Court File and Parties

Court File No.: 2811 998 Date: October 3, 2014

Ontario Court of Justice (Central East Region)

Between:

Her Majesty The Queen

K. Saliwonchyk, Counsel for the Crown

- and -

Patricia A. Wilkinson

N. Baker, Counsel for the Defendant

Heard: June 27, 2014, June 30, 2014, August 22, 2014, October 3, 2014

Ruling on Charter Applications and Other Issues

Block, J:

Facts

[1] On May 30, 2013 Durham Regional Police Constable Rendell was driving a marked police car on general patrol when he received the communication at 1323 advising him of an impaired driver in the vicinity of Consumers road and Thickson road in Whitby. He received information that a black Volkswagen Jetta Ontario license plate AMKK692 ran two red lights while driving at varying speeds and struck the curb. PC Rendell drove to the location and stopped the vehicle in question. A motorcyclist at the scene advised him that: "she's all over the road and stumbling".

[2] PC Rendell activated his emergency equipment to get the driver's attention. As he approached the driver side window the vehicle continued to roll slowly through the intersection. It took the driver, the accused Patricia Wilkinson, approximately 10 seconds to roll down her window in response to the constable's presence. She then started driving northbound on Thickson when the light turned green. PC Rendell smacked the window with his palm to get her attention and Ms. Wilkinson complied with his demand to turn the engine off.

[3] PC Rendell demanded the appropriate documentation and advised her that he was investigating an impaired driver report. She appeared to be in daze. When asked the date, she stated: "the 26th". He asked her where she was. She replied: "I'm going home sick from work". PC Rendell noted the odour of freshly burned marijuana in the vehicle. She identified herself and exited the vehicle on his demand. As she was walking to the rear of her car she stumbled into the corner and nearly fell on the roadway. She also nearly fell while walking up onto the sidewalk. PC Rendell testified that he could smell the very faint odor of alcohol in Wilkinson's breath. Although cooperative she was confused and struggled to answer questions.

[4] At 1335 PC Rendell decided that Ms. Wilkinson's ability to operate a motor vehicle was impaired by alcohol consumption and arrested her for impaired driving. He read to her the appropriate breath demand. PC Rendell was puzzled by the contrast of the faint odor of alcohol and the obvious, profound impairment. He contemplated the need for a Drug Recognition Expert and took steps to get one to the scene.

[5] At 1337 PC Rendell read the defendant her rights to counsel. She nodded up and down he asked her whether she understood her rights. She ultimately declined to speak to counsel. She did not respond to the subsequent caution. At 1338 he read her the breath demand to which she nodded her understanding. At 1344 he began driving Ms. Wilkinson to 18 Division and arrived at 1349.

[6] A female police officer, PC Burke, conducted a search of Ms. Wilkinson at 18 Division. The search followed the report to her of the odor of freshly burned marijuana in the car and the faint odor of alcohol. It was obvious to PC Burke that Ms. Wilkinson was impaired. Ms. Wilkinson was observed to speak slowly, she had droopy eyes, slow physical movements, she was unsteady on her feet, she appeared confused by instructions and took an inordinately long time to remove her jewelry. All of this created the suspicion that Ms. Wilkinson had drugs on her body. She kept her hands on the waistband of her pants. As a result, PC Burke was suspicious that contraband might be concealed in Ms. Wilkinson's clothing. She intended to search a fold in Ms. Wilkinson's waistband to see if drugs were concealed there. She did not intend to inspect Ms. Wilkinson's underwear nor examine her private areas. When asked to pull down her waistband to facilitate the search of that fold, Ms. Wilkinson pulled her pants farther than requested. PC Burke immediately told her to pull her pants back up.

[7] At 1400 she was paraded before Sgt. Dingwall. At 1434 PC Rendell handed custody of Ms. Wilkinson over to PC Harding, the breath technician for the test on the Intoxilyzer 8000c. He explained to her that he understood that she had decided not to speak to counsel but that she could change her mind at any point. It is common ground that there was no reiteration of the right to counsel after that point. There was no caution or any warning that Ms. Wilkinson did not have to answer questions regarding her personal health or drug use. Ms. Wilkinson then supplied breath samples that indicated she had no perceptible blood/alcohol level.

[8] At 1446 PC Harding made a DRE demand to Ms. Wilkinson and at 1508 he began the evaluation. He explained that the evaluation consists of physical tests and clinical measurements. He then performed the prescribed evaluation pursuant to s. 254(3.1). Before doing so, PC Harding asked a series of questions regarding Ms. Wilkinson's personal health. The apparent purpose of the questions was to rule out the possibility that health issues, unrelated to the ingestion of drugs or alcohol, might affect be responsible for some of the findings of the evaluation. As a result of the evaluation and the breath test result, PC Harding concluded that Ms. Wilkinson was impaired by reason of drug consumption.

[9] At 1608 he demanded a urine sample from Ms. Wilkinson, pursuant to s. 254(3.4)(a), which was provided at 1611. She was charged with impaired operation of a motor vehicle by drug at 1646. He believed the drug to be a central nervous system depressant.

Issues

[10] Counsel seeks a declaration from the court that Ms. Wilkinson's rights under sections 7, 8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms were violated. He asks for an order excluding evidence obtained as a result of these alleged breaches and, as well, relief under section 24(1) of the Charter.

Analysis

Right to Counsel – DRE Testing

[11] The applicant submits that she should have been re-advised of her right to counsel prior to the DRE testing. The repetition of rights to counsel has been discussed by the Supreme Court of Canada in the case of R. v. Sinclair, 2010 SCC 35. The court held that the repetition of section 10(b) advice is appropriate when non-routine procedures, like participation in a lineup or submitting to a polygraph, are introduced into the investigation following the initial access to counsel. The court held that these non-routine procedures would not generally be in the contemplation of counsel at the time of the initial consultation. That initial consultation is generally based on the expectation that police will seek to question the detainee. To fulfill the purpose of section 10(b) of providing the detainee with the information necessary to making a meaningful choice about whether to cooperate in these new procedures, a further consultation with counsel is necessary.

[12] Counsel argues that the transition from an objective, minimally intrusive breath test to a "much more subjective, intrusive physical testing including questioning, further detention and eventually a urine test is a significant change in procedure that triggered a second obligation to advise regarding right to counsel."

[13] I disagree. Ms. Wilkinson was advised of her rights to counsel on arrest. Before conducting the breath test Constable Harding advised Ms. Wilkinson that she had the right to consult counsel at any point before, during and after the breath test. The applicant chose not to consult counsel. Constable Harding's advice preceded the DRE tests by approximately 9 minutes. It is apparent from the video recording of her contact with Constable Harding, that Ms. Wilkinson was aware at the time of the breath test that the police were investigating impairment by drug as well as impairment by alcohol.

[14] I do not regard the progress from alcohol-related breath testing to the DRE process within the same investigation for impaired driving as being a transition to a "non-routine procedure" as described in Sinclair. The issue as contemplated by the Supreme Court of Canada requires that the accused face a significantly changed set of circumstances then that which existed at the time of the initial advice of her right to consult counsel.

[15] The transition from alcohol testing to drug evaluation in the context of a single investigation for impaired driving is entirely different than the new circumstances addressed by the Ontario Court of Appeal in R. v. TGH. In that case the police obtained a general warrant authorizing them to photograph a skin flap on the anus of the appellant 10 months after his arrest and the original exercise of his right to counsel. Obviously, that particular form of investigation was not contemplated by counsel at the time of arrest.

Change of Jeopardy

[16] The applicant submits that she should have been re-advised of the right to counsel before the DRE process because of a change of jeopardy. Again, I disagree. There is a long line of authority going back to the decision of the Supreme Court of Canada in R. v. Black. The duty to re-advise a suspect of their right to counsel because of a change of jeopardy arises when the suspect is facing a different and more serious crime than at the time of the initial advice. In my view there is no meaningful or substantial difference in criminal jeopardy between the different ways a person may commit the offense of impaired driving.

Waiver of Right to Counsel

[17] The applicant submits that the issue of waiver was engaged when she asked Constable Harding "do I need a lawyer?" some three minutes after he made the DRE demand. The audio on this portion of the video is indistinct. Constable Harding testified that the applicant asked if she needed a lawyer once the testing was complete. There is no evidence to contradict him or to suggest that the applicant misunderstood her right to counsel or that she had withdrawn her original waiver of her opportunity to speak to counsel. Ms. Wilkinson did not testify.

Right to Silence – Health and Drug Questions

[18] Counsel argues that evidence of the health and drug-related conversation between Constable Harding and Ms. Wilkinson during the DRE process was obtained in violation of the s. 10(b) of the charter. Crown counsel is correct in his observation that this issue is not a genuine right to counsel issue but a right to silence issue protected by s. 7 of the Charter.

[19] R. v. White, [1999] 2 SCR 417 established that a suspect has a right not to incriminate themselves through the introduction into evidence of a statutorily compelled statement. The gist of counsel's argument is that no advice was given by the police to warn Ms. Wilkinson that the personal health and drug use questions were not a statutorily compelled or, indeed, part of the evaluation. It may be that the applicant assumed that Constable Harding's questions were a component of the compelled DRE testing. However, there is no evidence from which I can conclude that this is so.

[20] The other difficulty with this argument is that there is no statutory compulsion for the questions and answers in question. Had the applicant taken advantage of her right to counsel she may well have been advised not answer these questions.

[21] The onus is on the applicant to establish a breach of her right to silence. If I am incorrect, there would be no need to conduct a s 24(2) analysis. The appropriate course would be to simply exclude from evidence the conversation in question.

Search of Person – Waistband

[22] Counsel argues that the inspection of Ms. Wilkinson's waistband was a strip search within the meaning of R. v. Golden, 2001 SCC 83. I disagree. Constable Burke had no intention of inspecting Ms. Wilkinson's private areas or undergarments when she decided to investigate a lump in the area of Ms. Wilkinson's waistband. Ms. Wilkinson exposed her undergarments and legs above the momentarily, apparently as a result of her misunderstanding of Constable Burke's instructions or perhaps because she was so impaired she lacked the control to execute them. Constable Burke's response to Ms. Wilkinson's momentary exposure was to instruct her to immediately pull her pants back up.

[23] It is clear that the search was not the result of a routine practice. The nature of Ms. Wilkinson's obvious impairment suggested drug ingestion to at least three of the constables who dealt with her. Constable Burke noted that Ms. Wilkinson appeared to be using her hand to conceal a lump in her waistband. The Constable was concerned that Ms. Wilkinson was secreting contraband in her clothing. Given the circumstances of her arrest, this was a reasonable concern. Constable Burke acted on her concern in a reasonable way. She did not conduct a detail search of Ms. Wilkinson, though this might well have been appropriate. She limited her search area of Ms. Wilkinson's clothing where suspected contraband might be located. The action was appropriate, cautious and carried out in a manner that impacted Ms. Wilkinson to the least possible extent. I find no breach of the Charter in this conduct.

Reasonable and Probable Grounds for Arrest

[24] Counsel challenges the existence of reasonable and probable grounds for the original arrest. He argues that Constable Rendell's belief that the applicant's impairment was caused by alcohol alone or a combination of alcohol and drugs was objectively unreasonable. He appears to argue that the initial uncertainty as to the cause of Ms. Wilkinson's obvious profound impairment leaves open the rational possibility that she was impaired by some other unstated cause unrelated to the voluntary ingestion of drugs or alcohol. In my view there is no evidence to support this proposition.

[25] That Rendell found the applicant in a highly impaired state is beyond contest. There were multiple observations which reasonably lead to Wilkinson's arrest. Suffice it to say, Ms. Wilkinson's driving was bizarre and appalling, she had great difficulty following direction, she couldn't walk or stand properly, her dexterity was compromised, her car smelled of freshly burned marijuana, she performed all physical actions very slowly and she exhibited a great deal of confusion. "In the words of Constable Burke "she seemed out of it". Constable Rendell was required to consider the contrast between the obvious impairment and the faint smell of alcohol. That contrast reasonably inspired in Constable Rendell the belief that drugs may be involved as well as alcohol.

[26] The law does not require paralysis when it is unclear to the police whether alcohol alone, alcohol in combination with drugs or drugs alone are the agents of impairment. The law does not regard this kind of investigation as a multiple-choice examination inquiring an instant, perfect answer. In the absence of any shred of evidence suggesting illness or injury, Constable Rendell's belief that he had grounds to arrest and to make a breath demand was objectively reasonable.

Grounds for DRE Demand

[27] In my view the grounds for a DRE demand became stronger once the Intoxilyzer test eliminated the possibility that alcohol was the source of impairment. As there was no evidence to suggest that illness or injury was the cause, the only reasonable conclusion available to PC Harding on the information he had before him was that Ms. Wilkinson was impaired by reason of drug use.

Police Observations During Investigation

[28] The additional observations of Ms. Wilkinson by Constable Harding during the DRE tests are unobjectionable. Police officers are entitled to make observations during the course of their investigation. It matters not whether the phenomena observed ultimately assist the court in making the ultimate determination. Observations are generally not seizures.

Timing of DRE Testing

[29] Counsel submits that the DRE testing was not taken "as soon as practicable". The focus of his submission is the 16 minutes that elapsed after Constable Harding finished the last calibration check on the Intoxilyzer at 14:15 and before Ms. Wilkinson was brought in for the breath test.

[30] Constable Harding did have an explanation for this apparent gap. He had to wait approximately five minutes for the instrument to be ready to conduct the breath test. He had to print the results of the calibration check and speak with Constable Rendell. He took a few moments to locate Constable Rendell as he was unfamiliar with 18 Division. He had to receive grounds for arrest from Constable Rendell. He had to organize documentation related to this investigation. It is clear that the period of time concerned was occupied with police activity in relation to this investigation. In my view the test was performed as soon as reasonably possible. I would not give effect to this submission.

Conclusion

[31] I dismiss the Charter applications on the basis that no breaches occurred.

M.S. Block, Justice