COURT FILE No.: Scarborough 323569

DATE: 2012·02·01

Citation: R. v. Deslandes, 2012 ONCJ 47

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

CHRISTOPHER DESLANDES

Before Justice S.E. Marin

Heard on January 5, 2012.

Reasons for Judgment released on February 1, 2012.

Eadit Rokach ............................................................................................................. for the Crown

Alan Sobcuff ........................................................................ for the accused Christopher Deslandes

MARIN J.:

[1] On May 8, 2010, Christopher Deslandes was stopped for traffic infractions on the shoulder of the express lanes of the 401 just past the Don Valley Parkway by Sergeant Stapleton. The officer spoke with Mr. Deslandes and detected a mild odour of alcohol emanating from the car. After this conversation, Sgt. Stapleton determined that the location of the stop and Mr. Deslandes’ behaviour raised concerns for officer and public safety. The sergeant testified that before reaching any opinion regarding the presence of alcohol in Mr. Deslandes’ body or his sobriety, he ceased further investigation and called for backup. He requested an approved screening device (ASD) be brought to the scene. Constables Mahoney and Christodoulou arrived on scene five minutes after leaving 42 Division.

[2] After speaking with Mr. Deslandes, Constable Mahoney conferred with Sgt. Stapleton and confirmed that she also smelled the odour of alcohol. Sgt. Stapleton made the ASD demand and escorted Mr. Deslandes to Constable Mahoney’s scout car where the device was. Mr. Deslandes did not provide a suitable sample and in the opinion of Constable Mahoney, he displayed additional signs of impairment. Prior to obtaining any reading on the ASD, she arrested Mr. Deslandes on a charge of impaired driving, gave him his rights to counsel and a caution and made an Intoxilyzer demand. Mr. Deslandes was taken to the nearest breath testing facility where he complied with the demand and provided two suitable samples after speaking in private with duty counsel. The test results were two truncated readings of 130 mg. of alcohol per 100 ml. of blood. Mr. Deslandes was then charged with driving ‘over 80’. He was served with documents and released from the station.

[3] At trial, Mr. Deslandes brought a Charter application alleging breaches of sections 7, 8, 9, 10(a) and 10(b). He seeks a stay of the charge of impaired driving under s. 24(1) and the exclusion of all evidence under s. 24(2) of the Charter, including the observations of the police officers with respect to impairment and the breath test results in relation to both charges. Mr. Deslandes alleges that he was arbitrarily detained at the roadside for approximately thirty minutes without being advised of the reasons for his detention and without being given his rights to counsel. In addition, he contends that Sgt. Stapleton lacked the requisite reasonable suspicion to make the ASD demand and he failed to make it “forthwith”. Finally, he submits that Constable Mahoney lacked the requisite reasonable and probable grounds to arrest him on a charge of impaired driving and to make a valid Intoxilyzer demand. Both counsel agreed to a blended hearing of the Charter and trial issues.

[4] It is necessary to review the evidence in some detail to provide a context for an analysis of the Charter and trial issues.

[5] On the night of May 8, 2010, Sergeant Brad Stapleton was in uniform and alone in a marked scout car driving westbound in the middle of the three collector lanes on the 401 Highway. He had been asked to attend Scarborough General Hospital to assist with a complaint involving a stabbing. While en route to the hospital, at 9:25 p.m., a green Mercury Sable passed him in the left passing lane. This vehicle was travelling at approximately 130 kph. and its interior lights were on. Sgt. Stapleton increased his speed and pulled alongside the car with the intention of gesturing to the driver to slow down when he acknowledged him. He drove for approximately one minute beside the car but the driver did not look over or slow down. Sgt. Stapleton slowed down, dropped behind the car and obtained the plate number. According to his speedometer, the car was travelling at speeds thirty to forty kilometres over the speed limit. The car changed lanes a number of times to pass other vehicles. Some of the lane changes were signalled and some were not. The car did not interfere with other vehicles as it proceeded. Sgt. Stapleton followed the car for two minutes in and out of traffic, waiting for the driver to acknowledge his presence and slow down. The driver did not do so.

[6] At Kennedy, the car moved from the collector lanes into the express lanes. Sgt. Stapleton decided to stop the car. He turned on his emergency lights and sounded his siren. There was no reaction on the part of the driver until the siren was sounded two to three more times. The car made a safe stop on the narrow north shoulder of the express lanes just past the Don Valley Parkway. A steel guardrail separated the express and collector lanes of traffic. Approximately ten feet separated the live lane of express traffic from the railing marking the edge of the shoulder.

[7] Sgt. Stapleton stopped four to five feet behind the car, closer to the guardrail. He notified the police dispatcher of the stop and ran the licence plate number. He got out and approached the passenger side of the car because there was only some two feet of distance between the live lane of traffic and the driver’s side door.

[8] It was a dark night and it had been raining. Traffic was whizzing by at high speed, creating winds that rocked the police cruiser.

[9] Sgt. Stapleton knocked on the passenger window. There was no response and the officer indicated to the driver to roll down the window. When the window was not wound down, the officer opened the unlocked passenger door. He made a demand for the documents that Mr. Deslandes already had in his hand in anticipation of the officer’s request. Sgt. Stapleton put his head slightly into the car to receive the documents being offered to him. He smelled a mild odour of alcohol at this time. He was not sure what the source of the odour was. He asked Mr. Deslandes if he had been drinking. Mr. Deslandes did not answer his question. Instead, Mr. Deslandes became very argumentative and confrontational, ranting about being stopped by police and other matters unrelated to Sgt. Stapleton’s question. When the officer told him again that he smelled alcohol and asked him if he had been drinking, Mr. Deslandes refused to listen to the question or to respond to it and he continued his angry rant. He appeared to be mad at the world. Sgt. Stapleton was concerned about Mr. Deslandes’ mental health and he asked him if he was on medication. Mr. Deslandes did not listen to the question or answer it. He did not make overt threats to the officer nor did he have any visible weapons.

[10] Sgt. Stapleton testified that he was alone and facing a situation that he believed was unpredictable and potentially dangerous. He worried about the precarious location of the stop, darkness and Mr. Deslandes’ irrational and angry behaviour. While he was concerned that Mr. Deslandes had been drinking, he testified that he had not formed a reasonable suspicion that Mr. Deslandes had alcohol in his body. He was particularly concerned for his safety and that of Mr. Deslandes if the situation escalated from merely verbal aggression to physical confrontation.

[11] Sgt. Stapleton testified that he made a deliberate decision to stop his investigation until he had the support of other police officers at the scene. He decided not to risk agitating Mr. Deslandes further by taking steps that might crystallize a reasonable suspicion requiring him to make a roadside screening demand of Mr. Deslandes and get him out of the car. After making this decision, he deliberately did not tell Mr. Deslandes why he was detained or give him his rights to counsel. He testified that Mr. Delandes was ranting and not listening to anything that was said. The officer thought he had psychological issues and was off his medication. If Mr. Deslandes had been prepared to listen to what the sergeant was saying, he would have given him his rights to counsel.

[12] The sergeant returned to his scout car and checked for the positions of other scout cars in the Division. He saw that Constables Mahoney and Christodoulou were on lunch and he called the Division. He spoke to Constable Mahoney, advising her that he had stopped a person he was not prepared to deal with alone because he was verbally argumentative. He asked her to bring a screening device to the scene. He did not make a note of the time of his call to the station. Constable Mahoney did not make note of the time of the call but she testified that she left the station at 9:43 p.m., “a couple of minutes” after completing her brief conversation with him.

[13] Constables Mahoney and Christodoulou arrived in a marked scout car at 9:48 p.m., parking on the shoulder behind Sgt. Stapleton’s scout car. Both officers were in uniform. Sgt. Stapleton got out of his car and advised Constable Mahoney of his reasons for stopping Mr. Deslandes and his concerns about Mr. Deslandes’ behaviour, including the presence of a mild odour of alcohol in the car. Mr. Deslandes had remained seated in his car during the wait for the other officers to arrive. He made no attempt to leave the scene. Sgt. Stapleton could not recall if he had taken the keys to Mr. Deslandes’ car or not.

[14] Constable Mahoney approached the passenger side of Mr. Deslandes’ vehicle, opened the door and spoke to him. The other two officers were right behind her but traffic noise prevented Sgt. Stapleton from hearing the conversation. Constable Mahoney testified that she smelled the odour of alcohol on Mr. Deslandes’ breath. He was not yelling or aggressive when she first spoke to him. She asked him how much he had to drink that night and he responded in a strong Jamaican accent that he had “maybe about two beers”. Mr. Deslandes was directed to exit his car using the front passenger door. Constable Mahoney advised Sgt. Stapleton that she could smell the odour of alcohol and he made the ASD demand of Mr. Deslandes.

[15] Constable Mahoney did not advise Mr. Deslandes why he was being detained because it was not her job to do so. She had not made the vehicle stop or had the initial contact with him. She did not advise him of his right to counsel during her contact with him in the period between 9:48 p.m. and 9:55 p.m. She left as the sergeant was reading the demand to get the screening device, warm it up and self-test it by her scout car. She believed the device was working properly based on her self-test.

[16] Sgt. Stapleton testified that Constable Mahoney told him that she could smell alcohol after her conversation with Mr. Deslandes but she did not say anything about the source of the odour. He testified that he formulated his suspicion and read the ASD demand to Mr. Deslandes at 9:55 p.m. because it was now safe do so. Other officers were present to control Mr. Deslandes if he became combative once he was removed from his car.

[17] The sergeant and Constable Christodoulou walked Mr. Deslandes back to Constable Mahoney’s scout car. Initially, the officers did not have physical contact with Mr. Deslandes. The sergeant used the cars and his body to keep Mr. Deslandes closer to the guardrail. On two occasions, as they walked between the parked cars, Sgt. Stapleton took hold of Mr. Deslandes to guide him and make sure that he would not wobble into a live lane of traffic. Sgt. Stapleton described Mr. Deslandes as being unsteady and wobbly on his feet despite the fact that the shoulder was flat asphalt and clear of any debris.

[18] Once they were at Constable Mahoney’s scout car, Mr. Deslandes became argumentative and began to question whether they were police. He told them they should take him to prison. The officers pointed to their uniforms, crests and scout cars to identify themselves but he kept saying they weren’t police. Sgt. Stapleton believed Mr. Deslandes was “acting silly” and displaying an “I don’t care attitude” that was not normal for persons in his situation. When Constable Mahoney tried to explain the procedure for taking the breath test, Mr. Deslandes wasn’t listening. He kept rambling on about other unrelated matters.

[19] All three officers and Mr. Deslandes were huddled in a small area as he tried to blow into the device held by Constable Mahoney. He blew once and then stopped blowing. He was encouraged to blow again. He continued to be wobbly on his feet. Sgt. Stapleton could smell the odour of alcohol but there was too much wind for him to determine where the odour was coming from. The sergeant was not face-to-face with Mr. Deslandes.

[20] Constable Mahoney has 24 years experience as a police officer. She described Mr. Deslandes as very confrontational and angry when she tried to explain the operation of the ASD to him. He would not listen to her and kept interrupting. In her words, “he wouldn’t let her get a word in edgewise”. He did not believe they were police and kept telling them to punish him and take him to prison. He took the sterile mouthpiece and put it into the device and began to blow into it. He did not blow properly. She explained a number of times that he had to blow continuously into the device and he tried three to four times to provide a sample. Constable Mahoney testified that it is her practice to give a caution about the consequences of a refusal in such situations but she could not recall whether she cautioned Mr. Deslandes or not.

[21] Constable Mahoney testified that Mr. Deslandes was not standing still and kept stepping backwards and forwards during the testing procedure. She believed his unsteadiness was increasing but he was not tripping or falling down. The odour of alcohol was stronger. The area by her cruiser was well-lit and she noted that his eyes were slightly red and a bit glassy. Based on the information she had received from Sgt. Stapleton respecting Mr. Deslandes’ driving and demeanour along with her own observations, she formed the opinion that Mr. Deslandes’ ability to operate a motor vehicle was impaired by alcohol and she arrested him on that charge at 9:58 p.m. Mr. Deslandes was cuffed, pat-searched and placed in the rear of her cruiser.

[22] Constable Mahoney denied that she became frustrated with Mr. Deslandes’ failure to provide a suitable sample and jumped too quickly to the next stage of formulating reasonable and probable grounds for arrest. She testified that it was not her stop and that Sgt. Stapleton had made the ASD demand. However, in the course of her interaction with Mr. Deslandes, she made observations about his sobriety and relied on information obtained from Sgt. Stapleton to formulate her grounds to arrest. She denied that the more “prudent” course would have been to permit Mr. Deslandes a number of further tries to provide a roadside screening sample and if he failed to do so, arrest him on a charge of refusal.

[23] At 10:03 p.m., Constable Mahoney read Mr. Deslandes his right to counsel from the back of her memo book. She asked him if he understood and he replied, “I understand that, thank you.” She asked him if he wanted to call a lawyer and he replied, “Yes, if you’re going to provide that to me.” She read him the caution and then the approved instrument breath demand. When she asked him if he understood the demand, he asked her to read it again to him. She did and he said he understood it.

[24] Sgt. Stapleton stayed with Mr. Deslandes’ car. Constables Mahoney and Christodoulou left the scene with Mr. Deslandes at 10:07 p.m. They arrived at the nearest breath testing facility at 32 Division at 10:19 p.m. After a short wait of six minutes, they were admitted into the sallyport. Although they were not told why they had to wait, Constable Mahoney said waits are customary in such situations for a variety of reasons, including the processing of another prisoner or the presence of the prisoner transport wagon. Mr. Deslandes was booked at 10:25 p.m. He made no complaint of injury but advised that he was on medications for depression and back pain. He was taken to the report room and Constable Christodoulou called duty counsel for him at 10:40 p.m. Duty counsel called back at 10:50 p.m. and spoke with Mr. Deslandes in private until 10:54 p.m. After using the washroom, Mr. Delandes was taken by Constable Mahoney to the breath room.

[25] Constable Jason Hodkin was working as a qualified breath technician that night. He received a call to attend 32 Division to perform a test and arrived at the station at 10:33 p.m. He set up and checked the Intoxilyzer 5000C machine and performed a self-test at 10:44 p.m. He was satisfied that the machine was operating properly. Mr. Deslandes was brought to him at 10:55 p.m. He ensured that Mr. Deslandes knew why he was under arrest and why he was at the station. In conversation with Mr. Deslandes, Constable Hodkin observed that his eyes were very red and glassy and that there was a very obvious and strong odour of alcohol coming from his breath. Mr. Deslandes kept looking at the floor. He did not pay attention to the officer or his instructions. Mr. Deslandes was co-operative but talkative. He was lucid and not argumentative. His speech was “fair” and accented. Constable Hodkin had very little opportunity to watch Mr. Deslandes walk as the breath room is very small. He did not note any unsteadiness. Mr. Deslandes’ appearance and demeanour did not change throughout the testing process. He provided two suitable samples of his breath at 11:02 p.m. and 11:22 p.m. In Constable Hodkin’s opinion, the effects of alcohol on Mr. Deslandes were “obvious”.

[26] Mr. Deslandes was advised that he would be charged with the additional offence of “over 80”. He was served with a number of papers by Constable Christodoulou and released from the station at 12:14 a.m. on May 9, 2010.

[27] Mr. Deslandes testified that he is 43 years of age, single and the parent of two adult children. He had been working as a mattress assembler but suffered an injury in a traffic accident in 2007 that left him unable to work due to chronic back pain. He lives with his adult son and they support themselves on the money they receive from Ontario Works. Mr. Deslandes has been seeing Dr. Shapero to deal with his headaches and back pain.

[28] Mr. Deslandes readily admitted his criminal record. I note that it does not contain any convictions for offences of dishonesty and I am mindful that it cannot be used for purposes of propensity reasoning.

[29] Mr. Deslandes testified that he came down with the flu after getting soaked in the rain on the afternoon of May 8, 2010. It hit him hard and he felt congested and weak. He did not believe he had a fever. He drove to his friend’s home at 8:30 p.m. where he drank two Guinness beers and poured white Jamaican rum over his head and face as a home remedy to treat his flu. He left his friend’s place at 9:15 p.m. and was heading home on the 401, travelling westbound from Nielson. He testified that he felt tired and under the weather.

[30] Mr. Deslandes admits that he was speeding but denies that his speed ever exceeded 120 kph. because it never does. He denied making frequent lane changes. He testified that he was behind a trailer, changed lanes and heard the police siren so he stopped immediately. He gathered his documents in readiness for the officer and gave them to the officer when he opened the passenger door. The officer went back to his car, returned and saw that Mr. Deslandes was munching on crackers. The officer told him, “Oh, that won’t help you”. Mr. Deslandes could not recall any other conversation. He testified that he asked the officer why he was pulled over and the officer did not answer him.

[31] Mr. Deslandes said he did not understand the meaning of the word, “rant”. He could not remember his attitude at the time but it “was nothing more than you see here” in the courtroom. He then said that he might have been a little bit more impatient than he was in court because he was “a little bit upset” at being pulled over by the police when he had “no idea” why he was being pulled over. He thought it was because his interior light was on. Although he knew he had been speeding, it never entered his mind that he was being stopped for that because other cars weren’t stopped. In cross-examination, he maintained that “I still don’t know why he stopped me”. Mr. Deslandes said that the officer “maybe asked me if I was drinking and I didn’t answer him because it’s automatically going to put me in jail.” He said that he has been pulled over by the police for nothing on other occasions and he referred to a specific incident where he believed the police had wrongly stopped him for drugs. He said that the police treat him like the worst criminal and try to put him in jail.

[32] Mr. Deslandes testified that he sat in the car for maybe a half hour before he tried to take the breath test. He had a cell phone with him and testified “I’m sure I would have spoken with a lawyer if I was told I could”.

[33] Mr. Deslandes said that he was sure he was unsteady on his feet because he had a sore back that affected his ability to stand. He was stopped on a dark night at a narrow shoulder of the road where he hadn’t been before and the shoulder was uneven and full of gravel. He agreed that he stumbled a couple of times. He agreed that his eyes were slightly red because he was feeling very tired and had the flu. He agreed that there was an odour of alcohol on his breath from the two beers he drank and on his person from the rum he rubbed on his head and face.

[34] He testified that he tried to blow into the ASD but he did not feel well and he could not perform the test properly. Later he said that “maybe I was trying not to provide it because I didn’t know my rights”. He also suggested that the medication he had taken for his back pain and depression might have made it difficult for him to provide a suitable sample.

[35] In cross-examination, Mr. Deslandes ultimately agreed that the report by Dr. Shapero does not mention that his back pain began in the 1990’s and affected his walking and standing. Mr. Deslandes did admit that he had memory problems and eventually agreed that his memory of these events was hazy.

Findings of Fact

[36] In this case, Mr. Deslandes is presumed to be innocent unless and until the Crown has proven each essential element of one or both offences beyond a reasonable doubt. Reasonable doubt is based on common sense and it is logically connected to the evidence or lack of evidence. Reasonable doubt is far closer to a standard of absolute certainty than it is to a balance of probabilities but it does not require proof beyond all doubt or proof to a standard of absolute certainty.

[37] There is a considerable divergence in the evidence. It is necessary to determine the facts in order to provide a context in which the issues raised by Mr. Deslandes can be determined. In making my determinations of credibility and reliability, I am guided by the principles set out in the decision of the Supreme Court of Canada in R. v. W. (D.)[^1].

[38] As a matter of convenience rather than a reversal of the burden of proof, I propose to deal with the evidence of Mr. Deslandes first. I did not find him to be an impressive witness. He failed to listen to the questions asked of him and was frequently non-responsive in his answers, requiring a number of cautions from the court. His distrust and dislike of police was palpable as he testified. In cross-examination, he was confrontational and aggressive with Crown counsel. He spoke loudly and quickly and at length to emphasize his points. Initially, he could not remember what his attitude was on the night of these events. In cross-examination, he described his attitude as the same as he was displaying in court or perhaps a little more upset. The demeanour he displayed in court is consistent with the descriptions provided by the police, at least with respect to his refusal to listen, his rambling and non-responsive answers and his argumentative attitude.

[39] In my view, his evidence was inconsistent, evasive and implausible. I find that he embellished his back injury where convenient. His evidence about the onset of his pain and his inability to stand and walk properly is inconsistent with the symptoms recorded by his physician in his letter filed with the court.[^2] He was the only witness to say he was eating crackers; that fact and the verbal exchange with Sergeant Stapleton were never put to the officer. Mr. Deslandes was unable to remember many details. After persistent questioning, he admitted that his memory of the events was hazy in some respects but he was certain this was due to insomnia rather than intoxication. His explanation about his home remedy for the flu, pouring rum over his head and face rather than drinking it, is simply absurd.

[40] In contrast, I found that Sergeant Stapleton gave his evidence in a clear and direct manner. He was not shaken in cross-examination. His evidence was detailed and logical. He candidly admitted that he deliberately withheld information from Mr. Deslandes and stopped his investigation because of his safety concerns. He was forthright about what he recalled Constable Mahoney telling him about the odour of alcohol. His evidence about Mr. Deslandes’ demeanour was corroborated by the evidence of Constable Mahoney, particularly the failure to listen and the ranting. I accept the Sergeant’s testimony as credible and reliable. Where there is any divergence between the accounts of Mr. Deslandes and Sergeant Stapleton, I accept that of the officer.

[41] Constable Mahoney also testified in a forthright and logical manner. Her explanation for why she failed to give Mr. Deslandes his section 10 Charter rights when she first spoke to him makes sense: it was not her stop. I accept her evidence that she did not “rush to judgment” by arresting Mr. Deslandes on the charge of impaired driving rather than giving him more opportunities to provide a suitable roadside sample. In my view, the officer provided strong reasons for a course of action that I deem prudent in all of the circumstances and she did not deviate in her testimony despite an intensive cross-examination. Her observations of Mr. Deslandes’ eyes and inattentiveness were corroborated by Constable Hodkin, the breathalyser technician. In Constable Hodkin’s opinion, the effects of alcohol were “obvious” which also corroborates Constable Mahoney’s belief.

[42] I found the police evidence compelling and reliable and I accept it as constituting the facts in this case.

[43] Times are important to the consideration of the issues raised by the defence in this case. While there is a regrettable lack of precision respecting the times of the stop and the sergeant’s phone call for assistance, I am satisfied that the time Mr. Deslandes spent sitting alone in his car was closer to eighteen minutes than the thirty minutes he complained of. It is clear that Sergeant Stapleton’s initial observations of Mr. Deslandes were made at 9:25 p.m. He drove alongside the car for one minute, followed behind for two minutes, initiated his stop and then succeeded in stopping Mr. Deslandes. I find that the time of the stop was probably close to 9:30 p.m. There was time required for the officer to get out of his car, approach Mr. Deslandes’ car, interact with him and return to his cruiser to assess where reinforcements might be found. I am satisfied that the call to Constable Mahoney was probably made close to 9:40 p.m. I accept her evidence that she left the station at 9:43 p.m., a few minutes after completing her call with the sergeant. She arrived on scene at 9:48 p.m. Sergeant Stapleton briefed his colleagues about the situation for a few minutes and then all three officers approached Mr. Deslandes’ car. Constable Mahoney spoke to him and Sergeant Stapleton made the ASD demand at 9:55 p.m. Mr. Deslandes was arrested at 9:58 p.m. and read his rights to counsel at 10:03 p.m. I propose to address the issues in this case with those times as a frame of reference.

The Charter and Trial Issues

[44] The defence contends that the evidence clearly establishes multiple and serious breaches of Mr. Deslandes’ Charter rights warranting the exclusion of all evidence on both charges and/or a stay of the charge of impaired driving.

[45] With respect to the alleged breaches of sections 10(a) and (b) of the Charter, the defence submits that Mr. Deslandes’ right to be informed of the reason for his detention and his right to consult counsel were deliberately violated when he waited at the roadside for nearly one half hour before he was asked to take a screening test. The failure to provide these rights in a timely way cannot be justified on the basis of exigency or safety concerns because Mr. Deslandes was never armed with a weapon and he never made any direct threats to Sgt. Stapleton. The defence contends that the delay was due to the need to bring a screening device to the scene rather than due to safety concerns.

[46] Once reinforcements arrived, there was a further unacceptable delay while Constable Mahoney interacted with Mr. Deslandes before the sergeant finally made the screening demand. This screening demand was not lawful because the sergeant lacked the requisite reasonable suspicion to make it. The defence position is that the sergeant formed his suspicion on or shortly after his initial conversation with Mr. Deslandes, when the screening device was unavailable, and therefore the test was not administered “forthwith”.

[47] With respect to section 9 of the Charter, the length of time that Mr. Deslandes was detained without any explanation or rights to counsel converted an initially lawful stop into an arbitrary detention.

[48] With respect to section 8 of the Charter, the defence contends that Constable Mahoney lacked the requisite reasonable and probable grounds to arrest Mr. Deslandes for impaired driving and therefore the Intoxilyzer demand was not a lawful one. The warrantless search and seizure of Mr. Deslandes’ breath following the invalid demand was a breach of his section 8 Charter right.

[49] The Crown submits that the circumstances of this case are unusual because there were real safety concerns that justified a suspension of the investigation and the administration of Mr. Deslandes’ section 10 rights until other officers arrived on scene. Those safety concerns also justified a lengthier detention than normal. In the circumstances of this case, Mr. Deslandes’ detention, while lengthy, did not become arbitrary because of the on-going safety concerns created by his behaviour. The Crown argues that once it was safe to do so, Sergeant Stapleton turned his mind to whether he had the necessary suspicion to make a valid roadside screening demand and when he was satisfied that he did, he made the demand “forthwith”. The Crown contends that he had objectively discernible reasonable grounds to suspect the presence of alcohol in Mr. Deslandes’ body. Although there was no ASD reading obtained, Constable Mahoney had the necessary reasonable and probable grounds to arrest Mr. Deslandes on the charge of impaired driving and she acted prudently by doing so. In the result, there were no Charter breaches. Should I find that there were infringements of one or more of Mr. Deslandes’ Charter rights, the Crown argues that the evidence should not be excluded under a Grant analysis and the charge of impaired driving should not be stayed.

[50] In my view, the Charter issues are inter-related and the outcome of Mr. Deslandes’ application turns on whether or not there were valid safety concerns. If, as the defence contends, there were no real safety concerns, then the failure to advise Mr. Deslandes that he was being stopped in relation to a drinking/driving offence and the failure to pursue that investigation immediately likely results in breaches of certain of his rights under sections 7, 8, 9, 10(a) and 10(b) of the Charter. However, if there were objectively valid safety concerns, a decision to defer the investigation pending the arrival of reinforcements may justify the various alleged breaches of Mr. Deslandes’ Charter rights.

[51] I am satisfied that shortly after he began his roadside investigation of Mr. Deslandes, Sergeant Stapleton developed a real and pressing concern for officer and public safety that justified a delay in the administration of Mr. Deslandes’ section 10 rights. This was a stop on a relatively narrow shoulder between the express and collector lanes on one of the busiest highways in Canada. The stop was made in darkness and the roads were wet from an earlier rain. Vehicles were whizzing by at speed. Sergeant Stapleton was alone in his cruiser. Mr. Deslandes had not been immediately compliant with the officer’s direction to pull over or to wind down the passenger window. He had his documents in hand when the officer first interacted with him but he was behaving irrationally, ranting and refusing to listen to the officer. His behaviour was so abnormal that the officer believed that Mr. Deslandes might be mentally disturbed and off his prescribed medication rather than intoxicated due to alcohol. Sergeant Stapleton wanted to de-escalate the situation until he had the support of other officers. He feared that if Mr. Deslandes got out of his car that he would not be able to control him and both might fall into a live lane of traffic and be struck by on-coming vehicles. The situation was fraught with risk and highly unpredictable. I do not accept the defence argument that the absence of any direct threats or weapons rendered Sergeant Stapleton’s safety concerns less real. Danger presents in many forms and risk assessment is always more precise with hindsight. I also do not accept that the officer’s safety concerns were merely a ruse to explain a lengthy delay in getting a screening device to the scene.

[52] This is not a case where the officer was inexperienced or unaware of his Charter responsibilities towards Mr. Deslandes or unwilling to comply with those responsibilities for oblique reasons. Instead, this is a case where the officer weighed his Charter obligations against the unpredictability and danger of the situation as he assessed it. He deliberately chose a means to manage the safety concerns the situation presented by not saying anything further that might incite Mr. Deslandes and by walking away until other officers attended to assist with the investigation. Sergeant Stapleton did not turn his mind to a suspicion that Mr. Deslandes had alcohol in his system because he knew that he would have to make a breath demand “forthwith” and that any demand might further agitate Mr. Deslandes. I find that while the sergeant was alerted to the possibility that a suspicion might crystallize based on the odour of alcohol in the car, he desisted in considering it further because of his safety concerns. I do not agree with the defence that faced with this situation, the officer should have given Mr. Deslandes a few moments to calm down and then attempted to speak to him again, before other officers had arrived on scene. The potential danger of the situation lay in its unpredictability.

[53] There is no doubt that Mr. Deslandes was detained by Sergeant Stapleton when he was pulled over and directed to remain at the roadside. Once a person is detained, sections 10(a) and (b) of the Charter require a police officer to inform a detainee of the reason for the detention and his or her rights to retain and instruct counsel without delay. The officer is also required to provide the detainee with an opportunity to exercise the right to counsel. However, these rights are not absolute. The Supreme Court has confirmed in R. v. Suberu[^3] that the duty to inform a detainee about his or her right to speak to a lawyer without delay is subject to concerns for officer or public safety, or to reasonable limitations prescribed by law and justified under s. 1 of the Charter.[^4]

[54] In this case, I am satisfied that Sergeant Stapleton’s concerns for his safety and that of Mr. Deslandes justified his admitted delay in telling Mr. Deslandes why he was investigating him and telling him he had the right to speak to a lawyer. I appreciate that Mr. Deslandes was not given his rights to counsel or expressly advised of the reason for his detention. However, I am satisfied on all the evidence that Mr. Deslandes knew that he was being investigated in relation to a possible drinking and driving offence. In addition, I am satisfied that he did not have a realistic opportunity to consult counsel in all of the circumstances even if he had been advised of his right to do so.

[55] I do not accept Mr. Deslandes’ evidence that he did not know why he was being detained. His testimony about why he believed he was detained varied considerably. He said that he had “no idea” why he was stopped, either at the time or as of his trial. He said that he thought he had been stopped because his interior light was on but not because he was speeding. He knew he had been speeding but so had other cars and they were not pulled over. He knew the officer asked him if he had been drinking and he knew that he didn’t answer “because it’s automatically going to put me in jail.” Considering all of his testimony on point, I am satisfied beyond any doubt that Mr. Deslandes knew that Sergeant Stapleton wanted to investigate him for drinking and driving once he had stopped him for traffic infractions.

[56] Mr. Deslandes testified that he would have spoken with a lawyer if he had been told that he could. I conclude that Mr. Deslandes was stopped close to 9:30 p.m. and that he waited alone in his car with his cell phone for almost twenty minutes before police continued their investigation into his conduct. However, on all the evidence, I am satisfied that there was no realistic opportunity for Mr. Deslandes, in his disturbed emotional state, to consult with counsel as distinct from a chance for him to make a phone call.[^5] The evidence is that Mr. Deslandes was not listening to anything the sergeant was telling him and that had he been listening, the sergeant would have given him his rights to counsel and proceeded with his investigation. I am satisfied that Mr. Deslandes’ anger and confrontational attitude was a barrier to reason and he would not have been able to contact, seek and receive advice from counsel in that state of mind as he waited at the roadside.

[57] I am also satisfied that Mr. Deslandes’ detention, while lengthy, was not arbitrary. The defence concedes that the initial stop was lawful and in my view the continuing safety concerns did not detract from its lawfulness on the facts of this case. Once reinforcements arrived, time was required to brief the new arrivals on the circumstances leading up to the stop and the concerns of the sergeant about Mr. Deslandes’ behaviour and sobriety. The briefing was necessary to ensure that all three officers were prepared to deal with any safety issues Mr. Deslandes might present once he was removed from his car. Fortunately Mr. Deslandes’ combative attitude diminished in the presence of three officers. I do not find that the seven minutes that the officers took to accomplish the briefing, re-activate the investigation, remove Mr. Deslandes from his car and administer the roadside demand was unreasonable or that it converted an otherwise lawful detention into an arbitrary one.

[58] Mr. Deslandes submits that the approved screening device demand was not valid because the sergeant only detected an odour of alcohol in the car and not on Mr. Deslandes’ breath. Therefore, he could not have a reasonable suspicion that Mr. Deslandes had alcohol in his body.

[59] Pursuant to s. 254(2) of the Criminal Code, a police officer may make a roadside screening demand if the officer “reasonably suspects” that a person operating a motor vehicle “has alcohol” in his or her body. The requirement of reasonable suspicion has both an objective and subjective component. In this case, Sergeant Stapleton must have honestly suspected that Mr. Deslandes had alcohol in his system and that suspicion must be objectively supported by the evidence.

[60] The sergeant’s suspicion that Mr. Deslandes had alcohol in his body was based on the generalized presence of a mild odour of alcohol, Mr. Deslandes’ demeanour and his driving. The sergeant did not know the source of the odour of alcohol and he did not receive any admission of consumption by Mr. Deslandes. Prior to forming his suspicion, the sergeant did not notice any of the usual physical indicia of impairment.

[61] I am satisfied that Sergeant Stapleton subjectively believed that he had the requisite suspicion. With respect to objective support for his opinion, I note that reasonable suspicion may be formed even where there is no smell of alcohol.[^6] The odour of alcohol emanating from a vehicle with a sole occupant has been held to be sufficient evidence to support a screening demand.[^7] In this case, there was evidence of a mild odour of alcohol emanating from a vehicle where Mr. Deslandes was the lone occupant; evidence of poor driving; evidence that Mr. Deslandes was unaware of a police cruiser driving beside and behind him for over three minutes; evidence of non-compliance with directions from police; evidence of non-responsiveness to police questions; and evidence of irrational and confrontational behaviour. Considered cumulatively, I am satisfied beyond a reasonable doubt that Sergeant Stapleton had the requisite suspicion when considered from an objective perspective and that the ASD demand was valid.

[62] Mr. Deslandes argues that Sergeant Stapleton did not make the screening demand “forthwith” in compliance with the provisions of s. 254(2)(b) of the Criminal Code. In essence, defence counsel contends that the sergeant had the necessary reasonable suspicion to make an ASD demand when he first spoke with Mr. Deslandes but he did not act on his suspicion because he did not have a device. Instead of making the demand shortly after the stop, the sergeant waited nearly twenty minutes for the arrival of the device and other officers.

[63] This argument must fail because I have accepted the evidence of the sergeant that he deliberately desisted in his investigation prior to the stage of acquiring a reasonable suspicion that Mr. Deslandes had alcohol in his body because of what I find to be valid safety concerns. Once the investigation resumed, after Constable Mahoney had spoken to Mr. Deslandes and confirmed the presence of an odour of alcohol, Sergeant Stapleton turned his mind to the presence or absence of the necessary grounds to make the ASD demand. Once satisfied that he had the requisite suspicion, he immediately made the ASD demand.

[64] Finally, Mr. Deslandes argues that Constable Mahoney lacked the requisite reasonable and probable grounds necessary to arrest him on the offence of impaired driving. This issue was framed as a Charter issue, on the basis that the absence of requisite grounds to make the demand violated section 8. In the context of the Charter application, the Crown bears the onus of establishing on a balance of probabilities that the warrantless search of Mr. Deslandes’ breath did not breach his right against unreasonable search and seizure.[^8] However, the validity of the demand is an essential element of the offence of ‘over 80’ and the existence of a proper demand must be proven by the Crown beyond a reasonable doubt. I propose to deal with this issue on that basis.

[65] Defence counsel contends that Constable Mahoney became frustrated with Mr. Deslandes’ inability to provide a suitable sample into the screening device and that she “jumped the gun” by arresting him. Mr. Sobcuff contends that it would have been more prudent for the officer to provide Mr. Deslandes with further opportunities to provide a roadside sample and to charge him with refusal if he failed to comply.

[66] Constable Mahoney specifically denied that she had rushed to judgment on the issue of Mr. Deslandes’ impairment. She referred to a number of factors that led her to the conclusion that he was impaired. She spoke of her knowledge of his driving infractions based on information she had obtained from Sergeant Stapleton. She had obtained an admission of consumption from Mr. Deslandes. She listed a number of indicia of physical impairment that she observed. These indicia consist of the following: an odour of alcohol emanating from Mr. Deslandes’ breath; increased unsteadiness on his feet; slightly red and glassy eyes; his very confrontational and angry demeanour; his failure to accept that she and her colleagues were police officers despite the evidence of their cruisers, uniforms and crests; and his refusal to listen to what she was saying and take direction regarding the administration of the screening device test. Several of these indicia either became apparent or increased in severity once the officers were huddled together with Mr. Deslandes in a better-lit area by her cruiser, preparatory to administering the ASD test. Her observations of impairment are corroborated by Sergeant Stapleton and to a more limited extent, by Mr. Deslandes himself.

[67] The defence does not challenge the officer’s subjective belief in the sufficiency of her grounds to arrest. It is whether her subjective belief has objective support in the evidence that is the issue. The jurisprudence indicates that the officer’s grounds must be examined from the viewpoint of her knowledge at the time she made the demand. Her understanding may be based on hearsay and even a misperception of the actual evidence. I must weigh her understanding to determine its reasonableness and probability and I must assess the evidence cumulatively rather than individually. Finally, I must remember that “reasonable grounds in the context of a s. 254(3) breath demand is not an onerous threshold”. The prosecution need only demonstrate objective grounds to believe, not a prima facie case, that Mr. Deslandes’ ability to drive was at least slightly impaired by alcohol consumption.[^9]

[68] Applying that guidance, I am satisfied that Constable Mahoney’s grounds to believe have objective support in the evidence. I accept her testimony that she did not react out of frustration but instead in response to a dynamic situation where Mr. Deslandes’ efforts to provide a screening sample were instead providing indicia of his impairment. She is an officer with considerable experience and she detailed the basis for her conclusion that she had the requisite grounds to arrest. Her evidence about the indicia of impairment was corroborated by the observations of the sergeant and the breath tech. That evidence, along with all of the other evidence about Mr. Delandes’ physical appearance and demeanour, satisfies me that she had the “constellation of objectively discernible facts” to support her opinion of impairment and make the arrest valid.

[69] In summary, I am satisfied by a preponderance of evidence that there has been no breach of Mr. Deslandes’ Charter rights in the particular circumstances of this case.

[70] On the evidence that I accept as factual, I am satisfied beyond a reasonable doubt that the Crown has proven the essential elements of each offence. I invite the Crown to indicate which of the two charges she wishes to be stayed and I will register a conviction on the remaining count in the information.

Released: February 1, 2012.

Signed: “Justice S.E. Marin”

[^1]: R. v. W. (D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397.

[^2]: Exhibit 1, Letter from The Shapero Markham Headache and Pain Treatment Centre, undated but in response to counsel’s letter of August 29, 2011.

[^3]: R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33.

[^4]: R. v. Suberu, ibid, at para 2.

[^5]: R. v. Torsney, 2007 ONCA 67, [2007] O.J. No. 355 (C.A.) at para. 13, leave refused [2007] S.C.C.A. No. 126

[^6]: R. v. Hryniewicz, [2000] O.J. No. 436 (C.A.); R. v. Zoravkocic, [1998] O.J. No. 2668 (C.A.); R.v. Singh, [2006] O.J. No. 5133 (S.C.J.) at para. 12; R. v. Mac, [2008] O.J. No. 1334 at para. 10 (C.J.)

[^7]: R. v. Kokkinakis, [1999] O.J. No. 1326 (prov. Div.)

[^8]: R. v. Haas, 2005 CanLII 26440 (ON CA), [2005] O.J. No. 3160 (C.A.) at paras. 24-26.

[^9]: R. v. Censoni, [2001] O.J. No. 5189 at paras. 43 and 59.