demand made by Cst. Campoli at the police station was not made “as soon as practicable” because “[t]here had been plenty of opportunity to make the demand well before that, had she thought to do so.”

[74] However, the trial judge accepted the Crown’s argument that since the breathalyzer technician, Cst. Casey, had made a demand as soon as practicable after he had formed proper grounds, the requirements of s. 254(3) were met, and the taking of the breath samples was lawful. In reaching that conclusion, the trial judge reviewed the decisions of the Superior Court of Justice in R. v. Nassier (1998), 36 M.V.R. (3d) 117, R. v. Dhaliwal (2005), 16 M.V.R. (5th) 165, and R. v. Chilton, [2009] O.J. No. 3655. The trial judge then concluded:

In the circumstances of the case before me and in light of these previous decisions in this Court, I see no compelling reasons not to find that Cst. Casey’s demand that Mr. Guenter provide breath samples constituted lawful demands and suitable preconditions for the taking of the breath samples on which both the certificate tendered and the toxicologist’s opinion evidence are based. The breath samples were lawfully taken and the evidence flowing from their analysis is admissible.

C. Positions of the Parties

[75] The appellant submits the trial judge erred in finding that the demand made by the breathalyzer technician, over an hour after Cst. Campoli had arrested him, satisfied the “as soon as practicable” requirement of s. 254(3). First, he argues that the trial judge erred in his statement of the law because the decisions in Nassier and Dhaliwal involved the continuing effect of a valid initial demand by the arresting officer, not the validity of a stand-alone initial demand by a breathalyzer technician. Although the Chilton case involved facts similar to those in the present case, the appellant contends Chilton was wrongly decided.

[76] Second, the appellant submits the trial judge’s conclusion was not supported by the evidence for two reasons: (i) the breath technician, Cst. Casey, recorded that the demand he was relying on was the one given by Cst. Campoli, not himself; and (ii) Cst. Casey did not testify that he had formed his own reasonable grounds to make a demand of the appellant.

[77] The respondent submits that notwithstanding the trial judge’s finding that Cst. Campoli’s demand was not made “as soon as practicable”, Cst. Casey’s demand complied with s. 254(3) because he had made the demand as soon as practicable after forming his own reasonable grounds to do so.

D. The Case Law

[78] Before analyzing the trial judge’s interpretation of the breath sample demand requirements in s. 254(3), a brief review of the case law surrounding the issue is in order.

[79] To start, the trial judge referred to the decisions in Nasseir and Dhaliwal in support of his conclusion. In my view, the appellant is correct to say that this is not a case in which there was a “continuing demand” by an investigative officer which remained operative, or on which the breath technician could rely: Nasseir, at paras. 41-42; Dhaliwal, at para. 26. In those cases, the investigating officers made valid demands at the scene. On the issue of whether the technician had obtained breath samples pursuant to a lawful demand, the courts also held that in light of the evidence of valid demands at the scene, the technicians either were acting as agents for the demanding officers or there were continuing demands: Dhaliwal, at para. 26. The courts hinted that a demand by the technician alone might satisfy s. 254(3), but neither case was decided on that point.

[80] However, there is a line of lower court cases standing for the proposition that where the arresting officer has failed to make a demand, a technician’s demand, based upon his own reasonable and probable grounds and made “as soon as practicable” after those grounds are formed, satisfies the s. 254(3) requirement. Kenkel J. summarized that jurisprudence in R. v. Inataev, 2015 ONCJ 166, [2015] O.J. No. 1561, at paras. 48-49:

In R. v. Krawcar, [2002] OJ No.2307 (SCJ) the summary conviction appeal court considered the former “forthwith or as soon as practicable” demand requirement in 254(3) and held that the section does not require the demand be made by the arresting officer. A timely demand made by the breath technician after he or she receives grounds is sufficient to comply with 254(3). The summary conviction appeal courts in R. v. Dhaliwal, R. v. Chilton and R. v. Guenter, and the trial courts in R. v. Hillis, R. v. Kyoz apply the same reasoning.

While a trial court must consider the demand by the breath technician, the court is not required as a matter of law to find the later demand sufficient. It’s open to the court to find that breath technician’s demand does not comply with 254(3). The finding is a factual one within the discretion of the trial court. See: R. v. Laws, R. v. Howe. [Citations omitted.]

[81] Chilton involved circumstances very similar to those of the present case: the arresting officer had failed to make a breath sample demand at the scene through inadvertence; the officer made a demand about 40 minutes later when turning the accused over to the technician; the technician made a demand, and then took samples. As in the present case, there was a finding that the demand made by the arresting officer at the station was not made as soon as practicable.

[82] On summary conviction appeal, MacDougall J. set aside the accused’s acquittal and directed a new trial. He found that it was open to the Crown to attempt to rely on the technician’s demand as a valid demand under s. 254(3). He held the trial judge should have considered (i) whether the technician’s demand was made on reasonable and probable grounds, and (ii) whether the demand was made as soon as practicable after the technician had formed those grounds: Chilton, at paras. 48-49.

[83] The appellant argues that Chilton, and the cases similar to it, were wrongly decided.

[84] Before turning to the analysis, I would observe that I do not necessarily agree with the line of lower court cases, summarized in Inataev above, which hold that the validity of the demand is a question of fact, as opposed to a question of mixed fact and law. However, this point was not argued before us, so it is not necessary to decide it.

E. Analysis

[85] As in all cases involving warrantless searches and seizures, the onus is on the Crown to prove, on a balance of probabilities, that the demand for the breath sample was reasonable: R. v. Haas, (2005), 2005 CanLII 26440 (ON CA), 76 O.R. (3d) 737 (C.A.), at paras. 24 and 31. A search is reasonable if, in part, it is authorized by law.

[86] To determine whether Cst. Casey’s taking of breath samples from the appellant was authorized by law requires answering the following question: Where the trial judge has found that a breath sample demand by the investigating or arresting officer was not made “as soon as practicable”, can a separate demand by a breathalyzer technician satisfy the requirement of s. 254(3) that a demand be “made as soon as practicable” by “a peace officer [who] has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol”?

[87] As the Supreme Court of Canada observed in R. v. Deruelle, 1992 CanLII 73 (SCC), [1992] 2 S.C.R. 663, at p. 677, “s. 254(3) is not a model of clarity”. The lack of clarity reveals itself in the context of the present case. On the one hand, the term “peace officer” used in s. 254(3) certainly includes both an investigating/arresting officer, as well as a breathalyzer technician. On the other hand, s. 254(3)(a) requires a person to provide a breath sample as soon as practicable after a demand is made, and s. 254(3)(b) requires the person, “if necessary, to accompany the peace officer for that purpose”. That requirement reflects the general practice that the demand for a breath sample is made at the scene of a stop or accident, and the person then accompanies the officer to the police station to provide the breath sample.

[88] Nevertheless, the interpretation of s. 254(3) adopted in Deruelle at p. 671 is clear: “s. 254(3) should be interpreted as requiring only that a peace officer form a belief that an impaired driving offence has been committed by the suspect within the past [three] hours. A demand made pursuant to that belief must follow …as soon as practicable, but this may fall outside the [three]-hour limit.”

[89] Given the close inter-relationship between the operation of s. 254(3) and the need for officers to ensure that a detained person can exercise his s. 10(b) rights in a meaningful way, linking the making of the demand to the timing of the detention has a certain practical attractiveness. But that is not how s. 254(3) reads. As this court held in R. v. Wylie, 2013 ONCA 673, 51 M.V.R. (6th) 1, at para. 10: “All that s. 254(3) requires is that a valid breath demand is made by a peace officer with reasonable grounds to do so and that the demand is made as soon as practicable. There is nothing in the Criminal Code or in the jurisprudence that supports the proposition that the Crown must prove the ‘who, what, where and when’ of the demand.” Moreover, the larger objective of the Criminal Code’s breathalyzer scheme of forcing prompt police investigation was held to be promoted by the three hour limit in s. 254(3): Deruelle, at p. 672.

[90] As applied to the present case, the interpretation of s. 254(3) in Deruelle would permit the trial judge to find that a demand by the breathalyzer technician, Cst. Casey, would satisfy the requirements of s. 254(3) provided he had formed reasonable grounds within the three-hour time limit and made a demand “as soon as practicable” thereafter. Accordingly, the issue on this appeal then becomes whether the trial judge erred in finding that Cst. Casey’s demand that the appellant provide breath samples constituted a lawful s. 254(3) demand.

[91] The appellant submits Cst. Casey never testified that he relied on his reasonable grounds to make his demand, so s. 254(3) was not satisfied.

[92] I do not accept this submission. The trial judge understood Cst. Casey’s testimony to be that following his briefing by Cst. Campoli, he agreed there had been reasonable and probable grounds to arrest the appellant for an offence under s. 253. The trial judge found that the suitable preconditions then existed for the taking of the breath samples. The following evidence given by Cst. Casey during his examination-in-chief supported that finding by the trial judge:

Q: Prior to that, did you receive any information about the reasons why Mr. Guenter was in police custody?

A: Yes. I conducted a brief interview with Constable Campoli…

Q: Okay.

A: …and that was at 9:07 p.m., and she relayed to me her grounds for arrest.

Q: Did you make note of those grounds?

A: Yes, I did. She advised me that Mr. Guenter was involved in a traffic accident; that she observed the odour of alcohol on his breath; that she observed him to be unsteady on his feet. She observed that he had slurred speech, and she also observed that he was unable to keep his head up.

Q: Okay.

A: That – that was sufficient grounds for me to proceed with the testing procedure.

Q: Okay. And when you say “grounds”, can you elaborate a bit what you mean by that word?

A: “Grounds”. Grounds for the arrest – is it reasonable to suspect that a crime has been committed, and in this case, drunk driving.

The Court: …[A]ll the things that you mentioned, if you can just repeat what you said.

Q: Yes, Your Honour. There was a traffic accident; that Officer Campoli observed the odour of alcohol on the breath of Mr. Guenter.

The Court: Yes.

A: That he was unsteady on his feet; that he had slurred speech; and he was unable to keep his had up.

The Court: Now, when somebody brings in a candidate for breath samples to you, do you review – or you always review what they say were their grounds for arresting a person to bring them in?

A: Yes, I do.

The Court: [D]o you have to agree that what you are told, in your view, constitutes reasonable and probable grounds?

A: I should satisfy myself that if I’m going to continue the arrest, that I should – I should think it reasonable at that point in time…

The Court: That’s…

A: …to do so.

The Court: …part of your practice?

A: Yes.

[93] There is no dispute that Cst. Casey made his demand immediately following his formation of reasonable grounds to do so. Accordingly, his demand was made “as soon as practicable” in accordance with s. 254(3).

[94] It follows that the trial judge did not err in concluding that “the breath samples were lawfully taken and the evidence flowing from their analysis is admissible”.

V. IF THE BREATH SAMPLES WERE NOT TAKEN PURSUANT TO A LAWFUL DEMAND, DID THE TRIAL JUDGE ERR IN FAILING TO EXCLUDE THE EVIDENCE OF THE BREATH SAMPLES UNDER S. 24(2) OF THE CHARTER?

[95] Having found that there was no breach of s. 8, strictly speaking it is not necessary to consider this ground of appeal. However, in my view, it would not succeed in any event.

[96] When reviewing a trial judge’s s. 24(2) determination of what would bring the administration of justice into disrepute having regard to all of the circumstances, considerable deference is owed on appellate review to the trial judge’s determination where he or she has considered the proper factors and has not made any unreasonable finding: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44. However, where the relevant factors have been overlooked or disregarded, a fresh Grant analysis is both necessary and appropriate: R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 82.

[97] The trial judge conducted his s. 24(2) analysis in accordance with the principles set down in Grant. He concluded that “[i]t would be inappropriate to exclude the highly relevant evidence of blood/alcohol content in Mr. Guenter’s system even if it should be ruled that it was obtained in breach of his Charter rights. The nature of any infringement and the impact on his protected rights do not, in my view, justify the impact of such a remedy.”

[98] I see no basis to interfere with the trial judge’s conclusion. He applied the correct legal test. Assuming there was a breach of the appellant’s rights, it was not serious. The record amply supported the trial judge’s finding that Cst. Campoli’s failure to make a demand as soon as practicable was an inadvertent, simple error “and nothing more”. The collection of the breath samples amounted to no more than a minimal intrusion upon the appellant’s privacy, bodily integrity and human dignity: Grant, at para. 111. Finally, the breath sample results were reliable and highly probative evidence, important to the prosecution’s case. The trial judge considered the proper factors and his findings were reasonable; his determination that the administration of justice would not be brought into disrepute by the admission of the breathalyzer evidence is entitled to deference.

VII. DISPOSITION

[99] For the reasons set out above, I would dismiss the appeal.

Released: “KMW” (July 19, 2016}

“David Brown J.A.”

“I agree K.M. Weiler J.A.”

“I agree M. Tulloch J.A.”