Court File and Parties

Court File No.: 11-3679 Ontario Court of Justice

Between: Her Majesty the Queen — and — Tennille Erskine

Before: Justice S. R. Clark

Trial held on: November 1 and 5, 2012; January 28, May 1, August 30, October 2, and December 23, 2013

Judgment released on: January 27, 2014

Counsel:

• Ms. L. Peoples and Mr. V. Aujla for the Crown
• Mr. D. Gravesande for the defendant Tennille Erskine

1:0 Introduction

[1] The defendant is charged with impaired operation and refuse breath sample on March 17, 2011, more than 2 ½ years ago.

[2] Although the law appears to be well-settled that police entry onto a defendant's driveway to further their investigation of a suspected impaired driver is constitutionally unobjectionable, this case addresses the issue of whether any implied licence to investigate ends at the door of a dwelling (see R. v. Lotozky, [2006] O.J. No. 2516, para. 26).

[3] The police responded to a radio call from civilians about a possible impaired driver. The suspect car was followed by them to a driveway of a house, at which time they observed a female get out and enter into the residence. The police subsequently attended and rang the door bell. A man answered. The defendant then emerged from the bathroom in the house. The officer asked her if she had consumed alcohol, to which she replied she had, earlier. He observed indicia of impairment and smelled alcohol. He asked her to come outside to examine the vehicle in the driveway, which the officer understood might have been involved in an accident. Both the defendant and her husband went outside as directed. When no apparent damage could be detected they started to walk back into the house at which time the officer advised her she was under arrest for impaired operation. She was subsequently taken to the police station, whereupon she provided one breath sample, but after several attempts did not provide a suitable second sample according to the qualified breath technician (QBT), and was charged accordingly.

[4] The defendant has filed a Charter application claiming a violation of her ss. 7, 8, 9, 10(a) and 10(b) rights.

[5] The thrust of the defence position, overall, is that the Crown has not proven identification of her as the culprit beyond a reasonable doubt. Alternatively, the police violated her Charter rights by entering her house without a warrant. She was arrested without reasonable or probable grounds and was, therefore, legally entitled to refuse to provide a breath sample. In any event, the Crown has not proven all of the essential elements of impairment beyond a reasonable doubt. Furthermore, she did not refuse, but made every effort to provide suitable breath samples. She became physically unable to do so because the QBT made her blow so many times, she effectively had no breath left.

[6] The Crown, on the other hand, contends there have been no Charter breaches. Alternatively, any evidence obtained should be saved by an analysis of s.24(2). Additionally, the essential elements of identification, reasonable and probable grounds, impairment, and failure to provide a breath sample have all been established beyond a reasonable doubt.

2:0 The Issues

[7] The 6 main issues are as follows:

Issue 1 – Has the Crown proven identity of the suspect driver beyond a reasonable doubt?

Issue 2 – Did the police have reasonable and probable grounds to arrest the defendant for impaired operation?

Issue 3 – Has the Crown proven the essential elements of impairment beyond a reasonable doubt?

Issue 4 – Did the police have the legal authority to enter onto the defendant's property and effect an arrest?

Issue 5 – Did the defendant intentionally refuse or fail to provide suitable breath samples?

Issue 6 – If there were any Charter breaches, is the evidence saved under a s.24(2) analysis?

3:0 Summary of the Evidence

3:1 The Crown

3:1.1 Giancarlo Quattrociocchi

He and his friend were driving home from a restaurant, northbound on highway 427 near highway 409. He observed what he believed was a drunk driver. The vehicle was approximately 100 feet in front of him weaving in and out of lanes, going from the right lane to the left lane without signalling. It was "bouncing" off either side of the line in the left lane. Another car nearby had to apply its brakes. The subject vehicle then exited at Zenway Drive. It cut off other cars and then stopped at a green light, which then turned red. Approximately 5 seconds later the vehicle sped through the red light. He continued to follow it. It then swerved and made a right turn on the next street at Ebenezer Drive. The right side of the vehicle hit the right curb. It then entered a driveway at a house, #7 Vespa Hills Drive. Within two minutes of following the subject vehicle, his friend, who was in the passenger's seat, called 911 and spoke with the operator. He testified he never lost sight of the vehicle and remained outside the residence until the police arrived. After approximately two minutes, a lady crawled out of the passenger's side door. She stumbled on her way to the house. When he gave his statement to the police later, he described she was approximately 5 foot 7 inches tall and weighed approximately 135 pounds. She was wearing a brown jacket with fur on the hood. She had dark-coloured skin. He did not observe anyone else come out of the subject vehicle, nor did he see anyone come out of the house before the police arrived approximately 2 minutes later.

On cross-examination, he believed he followed the subject vehicle for approximately 15 to 18 minutes. He was vigorously challenged because he told the 911 operator it was a male driver. He explained he was not the one who placed the call, as he was driving. The passenger used the hands-free phone to provide the details. He, too, initially thought it was a male, but indicated he was just guessing on the basis of the driving manoeuvres made. The windows of the subject vehicle were tinted. He was able to determine the suspect as a black individual, however. He kept a watchful eye on the person who got out of the car and went into the house. His vantage point was approximately 70 feet away. He noticed the suspect stumbling. He described it as a drunk "wobble", meaning unsteady. In his statement he told the police she walked like an "old lady", meaning she was unsteady on her feet. He did not mean she was old, necessarily, but her walk reminded him of how an old lady might walk. He disagreed with counsel's suggestion that the police told him the driver was a woman based on the information obtained about the name of the registered owner. He saw the officer go to the front door of the house but did not recall seeing him go in. He did not see the officer pulling the defendant while on the front porch or telling her she was under arrest for impaired driving. There was a male, however, trying to prevent her from being taken away.

3:1.2 Richard Young-Michaud

He made substantially the same observations as the first witness. He noticed the subject vehicle cut from the far right to left while on highway 427. He initially thought the car was being operated by some "punk kids", and not necessarily a drunk driver. He noticed the subject vehicle drive over "rumble strips", which are the markings on the outside limits of a lane to let motorists know if they are going too far over. He then noticed the vehicle cut left and then right to exit the highway at Zenway. He called 911. By this time he figured it was a drunk driver because it was St. Patrick's Day, believing a number of people would be drinking and then driving. The vehicle stopped at a green light, but it "punched" through the intersection as it turned yellow. It then made a right turn on Ebenezer, hitting the curb for no apparent reason on the right side. It then swerved back into the middle of the road and then turned right again on Vespa Hills pulling into the driveway at #7. He could not recall if he was asked to give a description of the driver to the 911 operator. He testified he just assumed it was a male because of the way he drove. He gave the licence number to the operator. He also described the driver as a black person. Although the windows were tinted, he could see the colour of the driver's hand as it passed him on the passenger's side while on the highway. While parked across the road from the subject residence, and while waiting for dispatch to give them further directions, and for the police to arrive, he noticed a female getting out of the passenger's side carrying bags. She "waddled" her way up to the front door. No one else came out of the car.

On cross-examination, he agreed he came to Court with his friend and that they had discussed the case previously, but not at Court before they both gave their evidence. Counsel vigorously cross-examined him on his statement. He had told the police the suspect got out of the driver's side. Counsel suggested that before he signed his statement he must have been satisfied with its accuracy. Although he did not disagree, he believed the officer may have misheard him. He recalled he and his friend both asked one another why the driver was now getting out of the passenger's side. When she got out she did not fall but lost her balance twice and took what he described as a "double step". He then saw her open the door of the residence. Later, he saw a male in the driveway becoming upset. The police officer was trying to talk to him and calm him down. He could tell by the male's body language, however, that he was angry. He denied there was any road rage on their part, having been cut off by the subject vehicle before highway 50.

3:1.3 Constable McIntaggert

He arrived on scene at approximately 11:29 p.m. He spoke briefly with the two civilian witnesses who advised him of the observations they had made regarding the suspect's driving. They both told him they saw a female exit the subject vehicle from the passenger's side with her purse and bags and go into the house. They gave him a description. He then went to the front door and rang the bell. A male answered. The officer advised him he was there to investigate the car in the driveway. The man told him his wife had just come home from school and was presently in the washroom. When she came out, the officer asked him if she had consumed any alcohol since arriving home. He said she had not. The officer then asked the lady to step closer so he could speak with her, at which time he noticed a purse and wallet open on the floor near the front door. She came toward the front door where he was still standing. He observed her to be unsteady on her feet. She was swaying while walking. He noted a strong odour of an alcoholic beverage coming from her mouth. He observed her eyes to be red-rimmed and watery. He asked her if she had been drinking. She responded, "Earlier". She had mild slurred speech. He then asked her for identification. She had some difficulty providing her driver's licence. She and her husband then went out with him to look at the vehicle. She told him her car had not come into contact with anything. At this time she and her husband became belligerent. At 11:45 p.m. the officer formed the opinion her ability to operate a motor vehicle was impaired by alcohol, and that she had been driving. She was placed under arrest, given the reasons why, and then given her rights to counsel. He read her the breath demand and the caution. She was then transported to 22 division.

He explained when he approached the front door his intention was to find out who had been operating the car which was now in the driveway. He had not yet formed his grounds. His colleague, Cst. Lupson, had now arrived. Once outside, he asked his colleague to speak to the defendant's husband about the safety reasons why she had to be handcuffed, while he continued to deal with her. When he read her rights to counsel, her tone of voice in response was belligerent. She gave short and sharp answers to him. Prior to this, when he was engaging her in general conversation, she appeared to be educated and articulate, to use his words. He testified at no time did he go into the defendant's house, but merely stood at the front door. When asked why, he stated, "I suppose I wasn't invited in."

He remained in the breath room while the defendant was involved with the QBT. He continued to make observations of her. At times she was laughing and was not taking directions from the QBT.

On cross-examination, he disagreed with counsel's suggestion that he used mere police "lexicon" in observing bloodshot and watery eyes, slurred speech, and her being unsteady on her feet. He again explained his investigative steps. He first rang the doorbell. A man answered. He believed he told him he was there to investigate an impaired driver associated with the vehicle outside in the driveway. Counsel suggested he may have only asked who owned the BMW. He could not recall. He believed the front door was wide open. A light was on in the foyer. He could not recall if the man had a glass of alcohol in his hand. He disagreed he instructed him to go and get his wife. The man had already told him his wife just got home and was in a hurry to use the washroom. He saw her come into view as she came out of the washroom. Counsel suggested he did come into the house and walked right behind the man who went to get the defendant out of the washroom. He did not have a recollection of this.

He disagreed with counsel's suggestion that the only reason he asked for her driver's licence was because he was investigating an accident. He invited them to come out to view the car to see the damage. He agreed, to this point, he did not tell the defendant the reason why he was there, or why he was asking for her driver's licence. He disagreed with counsel's suggestion, however, that he was only leading her to believe he was there to deal with the damage to the car. He did not recall if he told her he was there to investigate a possible impaired driving case.

He acknowledged he had not yet formed the necessary grounds the defendant was impaired before they left the house. He then stated he believed he did have the necessary grounds, but did not effect an arrest at this point because he wanted to observe her for a slightly longer period of time. He never told her, however, she was under no obligation to accompany him to look at the car.

With reference to his alcohol influence report, he noted the effects of alcohol on her to be obvious, meaning noticeable. Her forehead area was flushed. He explained nothing was ticked off in any box under the section regarding speech, because it was already noted in his police notebook.

He acknowledged the defendant's attitude was relatively calm and cooperative when she was first inside the house. However, she became quite cocky, talkative, and excited as the investigation continued. She became particularly belligerent when he was reading her rights to counsel. From her responses, he believed she was not being straightforward. She was upset and "sharp" with him about having been arrested. She made statements of "grandeur", to use his word. Her use of language left him with the impression she almost felt she was above this whole process. She told him words to the effect, "I'm rich. I make more than you. I'm going above you in this investigation. There were three people in the car and I wasn't driving. I wrote a thesis about this. I have a Masters you know".

3:1.4 Constable Dameon Okposio

He is the QBT. He has been with the Peel Police Service since 1999. He has performed approximately 742 previous breath sample procedures. He arrived at 22 division at 12:06 a.m., having been notified by dispatch at 11:50 p.m. He warmed up the intoxilzyer apparatus, and at 12:15 a.m. performed all the necessary calibration checks and other diagnostics in accordance with his training. He satisfied himself all internal functions were working properly. The defendant was brought into the breath room at 12:22. At 12:29 he received grounds for the arrest from the investigating officer. He was told civilian witnesses saw the defendant strike a curb and they followed it to a residence. In the breath room he observed the defendant to be unsteady on her feet. He detected the odour of an alcoholic beverage on her breath. He, too, formed the opinion she was impaired. He read her rights to counsel. She indicated she wanted to speak to a lawyer, Paul Erskine. He placed a call to the lawyer's office and left a message on his voice mail. He called a second phone number at 12:37, however, a message indicated the number was out of service. A third call was placed at 12:38, however, the voice mail message said to leave a message on the first number the officer had called. The defendant next indicated she wanted to speak to another lawyer, Mr. Sidky Butler. He facilitated by calling and leaving a message. She was able to speak to this counsel. He was subsequently advised that Mr. Erskine had also called back. He made the necessary arrangements to allow her to speak to him as well.

The video/DVD was played. The following is the Court's summary and impressions of the exchange between the defendant and the QBT in the breath room:

The Court noticed the QBT was most professional and respectful throughout. He followed the usual procedures and cautioned her that she did not have to say anything. He conducted the investigation in clear and simple language. She was not particularly talkative. It is fair to characterize the tenor of the exchange of her speaking only when spoken to.

He read the breath demand to her slowly and told her it was a legal requirement to do so. She indicated she understood. He also explained if she did not blow into the instrument, and only pretended to do so, this would result in a further charge of refusal which would attract the same penalties as the charge of impaired operation. He asked her if she had any questions. She responded, "No sir". He asked her to take the mouthpiece out of the plastic wrapping and showed her how to take a deep breath. She tried blowing through the mouthpiece herself, however he told her, "You're blowing lightly". He told her to blow down in the mouthpiece toward the ground. There were no obstructions in the mouthpiece when she blew. He told her to put the mouthpiece in the tube and to take a deep breath and blow continuously. He explained further she would have to "keep blowing" and if the tone from the apparatus broke she would have to start over again.

It is hard to determine exactly how many attempts were made. The Court's best estimate is approximately 53. Most of them would trigger a tone from the instrument, however, her pattern was to blow for 1 or 2 seconds and then stop. The Court was carefully looking to see when any of the attempts approached at least the 5 second mark. The first 4 attempts clearly did not. The officer kept telling her she was not blowing properly and the mouthpiece was not completely in her mouth. He told her to blow like she was blowing out candles on a birthday cake, or blowing up a balloon. He also told her, "You're just puffing up your cheeks".

The fifth attempt was approximately 4 seconds however, she stopped blowing yet again. He told her she was not following what he explained to her. He explained it again.

It should be noted the officer remained quite "collected" during the investigation. At no time were any of his statements or comments accusatory, nor did any of his directions suggest she was "playing games". He was just trying to give her the benefit of the doubt and seemed to believe she was trying. He explained to her if she was doing it properly, however, it would only take a matter of seconds to provide a breath sample, as long as she blew continuously. Again, he told her he would tell her when to stop. After her next attempt, he told her she was not blowing at all. Attempts numbers 8 through 11 were no more than 2 or 3 seconds. She told him she was blowing for as long as she had breath.

The next two attempts were only for only 1 or 2 seconds. Again, she stopped blowing. He told her she had to maintain the tone. She responded with words to the effect, "That's all I have got. I'm no singer". Her next two attempts were also in the range of 2 to 4 seconds. Again, she stopped. He told her to take a deep breath and make a tight seal and just blow consistently until he told her to stop. The next three attempts were the same, stopping after approximately 2 seconds. She told the officer, "I'm no singer", followed by, "I thought I was blowing consistently".

Three more attempts were each in the range of 2 seconds. He officer told her calmly, but matter-of-factly, "Whenever you're ready, ma'am". He added "You're not providing a proper sample". She responded, "If I could blow like I sing on stage…". He told her not to allow air to escape out the sides of her mouth. He also told her she was stopping. Her next attempt was in the range of 4 to 5 seconds, however, she stopped yet again. He told her that once she broke the tone she had to start again. Her next attempt was for approximately 6 seconds. Finally on about number 24, after blowing for close to 10 seconds, this was deemed a suitable sample.

In between samples, while waiting the requisite period of time (17 minutes), he allowed her to use the washroom. He also confirmed she was not suffering any illnesses, was not under the influence of drugs and was not injured. When asked, she told him she had just come from Ryerson University. She left there at approximately 10:15 p.m. When he asked where she had been drinking, she responded, "I wasn't". He then asked her when she had last consumed alcohol. She asked if she had to answer these questions. He told her she did not. When attempting to obtain the second breath sample he explained she would have to do it again by providing a continuous breath and making a continuous tone. The next 7 attempts were no longer than 3 seconds each before she would stop blowing. He told her he could hear air escaping from the sides of her mouth. The next 3 attempts were all in the range of 2 to 3 seconds. The next was for 5 seconds, followed by 3 more of approximately one second each.

The officer remained very calm and did not get upset with her. There was no indication in his actions, demeanour or words that he was at all frustrated with her. He told her if she needed more instruction to ask him and he would advise her. He also told her he would advise when she had provided a suitable sample. He then told her whenever she was ready, to take a deep breath and blow, and not let any air escape out of the sides of her mouth. The next two attempts were in the range of 3 to 4 seconds. This was followed by yet another attempt of approximately 6 or 7 seconds. He commented at one point, "Oh, that was a good one." However, it was apparently not good enough because he asked her to continue. The next two attempts were approximately 4 seconds each.

The defendant then asked him, "Have you ever tried it". He responded, "Yes". She asked him how long he blew. He said 5 to 10 seconds, but told her she did not blow this long. She responded, "I did all the breath I had in me".

He then told her to take a deep breath and blow. Her next attempt was in the range of 8 to 9 seconds. She said, "Everything I had was this, okay?" He responded, "Nope". He again told her, "Whenever you're ready, ma'am. I can hear air escaping from the sides of your mouth".

Up to this point, there had been approximately 20 or more attempts made. The officer cautioned if she didn't provide a suitable sample she would be charged with refuse. The defendant appeared to be polite and asked the officer to show her how it was done for 5 seconds. He declined, but explained it verbally, yet again. He told her she had several opportunities to provide a suitable sample but had not.

She then made two more attempts of 2 seconds each. She asked him, "Is it good for you?" He responded, "It looks like you're blowing lightly." She then said, "Maybe if I blow harder but not as long…?" She then blew again, this time for approximately 4 seconds and asked, "Is that it?" The officer responded, "No". He then said, "This is your last opportunity. If not, you'll be charged". She made three more attempts of 4 or 5 seconds each. She then asked, "You got it?" The officer said, "No". Her response was, "Oh my goodness. I'm working with you. I'm doing the best I can. Is the first one sufficient for you? I can't change anything".

At this time he terminated the process and advised she would now be charged with refuse.

He told her the first sample she provided registered 164 (milligrams of alcohol in 100 millilitres of blood) which was more than twice the legal limit.

3:2 The Defence

3:2.1 Bernard Ukiri

He is the defendant's husband. He testified he was in his home office when the police rang the doorbell. He opened it partially and saw a uniformed officer. He was having a drink of cognac on ice at the time. The officer asked him who owned the BMW in the driveway. He responded, "My wife". The officer told him someone had reported an accident. He asked if his wife was home. He told the officer she just arrived and while she was in the washroom he poured her a glass of cognac. She was leaving for Jamaica the next day for a brief holiday. He agreed the officer never directed that he go and get the defendant. She came out of the washroom and walked toward the door on her own. She did not say anything to him about having been in an accident when she first came in. He then testified the officer was 2 or 3 feet behind him inside the house. He believed he was there for approximately 5 minutes before taking the defendant out. He was adamant he never invited the officer in. The officer never asked permission to come in. Initially, he did not realize the officer was walking right behind him. When the officer asked them to come outside to view the damage on the vehicle, he explained the defendant put on her own running shoes and had no difficulty doing so.

On cross-examination, he acknowledged he obviously did not want to see his wife in any type of legal trouble. He believed she had been home for approximately 5 to 10 minutes before the officer came to the door. He could not recall smelling any alcohol on her breath. He explained he would have known if she had been drinking earlier, although he acknowledged he did not ask if she had. He poured her 3 shots of cognac, the equivalent of 3¾ ounces, which she drank right away in 2 gulps. This took place in his home office. The door bell rang approximately 3 to 5 minutes later. The officer was at the door. He said someone reported an accident and then asked who owned the car in the driveway. Mr. Ukiri turned around to walk down the hall to ask the defendant. He closed the door slightly, although it was not completely shut. He did not tell the officer he was going to get his wife. He just left the officer there, so he thought. When asked why he did not call for his wife to come to the door he said at first, he didn't know where she was. He also wanted to speak to her first. He did not call out to her because their 3 year old son was asleep. He assumed the officer would stay outside. He did not ask him why he was inside the house. He stated the officer was not polite and was very abrupt. He expected the officer would use some "professionality", to use his word. The officer followed him along the hallway right up to the staircase and asked the defendant if she had been drinking as soon as he saw her. Mr. Ukiri recalls her responding, "Yes, just now". The officer then asked if she had been in an accident, to which she said, "No". He then asked for identification. The Crown suggested it must have been apparent to him the officer was now investigating a drinking/driving incident. He agreed he eventually realized this. When they went outside to look at the car, he could not notice any fresh damage, or any grass on the bumper. He told the officer if he was unable to observe anything, he and the defendant should be allowed to go back inside. He disagreed with the Crown's suggestion that neither he or the defendant drank any alcohol in the house; that he was changing his answers to cover up any inconsistencies; or that the defendant put on a pair of his shoes as she left the house to go and look at the car in the driveway. He also disagreed that the officer never went inside the house.

4:0 The Positions of the Parties

4:1 The Defence

[8] Counsel asks the Court to consider the following points:

1. The credibility and reliability of the various witnesses is pivotal in this case.

2. Regarding the substantive issues, the Crown has not proven identification beyond a reasonable doubt that the defendant was the operator of the subject vehicle. Furthermore, the Crown has not proven the essential elements of the offence of impaired operation beyond a reasonable doubt. Finally, the evidence does not show the defendant intentionally refused to provide a breath sample. Although the QBT had the discretion to accept the samples, the defendant continued to tell him she was trying her best. The Court should accept this.

3. Regarding the constitutional issues, there was a constellation of Charter breaches all happening simultaneously, which elevates the seriousness of the breaches as well as the impact of same on the defendant. Notwithstanding the public interest in having these types of cases heard on their merits, the evidence should be excluded under a s.24(2) analysis.

4. Counsel frames the constitutional argument as follows:

   1. Did the police enter the defendant's house without a warrant contrary to s.8?
   2. Did the officer questioning the defendant amount to a detention, breaching s.9?
   3. Did the officer breach s.10(a) by not advising her of the reason for detention?
   4. By failing to advise her of same, did this lead to a s.10(b) breach of her right to counsel?
   5. Did the officer have reasonable and probable grounds to arrest her or did he breach s.7 regarding security of the person?

5. Because of the warrantless entry, there was a s.8 breach. There was no waiver of that right. The officer was not in hot pursuit. The demand for her driver's licence as identification constituted a further s.8 breach. She was arbitrarily detained contrary to s.9, when she was directed to not only produce her licence but to come closer to the officer. The detention continued when he directed her to accompany him outside to examine the car. He only told the defendant and her husband he was there because of a traffic offence, not the real reason for his investigation. Accordingly, her s.10(a) and 10(b) rights were also violated. Since she was arrested for impaired operation without reasonable or probable grounds, she was legally entitled to refuse to provide a breath sample on this basis alone.

6. Counsel acknowledges the onus is on the defendant to demonstrate, on a balance of probabilities, that her Charter rights have been breached. The following points should satisfy this burden:

   • The highest degree of privacy is expected in one's home.
   • The officer entered the defendant's home without any legal justification sufficient to trump this privacy interest.
   • The scope of police powers in these circumstances is extremely limited.
   • The officer did not have a warrant.
   • Ordinarily, counsel would not challenge the common law power of police to investigate 911 calls, however, it clearly depends on the context. There were no exigent circumstances, nor was this a situation of being in hot pursuit.
   • The control exercised by the officer over the defendant in her own house constituted a detention. The officer had precious little, if any information about the subject vehicle being involved in an accident. He did not make any direct observations of any damage other than believing there may have been some dug up grass in the vicinity. Accordingly, a nexus has not been established.
   • This was a mere ruse by the officer. He had not obtained any information whatsoever from the civilians about the subject vehicle having hit anything or been involved in an accident. Therefore, there was no common law duty to search, as there was no legitimate law enforcement purpose.
   • Accordingly, this was a trespass situation.
   • The defendant was detained in her own house which then continued on to the driveway. When she decided to leave and go back into the house, the detention became a de facto arrest.
   • Her s.10(a) right was breached because she was not advised why she was arrested.
   • Her s.10(b) right to counsel ought to have been triggered immediately. Although she initially declined when told she could call any lawyer she wished, the standard to establish an informed waiver of the right to counsel is extremely high. The officer merely forged ahead without any further informational or implementational steps being taken to put her in touch with counsel. She even had phone numbers for them. The police also ought to have held off any further investigation until she had spoken with counsel.
   • The officer did not have reasonable or probable grounds to effect an arrest. Although he may have had the necessary subjective grounds, these were not objectively tenable.
   • On a s.24(2) analysis, several breaches make this a serious matter and one where the Court should dissociate itself from such state misconduct. This had quite an impact on the defendant. She was coming from the washroom, an area which is inherently deserving of privacy. There was no meaningful effort made by the officer to facilitate her reaching her first counsel of choice. Although the third factor regarding societal interest in hearing these matters on their merits is important, the Court should ask whether or not the evidence from all the witnesses is reliable and whether the truth-seeking function would be better served by admitting the evidence.

7. Most significantly, the evidence of Cst. McIntaggert should be impeached. His reliability and credibility as to whether he went into the defendant's house or not is suspect. In fact, the evidence suggests he did not deny this, but merely stated he could not recall. This is a very unusual response to something so critical. The Court should note that Mr. Ukiri, on the other hand, was adamant that the officer did come into the house. He was not shaken on cross-examination in this regard. A non-exhaustive list of flaws in the officer's evidence includes the following:

   • He gave misleading evidence. He employed two streams of investigation. He was deceitful in not telling the defendant he was investigating an impaired driving incident, but merely asked her to come outside to check for damage on the car.
   • He testified he could see the defendant coming from the washroom inside the house while he was standing at the door. However, photograph exhibits 3A and 3B show it would be impossible for him to have seen the washroom from this vantage point.
   • He testified when he first spoke with the defendant inside the house she slurred 50% of her words. However, the evidence suggests all she said to him was the word, "Earlier" when asked if she had consumed any alcohol.
   • He inflated his observations of impairment. The Court should compare his evidence to that of Cst. Okposio who said nothing about the defendant being unsteady on her feet. Furthermore, upon a careful review of the video/DVD, this piece of independent evidence shows no obvious signs of impairment exhibited by her.
   • He was not being sincere and honest but elusive. Given his lack of recall, this was deliberate, disingenuous and convenient. His purpose was to mislead the Court.
   • At times he appeared to be obstructionist. As an example, counsel asked him how long he had been speaking with the dispatcher before arriving at the defendant's house. He gave an answer that was not responsive. Counsel asked if he understood the question, to which he responded, "Perhaps I did, perhaps I didn't". This was a puerile answer from one who is supposed to be a professional witness. When describing indicia of impairment, he tended to use "typical" language. When pressed on cross-examination he vacillated and appeared uncertain as to what he actually observed.
   • There were often no references in his notes about what he testified to at trial.
   • There was often hesitation in some of his responses.
   • His testimony was in the nature of "back-filling" gaps in the information on which he based his observations.

8. The Court should also be suspect of the reliability of the two civilians. The inconsistencies were more than mere minor ones which are to be expected. Rather, they were material matters about which honest witnesses would not likely be mistaken. This shows a carelessness with the truth. Mr. Young-Michaud testified, for example, he saw someone get out of the car on the passenger's side and for the first time saw it was a female. He originally indicated the individual got out of the driver's side. He was under no pressure when giving this evidence. When pressed, however, he gave several explanations including the officer wrote down what he said incorrectly, he merely made a mistake, or the officer misheard him. In any event, they colluded in an effort to make their evidence consistent with one another. They had ample time to do so. Nonetheless, despite their efforts, there were at least 3 different versions of what happened while they were at the traffic lights while following the subject vehicle. One version is that it was in the right lane off highway 427 and then cut across all lanes of traffic. There was also an indication it was the lead car, and yet another version that there were 2 or 3 cars in front of it. Mr. Quattrociocchi testified the subject vehicle stopped at a green light and then decided to go as it turned red. He then testified he decided to call 911 because he now believed the driver was impaired. He also testified he stayed on the line with the operator until the police showed up. However, on cross-examination, when it became apparent the 911 call was going to be played, he changed his evidence and acknowledged it was not he, but his friend who called.

4:2 The Crown

[9] The Crown made submissions following the five Charter areas identified by the defence (in paragraph 8, at point #4) as follows:

4:2.1 Did the police enter the house without a warrant contrary to s.8?

[10] The facts must first be established by the applicant. However, there is no direct evidence from her in this regard. The Court is left to consider only the evidence of her husband, Mr. Ukiri. However, his evidence is suspect, and is both externally and internally inconsistent. Therefore, a s.8 breach has not been established on a balance of probabilities. He initially testified the police attended the residence 15 to 20 minutes after the defendant came home. He then changed his evidence on cross-examination to say it was 5 to 10 minutes. At no time did he ever make reference to noting times according to a clock or a watch. This shows that his evidence changed whenever it was necessary to do so. He even refused to admit he could ever have been in error. One of the civilians testified it was only 1 to 2 minutes, while the second said it was less than 10. This is rather telling when evaluating his credibility. This should also be considered against the evidence given by both civilians, who at least acknowledged they could have been in error regarding some of their observations. He also testified the officer was in the home for approximately 5 to 10 minutes. Yet, he acknowledged the officer only ever asked one question about whether the defendant had been drinking, and it may have been only 2 or 3 minutes for her to have taken her driver's licence out of her purse. He also testified he saw the defendant put her shoes on before she left the house, and yet he could not recall anything else about what she was wearing, including the colour of her pants. He was absolutely adamant the defendant had nothing to drink beforehand. The Crown asks, rhetorically, how could he know? This type of response surely puts into question his credibility. The Court, of course, should be mindful of the evidence of Cst. Okposio, who testified as to the numerical reading of the first breath sample (164). In the final analysis, the Court cannot find as a fact that Cst. McIntaggert went inside the house. The Court should accept his evidence on this point. This is supported by the evidence from Mr. Young-Michaud, who testified he never saw the officer enter the house. The Court should consider the evidence of the two unbiased civilians who had no vested interest in the matter, or its outcome. Therefore, the Crown submits a s.8 breach has not been established.

4:2.2 Did the officer questioning the defendant amount to a detention, breaching s.9?

[11] When considering the analysis set out in the cases of R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 and R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33, although there can be a psychological as well as a physical detention, not every encounter amounts to a detention, thereby triggering s.10(b). It clearly depends on all the circumstances. When Cst. McIntaggert first arrived, he was conducting an investigation about a possible impaired driver and did not yet have reasonable and probable grounds. Mr. Ukiri was cooperative and endeavoured to bring the defendant to the front door. Therefore, there was no need for the officer to go inside as Mr. Ukiri was going to get her anyway. Once she came to the door, she exhibited unusual behaviour consistent with impairment. However, at this point she was still not detained. The officer was not in any way abusive or aggressive, and merely asked her a question about her drinking and her driving. The Court should also consider there has been absolutely no evidence from the defendant as to how she was feeling or thinking, when determining whether or not she was detained. The Court should also note Mr. Ukiri testified he walked outside with the officer because he was curious as to whether there was any damage to the car or not. There was no evidence the defendant herself felt compelled or otherwise had no choice but to come outside with the officer. Therefore, the officer was still at the preliminary questioning stage. This does not constitute psychological detention which would trigger s.9 or 10 rights. The Court should also note that after looking at the car, the defendant then tried to leave to go back inside. This shows she must not have felt psychologically detained.

4:2.3 Did the officer breach s.10(a) by not advising her of the reason for detention?

[12] The Crown submits he properly advised her.

4:2.4 By failing to advise her of same, did this lead to a s.10(b) breach of her right to counsel?

[13] The Crown submits it did not.

4:2.5 Did the officer have reasonable and probable grounds to arrest her or did he breach s.7 regarding security of the person?

[14] There must be both a subjective and objective dimension to reasonable and probable grounds. Cst. McIntaggert received information from a radio call about a possible impaired driver. He was entitled to rely on such hearsay evidence, given its temporal nature and threshold reliability. He then obtained information from the civilians about a description of the suspect. He understood a female had just got out of a car. She was unsteady on her feet and in a hurry and had just entered the house minutes before. He then observed her while standing at the door approximately 10 feet away. He could smell the odour of alcohol and observed her swaying from side to side. He observed her eyes to be red-rimmed and watery. The Court can rely on his evidence because it is corroborated by both civilians who said she walked or stumbled like an old lady. The standard of achieving reasonable and probable grounds is not an onerous threshold. Therefore, the Court should find there was no ss.7 or 8 breach.

[15] In the alternative, if the Court finds there were Charter breaches, the evidence should not be excluded under a s.24(2) analysis. Regarding the seriousness of any breaches, the police were not abusive or aggressive. Any Charter breaches were minimally intrusive. There is obviously a strong public interest in having this type of case adjudicated on its own merits.

[16] Dealing with the non-Charter issues, regarding the refuse breath sample charge, it is clear the defendant had no intention of complying. She did not make her best efforts. Although she claims she was out of breath, there was nothing to indicate this on the video/DVD. There was no evidence of her coughing, for example. It is clearly within the reasonable discretion of the QBT to reject breath samples if they are not suitable. The officer had already obtained a reading on one of the samples and was endeavouring to obtain a second sample that was in numerical agreement with the first. There are a number of criteria as to what constitutes a suitable sample. The duration or length of the blowing is one factor. However, the force used, referred to as the slope, is also an important consideration. The Court must also carefully consider the defendant's demeanour throughout her efforts to provide samples. She was being sarcastic, stating for example, if she could provide a sample she would be a singer or on-stage. She then laughed.

[17] Regarding the impaired operation charge, the standard of even slight impairment set out in the case of R. v. Stellato, [1993] O.J. No. 18 has been met. The Court should feel safe in relying on the evidence of both civilians. Although their evidence is in some parts different, this should confirm they were not colluding. The Court should also note they are not professional witnesses. There was nothing about their evidence which demonstrates a carelessness with the truth. Their observations, coupled with the officers' makes it clear.

5:0 Analysis

5:1 Issue 1 - Has the Crown proven the identity of the suspect driver beyond a reasonable doubt?

5:1.1 Identification – General Principles

[18] Identity may be proven by either direct or circumstantial evidence, or a combination thereof.

[19] The direct evidence of eyewitnesses to an offence is usually thought to be preferable to circumstantial evidence. However, it should be noted that many significant injustices have been on the basis of direct evidence.

[20] Eyewitness identification of a stranger raises an alert as to the well-recognized dangers inherent in such evidence, and the risk of a miscarriage of justice through wrongful conviction.

[21] Evidence as to identity based on personal impressions, however bona fide, is perhaps of all classes of evidence the least to be relied upon. Therefore, unless supported by other facts, it may be an unsafe basis for a finding of guilt.

[22] The Court must, therefore, be cognizant of the inherent frailties of identification evidence arising from the psychological fact of the unreliability of human observation and recollection.

[23] It is essential to recognize it is generally the reliability, not the credibility of eyewitness identification which must be suitably established. The Court cannot equate or mistake certainty for accuracy.

[24] There are, therefore, judicially-created "checklists", or badges of unreliability. The more obvious are the following:

1. was the suspect a complete stranger or known to the witness or witnesses?
2. was the opportunity to see the suspect a fleeting glimpse or something more substantive?
3. was the setting conducive to accurate observation (that is, in darkness or in daylight, or was there eye-to-eye contact)?
4. was the sighting in circumstances of stress?
5. did the witness commit the description to writing, or report it to the police or other authorities in a timely way?
6. is the description generally, generic, or vague, or is it detailed including distinctive features of the suspect of his/her clothing?
7. has the witness described a distinguishing feature of the suspect not shared by the accused, or conversely, did the description fail to mention a distinctive feature?
8. is the identification confirmed or corroborated?
9. were there intervening circumstances capable of tainting or contaminating the independence of the identification from the time of the initial sighting and the rendering of the descriptive account to the police or the Court? In other words, is there any suggestion or assistance given, or bias created either directly or indirectly, or was anything conveyed to the witness by the authorities or others that the person was a suspect?

[25] It is, of course, of assistance to look to the existence of compelling confirmatory evidence of identification to assess the safety of a finding on this issue. Obviously, if it is absent, this may affect the cogency and make the evidence suspect. Some differences, alone, or even in combination, may be of little probative value, provided that, on the totality of the evidence, the requite standard of proof beyond a reasonable doubt is discharged.

5:1.2 Application of the Principles to the Evidence

[26] The Court has carefully considered the factors which could potentially undermine the reliability of the identification evidence.

[27] The Court is quite satisfied both civilian witnesses accurately made the observations they did. They did not exaggerate. They both appreciated the solemnity and importance of the event and were able to maintain continuity in following the subject vehicle which was never out of their sight until it stopped at the subject residence. Their observations were not merely fleeting. Although some might have been made under an element of stress, given the manner of driving displayed by the suspect, this was not so harrowing an experience that it distorted their powers of observation. Furthermore, the description of the actions and movements of the suspect were being reported in real time as they followed the vehicle over an extended period of time and distance.

[28] The Court is also satisfied there was no collusion between the two civilians, or that this was somehow a mere vendetta against the defendant for driving in a manner that almost caused them to be in an accident. The Court also finds that this was not a "pay-back" for a "road rage" situation.

[29] Having considered the substance of the evidence of both witnesses, in addition to their demeanour, which is only one factor in the analysis, the Court finds they each testified independently and used their own words and descriptors while doing so. Neither of them were merely following a "script". The Court was not left with the impression they had "put their heads together", so to speak, to concoct a story to "frame" the defendant.

[30] The Court has also considered the apparent inconsistencies in their evidence, particularly where they initially thought the suspect was a male. The Court accepts the explanation, however, that the inference drawn was because of the way in which the suspect was driving, suggesting that males are more predisposed to driving in this manner. Furthermore, the Court accepts the explanation of initially saying the female got out of the driver's side. This inconsistency, by itself, is really of no moment. The evidence is otherwise so overwhelming to render this as either a mistake or an oversight. In any event, it is one that does not affect the overall integrity of the identification evidence.

[31] Accordingly, the evidence clearly supports the finding the defendant was the driver. Of course, in the larger context, considering the evidence of Mr. Ukiri about his wife having just arrived home, is in harmony with the inference the defendant had recently been driving.

5:2 Issue 2 – Did the police have reasonable and probable grounds to arrest the defendant for impaired operation?

5:2.1 Reasonable and Probable Grounds – General Principles

[32] This does not amount to a prima facie case.

[33] It does, however, have a subjective and objective component.

[34] The officer must have an honest belief the suspect committed the offence, while this must be supported by objective facts. This is satisfied when a reasonable person, placed in the position of the officer, would conclude there were, indeed, grounds for the arrest.

[35] Quite often, an officer's decision to arrest must be made quickly, in volatile and rapidly changing situations. He must make his decision based on available information which is often less than exact or complete. Judicial reflection is not expected.

[36] However, while reasonable and probable grounds must not be inflated to the context of testing trial evidence, neither must it be so diluted as to threaten individual freedom.

[37] The officer must, therefore, conduct the inquiry which the circumstances reasonably permit. He must take into account all information available to him, and is entitled to disregard only information which he has good reason to believe is unreliable.

[38] There is no necessity the defendant be in a state of extreme intoxication before the officer can form reasonable and probable grounds to arrest.

[39] Given the legal test that impairment may be established where the Crown proves any degree from slight to great, reasonable and probable grounds exists as a fact-based exercise, depending on all the circumstances of the case.

[40] Courts are often improperly asked to engage in a dissection of the officer's grounds, looking at each in isolation. However, an assessment does not involve the equivalent of a "scorecard", with a list of all the usual indicia, noting which ones are present and which are absent.

[41] There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively exists.

[42] There is also no minimum time period, nor mandatory questioning that must occur.

[43] A trained officer is entitled to draw inferences and to make deductions based on experience.

[44] Furthermore, an officer is entitled to rely on hearsay information from civilians, as long as this is confirmed by his own observations.

[45] The important fact is not whether the officer's belief was accurate, but whether it was reasonable at the time of the arrest. That the conclusion was drawn from hearsay, incomplete sources, or contained assumptions, will not necessarily result in its rejection based on facts that emerge later. What must be assessed are the facts as understood by the officer when the belief was formed.

[46] Therefore, the issue is not whether the officer could have conducted a more thorough investigation, but whether it was reasonable in the circumstances.

5:2.2 Application of the Principles to the Evidence

[47] The Court finds, in all the circumstances, the officer's actions and decisions meet the appropriate threshold test. They were reasonable, both subjectively and objectively. He was not required to accept what he was told by Mr. Ukiri, for example, that he had just poured the defendant a glass of cognac, which may have accounted for the odour of alcohol detected by him. Furthermore, on the strength of the detailed observations made by both civilians a matter of minutes before, this enhanced the reasonableness of his investigation. His further observations and dealings with the defendant outside on the driveway completed his ability to form his grounds.

[48] Accordingly, the Court finds there were ample grounds for the arrest.

[49] This determination is made assuming there were no Charter breaches, or if there were, the evidence is still saved under a s.24(2) analysis.

5:3 Issue 3 – Has the Crown proven the essential elements of impairment beyond a reasonable doubt?

5:3.1 Impairment – General Principles

[50] The case of Stellato, and others, supports the proposition that evidence establishing any level of impairment is sufficient proof of this offence. The Stellato case specifically rejected the assertion that proof must be a marked departure from the norm. Therefore, if the Crown proves the defendant's ability to operate a motor vehicle was even slightly impaired, this is sufficient. The Court must be satisfied, however, that there can be no other reasonable explanation or conclusion.

[51] Slight deviations, standing alone, do not likely constitute proof beyond a reasonable doubt. The Court must advert to the possibility that the evidence is so frail as to raise a reasonable doubt.

[52] Two lines of defence are often advanced. The first is that many of the alleged indicia are simply evidence that the defendant was merely consuming alcohol, which of course is not illegal. Therefore, factors such as red watery eyes, or the odour of an alcoholic beverage on one's breath may not tell much about the impact of the alcohol on the ability to operate a motor vehicle.

[53] The second line of defence is that observations made by witnesses may often be equivocal, that is, uncertain or perhaps subject to one or more interpretations. The Court must be mindful of evidence which may establish other reasonable explanations for observed indicia, such as observations of bad driving.

[54] While individual factors may have other explanations, the presence of many or all of them at the same time, in the same individual, will often create more than a slight deviation from normal conduct.

[55] The Court should not merely consider each item of evidence in isolation, but must look at the totality, along with any unexplained observations to determine proof beyond a reasonable doubt.

[56] The Court must also consider not only observations consistent with impairment, but any evidence that might tend to show the defendant was not impaired at the relevant time.

[57] An opinion by a witness, either civilian or a police officer, must meet an objective standard of an ordinary citizen, or a reasonable person, in order to avoid the uncertainties associated with subjective standards, particularly when based on inferences.

[58] Furthermore, it should be noted that the evidence of a police officer is not entitled to any special consideration any more than any other witness. Officers are entitled, however, to rely on the cumulative impact of the various indicia and circumstances in forming an opinion as to the defendant's impairment. Although there may be a possibility of other explanations to account for physical indicia observed by officers, at the same time, it should not lessen the value of the observations made in supporting an officer's opinion, particularly when they are substantially corroborated or supported by a second officer.

[59] The Court recognizes that opinions regarding impairment can be fraught with difficulty. They are highly subjective, while the objective observations to support the opinions are often difficult to parse and describe. The Court must, therefore, carefully assess the probity and veracity of these claims by the various witnesses.

5:3.2 Application of the Principles to the Evidence

[60] The Court finds, on the totality of the evidence, the Crown has proven impairment beyond a reasonable doubt.

[61] The observations made by the civilians of "bad driving" over an extended distance are quite easily consistent with actions made by an individual while under the influence of alcohol. Although this factor by itself is not determinative, when added to all the other observations made about the lady getting out of the car as "waddling" or "stumbling", or moving in a "drunken" walk, like an "old lady" and losing her balance twice, solidify the inevitable and only common sense inference of impairment.

[62] Furthermore, the Court accepts the evidence of both officers. Neither one was merely going through the motions, so to speak, or making observations in a mechanical or perfunctory manner.

[63] Additionally, and independent of any further consideration of possible Charter violations, the observations made by Cst. Okposio are substantially confirmatory. The Court is satisfied he arrived at his opinion independent of Cst. McIntaggert.

[64] The Court categorically rejects the evidence of Mr. Ukiri, particularly on the points that he served the defendant a glass of cognac, and that the officer followed him inside the house as far as the staircase, or at all. The Court finds Mr. Ukiri was clearly biased, and prepared to say anything to absolve the defendant of any criminal liability. For him to have served her a drink is patently absurd, and defies common sense and credulity. The value of his overall evidence is severely discounted as a result of this transparent attempt to create a legal basis for a defence of post-offence consumption to account for any impairment.

[65] The Court carefully considered the defendant's actions and demeanour in the breath room as depicted in the video/DVD. Although many were not particularly consistent with impairment, there can be risks placing too much weight on a video when considering whether the defendant's ability to operate a motor vehicle at the time of driving was impaired by alcohol. As Justice Duncan stated in R. v. Golubentsev, [2007] O.J. No. 4608, impairment is not necessarily displayed in every action or step. It is common experience that those affected by alcohol will, from moment to moment, display some tell-tale signs of its influence, while at the same time, generally appearing or behaving in a normal manner. At moderate levels of impairment, a person can largely "keep it together", and perform most activities and functions but for occasional blunders and miscues.

[66] In conclusion, the Court does not have to determine the defendant was "falling down drunk" in order to be satisfied as to impairment. The Court finds this is not a situation where it would be dangerous to convict on what might be described as frail evidence.

5:4 Issue 4 – Did the police have the legal authority to enter on to the defendant's property and effect an arrest?

5:4.1 Ss.8 and 9 re: Arbitrary Detention and Search and Seizure – General Principles

[67] S.8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure.

[68] If the police activity invades a reasonable expectation of privacy, then the activity is a search.

[69] Individuals have a greater expectation of privacy in their dwelling house. Unauthorized presence of agents of the state in a house, therefore, can pose as the ultimate invasion of privacy.

[70] A search will be reasonable, however, if it is authorized by law, if the law itself is reasonable, and if the manner in which the search is carried out is reasonable.

[71] Warrantless searches are, prima facie, unreasonable and contrary to s.8.

[72] In the case of a warrantless search, the burden of persuasion shifts from the person asserting a violation to the Crown who must establish, on a balance of probabilities, that it was reasonable, pursuant to a right to search under either the common law or legislation.

[73] A long-standing common law exception to the requirement of obtaining a warrant is based on necessity or exigent circumstances. In situations of urgency requiring immediate attention, the police may be justified in making a warrantless entry into premises in order to protect or preserve life. In assessing this, the police must consider, although not to a nicety, the nature of the apprehended risk, the potential consequences of not taking protective measures, the availability of alternative measures, and the likelihood of the contemplated danger actually existing.

[74] Absent an express exclusion, there exists an implied licence to the public (including the police), engaged in a legitimate purpose, to approach and knock on the door of a dwelling house. In determining the scope of the activities authorized by the invitation, it is important to bear in mind the purpose of it, which is to facilitate communication.

5:4.2 Application of the Principles to the Evidence

[75] In the circumstances of the present case, the Court finds the following facts:

• The officer was no further than just inside the foyer.
• He was at a location where guests are ordinarily or usually greeted.
• There was a lower expectation of privacy that exists at the entrance to a house.
• He did not push or force his way in.
• This was not a trespass.
• There was no objection by the defendant or her husband. He was not told to leave.
• It was not a ruse. He was investigating both the possibility of there having been an accident and a drinking-driving situation.
• A detention did not take place until the defendant and her husband came outside with the officer at which time he had further dealings with her and made further observations which led to or confirmed his grounds for impairment.
• The officer fulfilled his duty to conduct a preliminary investigation to determine if there was any evidence of a criminal offence.

[76] It should be noted that the genesis of this whole scenario was as a result of police responding to 911 call. There is a public policy argument to be made, therefore, that the police, ab initio, had the authority to investigate.

[77] In this fact-specific exercise, the Court finds the officer acted in good faith. He had a subjective honest belief, objectively supported, to continue the investigation.

[78] It is not good policy to allow an individual who drives to rush home to avoid investigation. Such acts encourage people to be involved in high-speed chases. Furthermore, this would require police to spend valuable time and resources merely waiting outside a home until the driver returned to the street.

[79] The Court adopts the approach taken by Justice Duncan in Golubentsev. It was completely impractical for the officer to obtain a (Feeney) search warrant. Given the nature of the timing and timelines involved in drinking-driving investigations, it would be necessary for the police to act as quickly as possible to preserve evidence, considering the dissipation of alcohol from the body, and the opportunity to consume additional alcohol (or claim to do so), all of which renders immediate action imperative.

[80] It may also be impossible to obtain a warrant since it is doubtful one could issue under s.487 of the Criminal Code to search for a viewing of an individual to ascertain indicia of impairment, since this section applies only to "things".

[81] Furthermore, the policy against sanctuary from arrest, even within a dwelling, has been repeatedly recognized by the courts. The need to discourage a race to get "home-free", and the exigent need to preserve evidence, are as much present regarding suspects who make it in the door as it is to those stopped in the driveway.

[82] There cannot be a reasonable expectation of privacy when the defendant is merely trying to make it home before the police arrive, as if there is some magical "moat" that allows her to be immune from scrutiny.

[83] The Court finds the circumstances justified a warrantless search.

[84] In any event, the Court finds the police were not turned away or otherwise told to leave by the defendant or her husband. Therefore, there was a further implied invitation to remain at the door or to enter slightly into the residence in the foyer area.

[85] The Court appreciates the principle that a suspect cannot be presumed to invite the police to enter for the purpose of gathering evidence to substantiate a criminal charge against her and that this would constitute an impermissible search. However, the evidence in this case suggests a dual purpose which consisted of the investigation of a possible accident as well as a drinking-driving matter.

[86] Furthermore, it cannot be the police are required to tell a suspect (or anyone connected to one) at this point that they have a right to not talk to them.

[87] Accordingly, there has been no breach of ss.8 or 9.

5:5 Issue 5 – Did the defendant refuse or fail to provide a suitable breath sample?

5:5.1 Refuse – General Principles

[88] The Crown must prove the following essential elements:

1. There must be a proper breath demand.
2. There must be a failure or refusal to produce a required sample.
3. There must be an intention by the defendant to produce a failure or refusal.
4. Once raised by the evidence, the Crown must prove the absence of a reasonable excuse.

[89] The Court must be able to conclude in all of the circumstances that the officer provided a clear explanation as to how to blow into the device, and that the defendant was given an adequate opportunity to do so.

[90] What constitutes a refusal depends on all the circumstances in each case.

[91] The Court must not dissect each aspect of the investigation minutely, but must look at the entire context.

[92] In the final analysis, the Court must be satisfied the breath demand made by the qualified breath technician was clear and unequivocal, and similarly, the defendant's refusal or failure was the same.

[93] The Court must also not only evaluate that the officer held a subjective opinion there was a refusal or failure, but such option was objectively tenable. That is, any other reasonable officer, standing in the shoes of this particular one, would have arrived at the same determination.

[94] A reasonable justification or excuse refers to some matter that is extraneous to the existence of the central elements of the offence that justifies or excuses actions that would otherwise constitute it.

[95] The defendant carries the evidential burden of producing sufficient evidence of something that is capable of being a reasonable excuse. It is still arguable whether that burden is on a balance of probabilities, or merely by raising a reasonable doubt. For purposes of this analysis, the Court is satisfied only a reasonable doubt must be raised.

[96] Regardless, the Court must be satisfied there is an air of reality to the defence before it is obliged to consider and evaluate it.

[97] Once the evidentiary burden has been satisfied, however, the persuasive burden remains on the Crown. In order words, the Crown bears the ultimate responsibility of proving beyond a reasonable doubt the defendant did not have a reasonable explanation or excuse for refusing or failing to provide an adequate sample.

5:5.2 Application of the Principles to the Evidence

[98] The circumstances of this case are somewhat unusual.

[99] This is obviously not an outright refusal case. The video/DVD shows the defendant making at least 50 efforts to provide the requisite two breath samples.

[100] After some degree of difficulty she provided the first, which on its face suggests she was well over the legal limit. However, this does not constitute actual "proof" of same unless and until a second suitable sample has been obtained. It does support the inference, however, that she was quite capable of performing to the threshold level of it being a suitable sample.

[101] The Court appreciates that Cst. Okposio is entitled to exercise professional judgement and discretion as to when samples are deemed "suitable". This is not merely a function of mechanically taking a reading, whatever reading, off the screen of the intoxilzyer apparatus. It is obvious he was concerned about obtaining two readings numerically in "agreement" with one another. He was also trying to get her to provide a "deep lung" breath sample. This is a healthy and robust sample of one's breath from the recesses of the lungs, as opposed to a somewhat manufactured or mechanical sample, which is what he obviously felt the defendant was doing.

[102] There is no doubt he exercised great patience and forbearance in not becoming upset with her. Indeed, there were many times, to be sure, where she was trying to be "cute" with him, thinking she was somehow fooling him into believing she was trying her best, when she was not.

[103] Although there were a number of times where she blew for at least 5 seconds or more, the length of time is only one factor. The slope or force of the blowing is another.

[104] Delusion, deception, and deceit are frequently traits exhibited by those who are asked to provide a breath sample, realizing this constitutes an admission against one's legal interests. This is a reasonable inference for a Court to draw. The Court in the present case does so. In the overall context, the Court finds the defendant demonstrated many badges of guile including the following:

• Getting out of the car from the passenger's side knowing she was being followed.
• Telling the officers initially she wasn't driving or drinking, and later saying she had some alcohol "earlier".
• Trying to make it look like she consumed more alcohol in her house to account for the possible indicia of impairment, and by conscripting her husband to testify about this.
• Her statements of "grandeur" and attitude as if she was above the whole process.
• Her passive defiance in the breath room, feigning inability to provide a breath sample, and blowing just enough to make it look like she was.

[105] The Court accepts the evidence of Cst. Okposio, without hesitation, that he afforded every opportunity to the defendant to provide a breath sample, without success. He maintained his composure and treated her respectfully and professionally throughout the investigation. He truly and earnestly endeavoured to have her understand she had the legal obligation to provide a breath sample. He even told her it was her last chance or opportunity to provide a breath sample to remind her of the solemnity and finality of this exercise, and that a refuse charge was imminent.

[106] The Court finds she had no reasonable excuse to do so.

[107] Accordingly, the Court finds there was an intention by the defendant to produce a failure.

5:6 Issue 6 – If there were any Charter breaches, is the evidence saved under a s.24(2) analysis?

[108] If the Court is in error in the above-noted analysis, it is necessary to consider the revised approach to s.24(2) in Grant.

[109] The tripartite test has been revised to be a more flexible, multi-factored approach. There are no presumptions of admission or exclusion.

[110] The purpose of this section is to maintain the good repute of the administration of justice. This term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.

[111] It does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long-term, will be adversely affected by admission of the evidence.

[112] The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances, and the values underlying the Charter, would conclude the admission of the evidence would bring the admission of justice into disrepute?

[113] When faced with an application for exclusion, the Court must assess and balance the effect of admitting the evidence on society's confidence in the justice system, having regard to:

1. The seriousness of the Charter-infringing state conduct, noting admission may send the message the justice system condones this;
2. The impact of the breach on the Charter-protected interests of the defendant, considering admission may send the message that individual rights counts for very little; and
3. Society's interest in the adjudication of the case on its merits.

[114] The Court's role is to then balance the assessments under each of these lines of inquiry. No overarching rule, however, governs how the balance is to be struck. Mathematical precision is obviously not possible.

[115] Regarding the seriousness of the breach, there exists a continuum of unconstitutional departure from the minor, trivial, technical, or product of an understandable mistake, to wilful or reckless disregard. The more severe or deliberate the departure, the greater the need for the Court to dissociate from the fruits of the unlawful conduct. When considering the gravity of the offending conduct, the Court must consider whether it is egregious or a deliberate abuse of power. What must be determined is where along the "fault line" the conduct falls. Where the breach was committed in good faith, admitting the evidence may have little adverse effect on the repute of the administration of justice. In the present case, the Court finds the officer honestly believed he was acting within the law. This was not a situation of lack of training, or a systemic investigative technique used, merely hoping it would not be scrutinized by the Court. If there were multiple breaches of ss.7, 8, and 9, given their temporal nature the cumulative effect is not particularly overwhelming. Ss.10(a) and 10(b) breaches would not weigh in the calculus, as there is absolutely no evidence whatsoever of any such violations. The officer's actions were not oppressive. At worst, they were negligent, but do not amount to unacceptable police conduct. It is important to note the purpose of the inquiry is not to punish the police or reward the defendant, but to assure the public that the goals of the Charter have meaning. Given the nuanced state and the complexities in this dynamic and still unsettled area of the law, it is hard to imagine what the officer could have done even with more basic training or education.

[116] Regarding the impact of any breaches, this is also a fact-specific determination, examined from the perspective of the defendant. The degree of intrusiveness ranges from fleeting, transient or technical, to profoundly intrusive. The importance of these rights to the defendant is always a given, unless the evidence supports she, by her conduct, abandoned some or all of their value. The interference with the defendant's personal liberty cannot be dismissed in this case as merely minor. She was arrested, handcuffed, placed in a police vehicle and taken to the station and subsequently remained in custody for a significant period of time. On the other hand, it must not be forgotten that driving on public roadways is a privilege more than a right, and that this was a legitimate investigation, not triggered by a mere hunch or suspicion. The Court finds that any effect on the defendant was minimally intrusive. Furthermore, there was nothing demeaning or objectionable about the officer's manner. Furthermore, there was no evidence from the defendant regarding the impact any breaches may have had on her. The Court finds that the events of this incident occurred as a result of her driving her motor vehicle where her privacy concerns would not be as great. They continued into her home which she was using as sanctuary in an effort to avoid further investigation. This is a different zone of privacy as opposed to a scenario where someone is merely minding their own business, so to speak, at home and then being visited by the authorities.

[117] The third factor deals with society's interest in the adjudication of the case on its merits. The reliability of the obtained evidence is an important factor in this line of inquiry. The examination also considers the importance of the evidence to the prosecution and the seriousness of the offence or offences charged. However, this must not take on disproportionate significance. Drinking-driving offences are well-known as potential threats to public safety, and have been the subject of pointed comment by appellate courts for decades. Accordingly, this factor addresses whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence. This is the least complex and contentious of the three factors. The Court finds in the present case that an informed member of the public would view any breaches as minimally intrusive and the violations not egregious or flagrant. Accordingly, this third line of inquiry strongly supports the admission of the evidence.

[118] The final determination requires a case-specific balancing of all of the factors. Ultimately, the Court must be satisfied that the public has confidence in the competence of the police and in the fact they will not detain or arrest drivers without the requisite grounds. The public must also have confidence that police have the necessary skills and training to perform their tasks in accordance with their duties and responsibilities under the Criminal Code and the Charter. A true balancing will not exclude evidence simply because the majority of the findings in the three stages favour it. Rather, exclusion will occur if the Court finds that society, over time, will lose confidence in the willingness of the courts to recognize the value of, and protections afforded by the Charter, thereby bringing the administration of justice into disrepute.

[119] Accordingly, for all the above-noted reasons, the Court finds the public would not be shocked by the police conduct or practices, or be left with the impression that this was an unconstitutional detention and search.

6:0 Conclusions

[120] The Court finds there have been no Charter breaches. In any event, the evidence is saved under s.24(2).

[121] The Crown has proven the essential elements of impairment beyond a reasonable doubt.

[122] The Crown has also proven the essential elements of failure to provide a breath sample beyond a reasonable doubt.

Released: January 27, 2014

Justice S.R. Clark