ONTARIO COURT OF JUSTICE

DATE: 2014-11-06

COURT FILE NO.: Halton 11-2776

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

CODY TYLER SMITH

Before: Justice L.M. BALDWIN

Heard on:

• April 16, 2013
• October 7, 2013
• December 12, 2013
• April 25, 2014 (s. 8 and s. 10(b) Charter rulings delivered orally)
• May 2, 2014 (submissions heard on s. 8 Charter Application)

Reasons for Judgment released on: November 6, 2014

Counsel:

• Maureen McGuigan, for the Crown
• Doug Lent, for the defendant Cody Tyler Smith

BALDWIN J.:

Introduction

[1] This Judgment contains Rulings on Charter Applications alleging violations of s. 7, s. 10(b) and s. 8 and Reasons for Judgment on the trial at large.

[2] The Applicant is charged with Impaired Operation and Over 80 arising out of an incident which occurred on August 3rd, 2011 in Burlington.

[3] The Applicant alleges that his s. 7 and s. 10(b) Charter rights were infringed and he claims for s. 24(2) remedies to exclude all verbal statements made to police officers and the breath testing results.

[4] The Applicant bears the onus of proof on a balance of probabilities on both Applications. The Applicant did not file an affidavit, nor did he testify on these Applications.

[5] The Applicant further alleges that his s.8 Charter rights were violated as Officer Vittie did not have reasonable and probable grounds to arrest him for impaired driving.

[6] The onus is on the Crown to establish on a balance of probabilities that the officer had reasonable and probable grounds for an arrest because the seizure of the Applicant's breath samples is a warrantless search and seizure: R. v. Haas (2005), 200 C.C.C. (3d) 81; 76 O.R. (3d) 737 (Ont. C.A.).

Evidence heard on the Charter Voir Dires: (blended as to trial at large)

Witness #1 - Testimony of Joseph Grist

[7] Mr. Grist is a professional transport truck driver. He witnessed the erratic driving of the black Dodge Ram 1500 pick-up driven by Mr. Smith on the QEW. He witnessed Mr. Smith crash into a barrier travelling Niagara bound on the QEW at the QEW/403 split.

[8] Mr. Grist called 911 and provided details of what he observed. Mr. Grist spoke to Mr. Smith at the scene and awaited the arrival of police.

[9] Mr. Grist testified that he has been a professional truck driver for 6 years.

[10] On August 3rd, 2011 he was operating a tractor trailer combination which was pulling two fully loaded trailers with a combined weight of 41,512 pounds.

[11] Mr. Grist started his duties at the Brampton yard at 1:00 a.m. on the morning in question. He left the truck yard 1:20 a.m. heading to his regular fuel stop in Stoney Creek, before travelling on to Tonawanda, New York for his usual run.

[12] At approximately 1:40 to 1:50 a.m., he was on the QEW Niagara bound heading toward the QEW/403 split.

[13] On the QEW, after Walkers Line and just before Guelph Line, he was pulling into the third (left) lane to be in the proper lane to make the switch to continue Niagara bound on the QEW. At this point he observed the pick-up truck driven by Mr. Smith.

[14] Mr. Grist was travelling at his top speed of 105 kilometers per hour at the time.

[15] As Mr. Grist was preparing to make the lane change, he saw Mr. Smith's pick-up truck coming up on the left side of him in his mirrors. Mr. Grist decided not to change his lane until the pick-up truck had passed. Then the Smith truck changed into the lane behind Mr. Grist. Mr. Grist made his lane change.

[16] The Smith truck passed Mr. Grist on the right side. The Smith truck came really close to the front of Mr. Grist's tractor trailers and changed lanes in front of him. Mr. Grist testified that the Smith truck was travelling at a speed between 115 to 125 kilometers an hour as it passed him (posted speed limit is 100 k/hr).

[17] The Smith truck went across the first lane and halfway into the HOV lane and then pulled back. Mr. Grist observed the Smith truck continue down the highway swerving between the two lanes from the left to the right.

[18] The Smith truck was not signalling the lane changes. Mr. Grist testified that the swaying back and forth from lane to lane was erratic. Mr. Grist observed the Smith truck to do this multiple times.

[19] Mr. Grist testified that he felt that the driver was quite possibly impaired and he decided to call the OPP as soon as he passed the Brock Road* turn off. "That's a dangerous turn and I did not want to be on my cell phone through that turn." *This should be Brant Street, not Brock Road as transcribed.

[20] Mr. Grist detailed what he observed as both trucks approached the split where the QEW goes to the left and the 403 goes to the right.

[21] "The vehicle had accelerated ahead of me. He must have been 80 to 100 feet ahead of me. And as we got into the two lane section of that split, continuing QEW Niagara bound, I observed the driver continuing to go into the left and into the right lane. He went into the left lane at one point and got far into it and then pulled to the right really hard. He hit the rumble strips and continued straight and hit the crash barrier right at the beginning with the passenger side of his pick-up truck…When he hit it, he took out the barrels, took out the metal part of the barrier and went into the left lane, hit the ditch and then came back in there and came to a complete stop in the right lane."

[22] Mr. Grist got on the brakes of his transport truck at the time. He was concerned about getting his tractor trailers stopped. As he was braking, he could see a lot of dust and smoke from the crash and sparks from the undercarriage of the pick-up as it slid to a complete stop in front of his tractor trailers.

[23] There was a grey Volkswagen Jetta on the left side of his trailers at the time.

[24] Mr. Grist testified that he was approximately 100 feet behind Mr. Smith's truck when it crashed into the barrier. Mr. Grist was able to stop his transport truck between eight to six feet from hitting Mr. Smith's truck. Mr. Grist was trying not to jackknife his set of trailers which would have caused a larger accident or kill Mr. Smith.

[25] He wrote down the time his transport truck stopped on his run sheet. It was 1:50 a.m. He had been observing the Smith truck for one kilometer to one and a half kilometers before it crashed.

[26] Mr. Grist immediately grabbed his CB and hollered out onto the radio to let other drivers know that there was an accident in the right lane. He dialled 911 on his cell phone and got out of his truck to check on the other driver.

[27] Mr. Grist's transport truck was sitting out in the live right lane with the four-way lights flashing so other vehicles would see that there was a stopped vehicle ahead. Other drivers would know to get into the left lane to make the pass. In a worst case scenario, a driver who continued driving in this lane would crash into Mr. Grist's transport truck and not into Mr. Grist or Mr. Smith, the other driver.

[28] As Mr. Grist was getting out of the cab of his truck, another semi pulled up to the side of him and asked him what was going on. This driver's load was full of diesel fuel at the time and Mr. Grist told him it was best that he leave.

[29] The driver of the Jetta drove past where the pick-up had crashed and pulled over onto the shoulder.

Dealings with Mr. Smith at the Scene:

[30] "I walked up to the driver of the Dodge Ram, who was getting out at the time, and asked him if he was okay, and at that point he (Smith) said he was (fine)." Mr. Smith exited from the driver's side door. He was the lone occupant.

[31] The driver of the Jetta ran over and asked the same thing.

[32] "At that point the gentleman in the Dodge Ram produced police identification, pulled them out, and flashed it to me and the other driver and said I am a police officer. It's okay, you guys can leave."

[33] Mr. Grist testified that it looked like real Peel Regional Police identification to him.

[34] Mr. Grist testified that he was "extremely upset and frustrated" when Mr. Smith pulled out his police identification.

[35] The Jetta driver ran back to his car and left.

[36] Mr. Grist was already on the phone with the police and they were on their way.

[37] Mr. Grist told Mr. Smith that he was not going to be leaving the scene. He told Mr. Smith to get back into his pick-up truck and wait.

[38] Mr. Smith was stumbling around as he was walking and Mr. Grist did not want him to walk into a live lane of traffic and get hit. Mr. Grist testified that the stumbling he observed consisted of Mr. Smith swaying from side to side as he walked. Mr. Smith was also not standing in a straight steady position.

[39] Mr. Smith was standing approximately five feet from Mr. Grist at the time. Mr. Grist could smell the strong scent of alcohol on Mr. Smith's breath. It smelled like hard liquor, not beer. (Mr. Grist was cross-examined on this at pages 34 and 35 of the April 16, 2013 transcript. Nothing turns on Mr. Grist's fine sense of smell regarding various types of alcoholic beverages.) Mr. Grist did not smell any beer or see any broken beer bottles when he briefly looked into the truck to see if Mr. Smith was okay.

[40] Mr. Grist did not observe Mr. Smith to be injured.

[41] Mr. Smith asked Mr. Grist where they were. Mr. Smith stated that he wanted to call a tow truck.

[42] Mr. Grist replied, "I don't know where we are." He said that, because he did not want Mr. Smith to leave the scene before the police arrived.

[43] Mr. Smith walked down and sat on the center barrier for a while. It appeared to Mr. Grist that Mr. Smith may have been on a cell phone. At one point, Mr. Smith got back into his truck, started it back up and tried to drive away.

[44] "But the rims weren't even on the vehicle anymore. He couldn't go anywhere. After he tried that, he had gotten out of the car and walked to me and back to the pick-up truck a couple of times asking some questions. When he finally asked me who I was on the phone with and I told him that I was on the phone with the OPP, he walked to the center median, the crash barrier, sat down on it and waited there until the OPP arrived."

[45] Mr. Grist gave further details with respect to the damage the Smith truck had sustained. "The front passenger side of the pick-up truck was completely destroyed. The rim on that tire was snapped. The center cap of the rim was still attached to the pick-up truck but the rim itself was somewhere in the field. The left side of it had gotten some damage when it hit the ditch or barrier on the other side before bouncing back out onto the road. When it hit the ground it had lost both rims on the left side of the vehicle and spun around…facing my tractor, so it would be facing east." It was obvious that the truck was not drivable. There was also damage to the panels on the driver's side of the truck.

[46] Mr. Grist stayed on his cell phone with the OPP operator until the police arrived on scene.

[47] Mr. Grist testified that the traffic was light as he made his observations of Mr. Smith's driving. The weather was fair and the lighting conditions were excellent. It was not raining at the time. There was no construction going on in the area or anything on the roadway that was interfering with one's ability to drive.

Police on Scene:

[48] Mr. Grist testified that two officers arrived on scene. They came to him first and asked who he was. He identified himself as the driver of the semi (the 911 caller) and Mr. Grist pointed out Mr. Smith and told the police that he was the driver of the pick-up truck. Mr. Smith was sitting on the crash barrier at the time.

[49] One male officer (Officer Vittie) arrived first. Officer Conant arrived about a minute later. As the officers approached Mr. Smith, he stood up.

[50] Officer Conant came back to Mr. Grist about a minute later and he arranged to take a statement from him at the fuel station on Centennial Parkway in Stoney Creek. When Mr. Grist drove away, Mr. Smith was still talking to Officer Vittie.

[51] In cross-examination, Mr. Grist testified that he had an adrenaline rush immediately after the collision.

[52] "Considering he crashed in front of me and I was spending most of my time trying not to jackknife my set of trailers so that I would not end up causing as larger accident of killing the gentleman."

[53] Mr. Grist agreed that due to the adrenaline rush he was not thinking straight when he gave some details to dispatch as in the time he first saw the Smith vehicle and the exact location of the crash.

[54] Mr. Grist agreed that Mr. Smith would also be shaken up after the violent collision which could have affected his thinking as well.

Witness #2 - Testimony of Officer David Vittie:

[55] Officer Vittie has been an OPP constable since 2001. He was a constable with the Toronto Police Service from 1989 to 2001.

[56] Officer Vittie received a radio call with respect to this matter, a possible impaired driver, at 1:59 a.m. on August 3rd 2011, while at the OPP detachment in Burlington. The radio call reported that this driver had an accident and the vehicle was now facing in the wrong direction on the QEW. A truck driver was the complainant making the call and he had witnessed the accident. Updates included information that the suspect driver had identified himself with some police identification and that lanes (on the QEW) were blocked.

[57] Officer Vittie was the officer in charge of the shift that night. He was the first officer to arrive on scene about 10 minutes after the original radio call.

[58] Officer Vittie spoke to Mr. Grist on scene and was advised that the suspect driver (Mr. Smith) was all over the road and hit the guardrail. When Mr. Grist went to him, Mr. Smith pulled out his badge and told Mr. Grist that it was okay. Mr. Grist could smell booze on Mr. Smith. The badge produced was a Peel Police badge. Mr. Grist pointed out Mr. Smith as being the driver of the crashed pick-up truck.

[59] Officer Vittie approached Mr. Smith who was on his cell phone at the time and standing in the middle of the highway.

[60] Officer Vittie observed some liquid dripping from the pick-up truck. As he got closer to the pick-up truck he could see broken beer bottles in the truck and that it was beer dripping from the truck's doors onto the highway.

[61] Officer Vittie approached Mr. Smith. His first question was, "What happened?" Mr. Smith stated, "I was driving to Mississauga and got into the accident." Officer Vittie asked "Where were you?" Mr. Smith stated, "At a friend's house in Oakville." Officer Vittie asked "How much have you had to drink?" Mr. Smith stated, "About two beers."

[62] Officer Vittie asked "I understand you have a badge?"

[63] "At that time he produced from his rear pocket and showed me a Peel Police badge. While I was speaking to him the male had a strong odour of an alcoholic beverage coming from his breath as he spoke."

[64] Officer Vittie observed Mr. Smith to be rocking back on his heels on level pavement. Mr. Smith's eyes were glassy and there was some wetness to his clothing and there was also an odour of alcohol coming from his clothing.

[65] Mr. Smith kept pointing to the west saying he was going home to Mississauga. Officer Vittie advised Mr. Smith that Mississauga was in the other direction.

[66] Mr. Smith verbally identified himself as Cody Smith and he was walked back to Officer Vittie's cruiser.

[67] Officer Vittie did not observe any injuries on Mr. Smith. Mr. Smith did not complain of any injuries.

[68] Officer Vittie put Mr. Smith in the back of his cruiser at 2:22 a.m. He did not cuff Mr. Smith as a "professional courtesy" because Mr. Smith was a police officer.

[69] He arrested Mr. Smith for impaired operation as he had formed his grounds. Officer Vittie believed that the accident had occurred within 20 minutes of his arrival on scene.

[70] Officer Vittie read Mr. Smith rights to counsel from the back of his notebook, which was read into the record.

[71] Officer Vittie asked Mr. Smith if he understood the rights to counsel and Mr. Smith replied "Yes."

[72] Officer Vittie asked Mr. Smith if he wished to call a lawyer right now. Officer Vittie could not remember what Mr. Smith replied.

[73] Officer Vittie read Mr. Smith the caution from the back of his police notebook. Mr. Smith was asked if he understood and replied "Yes."

[74] Officer Vittie read the breath demand from the back of his notebook. Mr. Smith was asked if he understood and the reply was "Yes."

[75] Officer Vittie advised Mr. Smith that he would be transporting him to the Burlington detachment which was 10 minutes or less from the accident scene. Officer Vittie had called for an Intoxilyzer technician to attend the detachment for breath testing.

[76] At 2:30 a.m. Officer Vittie and Mr. Smith left the scene. Officer Kingsley was directing traffic. Officer Conant was taking care of the pick-up truck, the accident report, and getting Mr. Grist's witness statement.

[77] Officer Vittie was the only officer that spoke with Mr. Smith at the scene.

[78] Officer Vittie drove directly to the detachment. There were no stops or delays.

[79] There are two cells at this OPP detachment. One of the cells was contaminated and the other cell was occupied. Officer Vittie placed Mr. Smith in an interview room at the front of the detachment which was "a little bit away from everybody". Officer McCulloch sat with Mr. Smith while the prisoner report (booking) process was filled out, which took about 10 minutes. Officer McCulloch did that so Officer Vittie could make and receive phone calls in this case.

[80] At approximately 2:50 a.m., per police protocol, Officer Vittie called the Communications Center and spoke to a duty officer. "And I gave a very brief detail. They just wanted his name and that a police officer had been arrested, and that was it."

[81] A short time later Officer Vittie received a call from Peel Regional Police. They offered to pick Mr. Smith up from the detachment and take him home.

[82] At some point Officer Vittie asked Mr. Smith if he had a lawyer and he said he did not and asked Officer Vittie to call duty counsel.

[83] Officer Vittie testified that this discussion took place when Mr. Smith was seated in the interview room. He could not recall if any other officers were present for this conversation. He believes that Officer McCulloch was sitting outside of the room at the time.

[84] At 3:07 a.m. Officer Vittie placed a call to duty counsel at the back of the station at the breath room. This phone is used to make calls to and receive calls back from duty counsel.

[85] At 3:12 a.m. duty counsel (Michael Roberts) called back.

[86] Officer Vittie took Mr. Smith out of the interview room and walked him back to the cell area where there is a private soundproof booth. Mr. Smith was placed in the room to speak with duty counsel.

[87] At 3:15 a.m. Officer Vittie provided his grounds for arrest to the breath tech, Officer Sobilo.

[88] At 3:24 a.m. Mr. Smith completed his call with duty counsel. Officer Vittie walked Mr. Smith up to the breath room which was 20 paces away.

[89] Mr. Smith was turned over to Officer Sobilo for breath tests. Officer Vittie did not stay in the breath testing room.

[90] Between the first and second breath test Officer Vittie stayed with Mr. Smith in the fingerprinting/photograph room.

[91] At 3:53 a.m. Officer Vittie took Mr. Smith back to the breath room for the second test.

[92] Officer Vittie was subsequently advised of the readings (101 and 102 milligrams of alcohol in 100 millilitres of blood) and he arrested Mr. Smith for Over 80.

[93] Mr. Smith sat with Officer Vittie as he completed all his paperwork in the case.

[94] At no point was Mr. Smith placed in a cell.

[95] At 4:35 a.m. Officer Vittie served Mr. Smith with the required documents and Mr. Smith advised that he had no transportation home. Officer Vittie took it upon himself to drive Mr. Smith home to Mississauga. Officer Vittie testified that it is very rare for him to drive impaired accused persons home. He did it in this case to show Mr. Smith "some courtesy from being a police officer". Officer Vittie worked 2 hours of overtime to provide this additional courtesy.

[96] On the drive back, Mr. Smith talked about the event and he was worried about his career. When they arrived at Mr. Smith's house, Mr. Smith apologized to Officer Vittie for all the problems he had caused and they shook hands.

[97] Officer Vittie testified that at no time did Mr. Smith ask to speak to any specific counsel. "He did not, and if he would have I would have gladly made any phone calls for him that he wanted."

[98] Officer Vittie testified that Mr. Smith did not ask to speak to any third party to assist in providing contact information for counsel. Mr. Smith did not ask for a phone book.

Note-taking on Issue of Rights to Counsel:

[99] In cross-examination, Mr. Lent asked many questions about Officer Vittie's note-taking in this case.

[100] Officer Vittie testified that on the morning in question he made 9 pages of handwritten notes in his police-issued notebook.

[101] On June 29th, 2012, the first date scheduled for trial in this matter, the Crown Attorney asked Officer Vittie to speak to counsel (Mr. Lent) about the rights to counsel issue raised in the Charter Application.

[102] The trial did not proceed on June 29th, 2012.

[103] Officer Vittie testified that as a result of that discussion he was asked to provide further disclosure to answer defence counsel's questions regarding the following: other officers who were at the detachment; the specifics of the conversation at the detachment concerning rights to counsel; information about the call made to Internal Affairs; whether or not he had called the Police Association.

[104] The second set of notes consisted of 4 typewritten pages. They were faxed to defence counsel by the Crown on July 24th, 2012.

[105] In the additional disclosure, Officer Vittie stated that P.C. McCulloch stood by the accused and completed a prisoner's log.

[106] Officer Vittie stated he spoke with Mr. Smith and asked if he had counsel. Mr. Smith advised that he did not and requested duty counsel. At no time did the accused request any particular counsel.

[107] Officer Vittie agreed with defence counsel that in his original handwritten notes he did not write the full conversation down with respect to the conversations about exercising rights to counsel.

[108] Officer Vittie did not record when the conversation concerning rights to counsel occurred at the detachment. He testified that it had to have been approximately 3:00 a.m. in the interview room of the detachment.

[109] With respect to rights to counsel at the scene, Officer Vittie testified as follows:

Q. You see the - you got to listen to my question. You read us your standard form, rights to counsel. It's in the back of your notebook. The last question is, "Do you want to call a lawyer?" "Do you want to call counsel?"

A. That's correct.

Q. And the Crown Attorney said to you, what was the response, and you said, I don't know.

A. I only ans - I only wrote, to the question after, "Do you understand?" However, he was read the whole thing and he answered yes.

Q. Well, I know. But to the question, "Do you understand?" he said "Yes." But for the question, "Do you want to call a lawyer?" you don't know what the response was?

A. I read him the complete - I read him the complete right to counsel and then at the very end I asked him, "Do you understand?" I didn't ask him directly to, "Do you wish to call a lawyer?" Or I asked - I had him answer to, "Do you understand?" which was the whole right to counsel, and he advised, "Yes."

Q. Can you show me your notebook, sir? No, no, the standard form. Thank you. So you got a standard form warning in your notebook, sir?

A. That's correct.

Q. And you read it to him?

A. That's correct.

Q. Now, there's two questions at the end of the standard form. And after it reads, "1-800," et cetera, "is a toll free number that will put you in contact with legal aid duty counsel for free legal advice right now." And that's the end of the long rights to counsel, correct?

A. That's correct.

Q. First question is, "Do you understand?" Correct?

A. Correct.

Q. And he apparently said, "Yes." Correct?

A. I believe though that I read, "Do you understand?" And then, "Do you wish to call a lawyer now?" because I read the complete card. And then I only put in my book, "Do you understand?" And I put yes. But he was read the complete question.

Q. I don't doubt that, sir.

A. But he only answered to my - I only wrote in my book, "Do you understand?" I don't recall asking two separate questions.

Q. No, the next preprinted question is after, "Do you understand?" And you, you tell us he said yes to that. "Do you wish to call a lawyer now?" is the next question in your preprinted notes, correct?

A. The only thing that I wrote in my notes was, "Do you understand?" and yes.

Q. Listen to my question, sir.

A. I am answering your question. He did....

Q. No, you are not.

A. Okay.

Q. The next preprinted question is, "Do you wish to call a lawyer now?"

A. That's correct.

Q. And when, when the Crown Attorney asked you what was the response to that, you said I don't know, correct?

A. I don't recall that.

Q. Today, you don't recall that?

A. No, I thought I said that I read the whole thing to him. I'm telling you now as well that I do put in, "Do you understand?" and, "Yes." but he was asked both of those questions. I have in my book, I only have the answer to the one question, "Do you understand?"

Q. Well, if the version that you gave the Crown Attorney is correct, then you don't know what he said to the question, "Do you want to call a lawyer?"

A. I'd have to see the transcript. I can't recall.

Q. From this morning?

A. That's correct.

Q. I see. Well, if that version's not correct, then you asked him the question, "Do you want to call a lawyer?" and he says, "Yes" what do you say then?

A. I say then that if, if that's the situation then I tell him that we're two minutes away from the detachment where we have a phone there and I'll provide every opportunity for him to call any counsel of his choice.

Q. Well, if that was the case, why don't you have that in your notes?

A. I'm just saying that that's what I have done for my whole career.

Q. So you're relying upon, is it 19 years?

A. More than that.

Q. Help me out here, how long?

A. Twenty-four.

Q. Twenty-four years and thousands of investigations, right?

A. Sure.

Q. So you're saying I always do it this way, so I know I did it this way in this particular case?

A. He - every time, people are read this same thing from their caution card and you know, I've always asked do you understand at the end, and that's to both questions.

Q. You never say, number one, as set out in your preprinted card, do you understand and get an answer. And you never say, after you get that answer, do you wish to call a lawyer now? A. I don't believe that I do. And I don't believe that night that I did. I believe that it was all one question together. But I wrote it down in my book as do you understand, as in do you understand them both? And like I....

Q. And he's saying yes, yes. And you're saying you don't make any notes about the further conversation you have with him?

A. I don't, but I have recollection. And I'll say again, if he asked for any counsel, I would have provided it for him.

Q. Yes, sir, but we're talking about a particular investigation, August the 3rd, 2011, and this particular investigation. If he said yes, I want to speak to a lawyer, what did you say at the scene?

A. I'm talking at this particular investigation, being the circumstances, have he called and asked for any counsel, I would have provided him. But at no time did he ask for any counsel other than duty counsel when he was asked.

Q. So you can't tell me what the conversation at the scene was if he said yes, I want to speak to a lawyer?

A. He did not ask for a lawyer because he would have been given a lawyer, sir.

Q. So he didn't say yes to that? All right, that's fine. If you're saying he didn't say yes, so be it.

[110] Officer Vittie testified as to his activities between 2:35 a.m., when he arrived at the detachment with Mr. Smith, and 3:07 a.m., when he placed the call to duty counsel.

[111] Officer Vittie placed Mr. Smith in the interview room; arranged for Officer McCullogh to do the booking procedure; spoke to the OPP duty inspector at 2:50 a.m.; Peel Regional Police called him back.

[112] When asked when it was that he had the conversation with Mr. Smith about him wanting duty counsel, Officer Vittie testified as follows:

"I can't remember exactly when, but I believe that it was either after I… gave him his rights, or during transport. And then there was no other time where he made any requests for counsel:"

Q. So when is it you have this discussion with my client to the effect that, "I asked the accused if he had counsel? He responds he did not and requested duty counsel."

A. I can't remember exactly when, but I believe that it was either after I asked him his right, or gave him his rights, or during the transport. And then there was no other time where he made any requests for counsel.

Q. So now you're telling us it's either at the scene, correct?

A. We had just - while we're driving. I can't give you exactly when, but I asked him for any particular counsel.

Q. Or it's before you get to the police station. Is that what you're telling us?

A. I, I, you know, trying to back in my recollection, I, I can't remember exactly when or how many times I asked him.

Q. You think it was more than once?

A. I do remember that at no time did he ask for any specific counsel other than duty counsel.

Q. Well, that's not, that's not what you've got in your new set of notes, sir. In your new set of notes you said, "I asked if he had counsel? He advised that he did not and requested duty counsel." That's what your new set of notes says.

A. I think I - when you asked me that question if, when we were in the room, regarding if I had count - contacted his Police Association for counsel, I believe that's why I said to him about his counsel and that I asked him if he had any counsel, and the only thing he ever asked for was duty counsel.

Q. When did you ask the question if he had counsel and responds he did not and he said I want to speak to duty counsel.

A. Right now I can't remember exactly when he said that.

Q. Okay. Let's go back to the new set of notes here.

MS. McGUIGAN: I think in fairness, it's a typed will state and the officer's referred to it as such. So I don't know why Mr. Lent keeps calling it a new set of notes.

MR. LENT: There's no magic in the will say. It's a typed set of notes in my submission, Your Honour. Let's read the chronology in the, the new....

A. Can you show me which page?

MR. LENT: Q. It looks like it's page.....

A. What's the top word?

Q. It looks like page three. And if I can, the top word is "opinion" in the first line. But I want to go down to about halfway down. It says at 2:50 a.m., "I contacted the OPP Communication Centre to advise the duty officer that a police officer had been arrested."

A. That's correct.

Q. "I then spoke with the accused. I asked if he had counsel. He advised that he did not and requested duty counsel." Did I read that properly?

A. You did.

Q. So in that statement you're saying it's at 2:50 a.m., right?

A. Yes.

Q. But that's not possible because he's in an interview room with McCulloch and you're off doing these various other things in other parts of the police station.

A. You just - we just did a drawing. It's in the same vicinity that area.

Q. Well, you told me, sir, you were off, out of the interview room from 2:35 a.m. to 3:07 a.m. So you couldn't, you couldn't have been talking to my client at 2:50 a.m.

A. If I was standing at the front, I could have spoken right through the door to him.

Q. And my.....

A. I'm saying right now I don't recall. In July, when I made these notes, it's obvious at that time when to I spoke to him through the door or in the interview room.

Q. And my suggestion to you, sir, because you never made notes of this at the time, August the 3, August the 3rd, 2011, and the first time anybody ever asked you to use your memory about these events in July of 2012, it becomes an impossibility to try and recall conversation given the number of investigations you must have gone through and still go through, right?

A. Well, I'm going to suggest as well that at no time that, with this male, did he ask for counsel other than duty counsel. And I again say if he would have asked for any counsel, I would have provided him with either the number, a phone book, and I would have given every opportunity and courtesy to call any counsel of his choice.

Q. What it looks like right now, sir, is that you, on your own volition, called duty counsel without any prior communication or discussion with my client. Wouldn't that be fair?

A. It would look like that to you, but it's not correct.

Q. All right. Then the next question is why do you wait 30 minutes after you arrive at the police station to call the duty counsel?

A. I can answer to some of that. It's possible that there was other people in the backroom while things were happening in the breathroom. I had other calls. I received a call at 3:00 in the morning from the inspector, I had to deal with that. I had to call the communications centre. And between the booking procedure, I didn't think that was an unreasonable time.

Q. I mean if you were correct about my client saying at the scene, yeah, I want to speak to a lawyer, wouldn't that be like number one priority when you get to the police station to say, okay, I'm going to task the booking procedure to McCulloch, which you did. That'll free me up to call the duty counsel and get this important rights to counsel facilitated?

A. I - just to clarify, did you just say that he wanted to call a lawyer at the scene?

Q. Well, at some point in your testimony, sir, you're saying it may have happened. He may have said at the scene, I want to speak to a lawyer. I want to speak to duty counsel.

A. At that scene he didn't ask for any counsel in particular or duty counsel.

Q. He didn't. So this conversation that I read to you did not happen at the scene, that is I asked him if he wanted to speak to a lawyer? He said he didn't have a lawyer but he wanted to speak to duty counsel. That conversation didn't happen at the scene then?

A. No.

Q. Okay, we've established that. Now, you mentioned it might have happened on the way in the police car?

A. It's possible. We had conversation and I may have asked him about counsel there. I know the priority to get, or the right to have people have counsel. And again, if he would have asked for any counsel, he would have got it.

Q. I'm just saying to you, sir, if you had that information in your mind when you arrive at the police station, why did you wait 30 minutes before you called duty counsel?

A. Between the booking procedure, getting him in, finding out about the cells, the calls that I received, that was my first opportunity that I could get and call duty counsel.

Q. Sir, you are the person who is calling the OPP duty officer.

A. I believe I was contacted over the air to contact him.

Q. Sir, I'm going to suggest to you, you had an audio discussion with the dispatch saying I have to get through to somebody, to talk to the senior person because I'm just arresting a police officer.

A. But that's quite possible.

Q. Your memory's not good about this, sir?

A. It's quite possible, sir.

Q. Well, you're either concerning yourself about speaking to senior officers or you're concerning yourself about getting through to duty counsel. What are you doing?

A. I, I don't recall the conversation with the communications centre. If it was en route, well then, and I don't recall if it did and when it happened.

Q. You're not saying it didn't happen?

A. It's quite possible.

[113] Officer Vittie observed no flushed face, no slurred speech, and no unsteadiness at the station.

Witness #3 - Testimony of Officer Robert Conant:

[114] Officer Conant has been an officer with the OPP since 2009. He prepared police notes and a Collision Report in this case.

[115] At 2:04 a.m., he received a radio call with respect to this matter. He had been performing laser intercept duties out at Ford Drive in Oakville at the time.

[116] The original call information was: that at the QEW/403 split in Burlington; possible impaired driver; motor vehicle collision with one lane being blocked by a motor vehicle facing the wrong way; male is an officer.

[117] Officer Conant arrived on scene at 2:11 a.m. Officer Vittie was on scene and he was speaking to Mr. Smith.

[118] At the scene, Officer Conant performed traffic control. He had no communication with Mr. Smith at the scene or back at the detachment.

[119] Officer Kingsley arrived a few minutes later and directed him to take a witness statement from Mr. Grist.

[120] Officer Conant described the accident scene as follows:

I observed a tractor trailer in the right lane and I observed the black motor vehicle again in the right lane as well, facing the wrong way…there was debris all over the lanes of the highway and on both shoulders…the right side of the motor vehicle (pick-up truck) was completely destroyed…It was missing its right rear tire and the passenger door could not open…It was in front of the transport…It was facing eastbound in a westbound lane…the crash barrier was destroyed as well.

[121] Officer Conant testified that this was a "violent collision" with speed to it.

Witness #4 - Testimony of Officer Kingsley:

[122] Officer Kingsley has been employed with the OPP for 11 years.

[123] He originally heard the radio call for this matter at 1:57 a.m.

[124] He arrived on scene at 2:19 a.m. after Officer Vittie had called for assistance at 2:13 a.m.

[125] Officer Kingsley described what he observed on scene at that time, which is consistent with all the other witnesses.

[126] The pick-up truck was facing the wrong way in the right lane of traffic. It sustained heavy damage to the passenger side. There was heavy damage to the right side guide rail.

[127] Officer Vittie advised that he had a male party under arrest.

[128] Officer Kingsley was involved in setting up the lane closure to ensure officer safety and to protect the public from causing a secondary collision by hitting the involved vehicle.

[129] Officer Kingsley had no contact with any civilians at the scene.

[130] Officer Kingsley had no contact with Mr. Smith at the scene or back at the detachment.

[131] On that day, the roads were dry. The weather was clear. The area was dark, but had artificial lighting.

Witness #5 - Testimony of Officer Alexander McCulloch:

[132] Officer McCulloch has been a police officer since 1989; first with York Regional Police, then with the OPP.

[133] At 1:51 a.m., he was involved with another incident in the area of Highway 403 eastbound near Waterdown Road in regard to a motor vehicle that had hit a deer.

[134] He finished that call at 2:18 a.m., and headed to this scene to assist if required. He arrived at 2:25 a.m.

[135] When he arrived, Officer Vittie had a party under arrest. Constables Conant and Kingsley were on scene.

[136] Officer McCulloch followed Officer Vittie's cruiser to the OPP detachment, arriving at 2:38 a.m.

[137] The cells were not available, so at 2:44 a.m. Mr. Smith was lodged in the interview room at the front of the detachment.

[138] Officer McCulloch stayed in that room with Mr. Smith and filled out the prisoner's lodging form. It takes between 10 to 15 minutes to complete this form. It was completed in this case at 3:00 a.m.

[139] Mr. Smith did not appear injured, nor did he complain of any injuries.

[140] When the form was completed, Officer McCulloch understood that Officer Vittie was making arrangements for duty counsel to be contacted.

[141] At 3:09 a.m. Mr. Smith was walked to the phone room to speak to duty counsel.

[142] Mr. Smith spoke in privacy to duty counsel between 3:12 a.m. and 3:22 a.m. He was removed from that room by Officer Vittie.

[143] Officer McCulloch did not have any discussion with Mr. Smith about rights to counsel.

[144] "My understanding was Constable Vittie was making a phone call to duty counsel and I was aware that he had been given his rights."

[145] Officer McCulloch did not recall any discussion about rights to counsel occurring in his presence.

Witness #6 - Testimony of Officer Krzysztof Sobilo:

[146] Officer Sobilo has been a member of the OPP since 1994. He was the qualified Intoxilyzer technician in this case.

[147] On the morning in question, he was advised at 2:31 a.m. that he would be required to attend the detachment for breath testing.

[148] He arrived at the detachment at 2:45 a.m. and began to set up the instrument. He was satisfied that the instrument was in proper working order at 3:06 a.m.

[149] At 3:11 a.m., he picked up the phone and duty counsel was calling back for Officer Vittie/Mr. Smith.

[150] At 3:15 a.m. Officer Vittie provided him with his grounds.

[151] Officer Vittie advised that constitutional rights had been provided at 2:22 a.m. at the scene. Officer Sobilo did not read rights to counsel to Mr. Smith.

[152] The breath room video was filed as Exhibit #3.

[153] The videotape shows that at 3:28 a.m. in the breath room, Officer Sobilo asked Mr. Smith if he had been given an opportunity to speak to a lawyer. Mr. Smith said "Yes".

[154] The standard breath demand was read and Mr. Smith was asked if he understood. He replied "Yes".

[155] The primary and secondary cautions were both read and Mr. Smith replied that he understood both.

[156] Mr. Smith stated that he had "no problem" answering questions.

[157] Officer Sobilo took two suitable samples of Mr. Smith's breath. Officer Sobilo asked questions between the two tests which Mr. Smith answered as follows:

• He was operating a motor vehicle at the time of the collision;
• The collision happened at 2:30;
• The first officer arrived 10 minutes later;
• He was going westbound on the QEW to his residence;
• He started driving from Oakville at 12:00;
• He drank 1 to 2 beers at a friend's house starting at 12:00;
• His last drink was at 01:00;
• It took 30 minutes to consume the last drink;
• He has had nothing to drink since the collision;
• He is in good health, not taking medicine/pills, not handicapped and not injured.

[158] Officer Sobilo testified that he could smell an alcoholic beverage on Mr. Smith's breath. Mr. Smith's eyes were glassy; his face was pale; he observed slight unsteadiness on feet; speech was fair but slow.

[159] After the testing he noted that the effects of alcohol on a scale of between 0 and 10 were 5.

SECTION 7 CHARTER – Right to Remain Silent

Applicant's Position

[160] The Applicant submits that given the serious damage caused by the accident (in excess of $1,000.00), Mr. Smith was required to report the accident forthwith to the nearest police officer and furnish him or her with information concerning the accident as required by the Officer pursuant to Section 199(1) and Section 199(3) of the HTA.

[161] The Applicant submits that any citizen finding himself in the situation in which he was confronted with would be deemed to know the law as set out above. The Applicant submits that since he is a police officer, the Court can infer that he was aware of the obligations imposed on him under the HTA and that any responses to questions by police at the scene would have resulted from his statutory obligation to respond.

[162] The Applicant submits that his statements should be excluded both at the trial in relation to the truth of their contents, and in relation to the formation of reasonable and probable grounds. The Applicant submits that the admission of his statements would render the trial unfair.

[163] The Applicant relies upon the following cases in support of his position:

R. v. Soules, 2011 ONCA 429; R. v. Powers, 2006 BCCA 454; R. v. White, [1999] 2 S.C.R. 417; 135 CCC (3d) 257 (SCC); [R. v. Treliving, [2003] O.J. No. 2894 (Summary Conviction Appeal decision)]; R. v. Parol, 2011 ONCJ 292

[164] As stated in R. v. White, statements to a police officer concerning a motor vehicle accident, under compulsion of a provincial Motor Vehicle Act, are inadmissible in criminal proceedings as a violation of the right to remain silent. The police officer can simultaneously be investigating a possible crime where the driver is a suspect. The test for compulsion is whether the driver gave the report on the basis of an honest and reasonably held belief that she was required by law to report the accident to the person to whom the report was given. The onus is on the defendant to establish on the balance of probabilities that the statement was compelled.

Respondent's Position

[165] There is no evidence that the Applicant provided statutorily compelled statements at the roadside or anywhere else. The Applicant did not testify, and there is no precedent or authority to the effect that any defendant is deemed to have made a statutorily compelled statement. Indeed, all the cases relied on by the Applicant involve a consideration of the defendant's own evidence as to compulsion.

[166] Any inference as to the Applicant's motive for making a statement to Officer Vittie at the roadside must be based on the evidence before the Court and not speculation. The Respondent submits that the Applicant's words and actions at the roadside were not consistent with the training of a police officer, nor what would have been expected of a police officer.

[167] The uncontradicted evidence of Officer Vittie and Officer Sobilo was that the Applicant had been cautioned twice by the time he gave a statement to Officer Sobilo in the breath room, including a secondary caution by Officer Sobilo. There is no precedent or authority whatsoever for the proposition that the Applicant's utterances after a criminal caution are statutorily compelled. The criminal cautions issued to the defendant compel the conclusion that any alleged compulsion had been overcome. The Respondent submits that these statements are differently situated than those to Officer Vittie and they should be separately analyzed.

[168] The Respondent referred to evidence in support of their position from paragraphs 23 through to 35 in their written submissions.

[169] All the involved officers testified on the combined trial and voluntariness voir dire. It was not suggested that any officer threatened the Applicant or promised him anything in exchange for making a statement.

[170] In addition to the cases referred to by the Applicant, the Respondent relies upon the following: R. v. Wenham, 2013 ONSC 7431 and [R. v. Bhangal, [2013] O.J. No. 3032 (SCJ)].

[171] None of the cases reference a defendant being "deemed" to have made compelled utterances or "inferred" to have known the law. None of these cases involved police officers being treated differently as defendants. The Court's determination must be based on evidence and not speculation.

[172] All of the Applicant's words and actions at the scene indicate that he had no intention of reporting this collision to police. He intended to flee and encouraged witnesses to leave. It hardly seems fair to infer that he had the knowledge of statutory compulsion from police training, relieving him of having to testify, in circumstances where he did not act in a manner consistent with police training and expectations.

[173] When police did arrive, he made no reference to his obligation to report the collision. The Applicant did not testify on the issue of his own mental state.

[174] The utterances to Officer Sobilo were made after primary and secondary cautions and after the Applicant consulted with Duty Counsel. The Respondent submits that there is no authority whatsoever for the proposition that utterances made after a criminal caution are compelled by statute.

[175] The Respondent submits that the Applicant has not met his burden of showing that any of his utterances were compelled by statute and submits that the s. 7 Application be dismissed.

Analysis:

[176] I agree with the Respondent's submissions and adopt all of them as part of these reasons.

[177] I find as fact that all statements made to the officers in this case were voluntary and not compelled by a duty to report an accident under the HTA.

[178] I find as fact that the Applicant's intent was to avoid reporting this accident to police and to flee the scene if possible.

[179] This conclusion is based upon the following uncontroverted evidence of Mr. Grist:

(1) When Mr. Grist approached the Applicant immediately after the accident, the Applicant said he was fine and flashed his police badge at him and the driver of the Jetta who had stopped and said "I am a police officer. It's okay, you guys can leave."

[180] There is no question in this case that Mr. Smith was a new officer with the Peel Regional Police force. When he flashed his badge and told the civilians to leave, the driver of the Jetta returned to his car and left the scene. Mr. Grist, who was understandably upset and frustrated by this conduct, refused to leave the scene. Mr. Grist told Mr. Smith that he was not going to be leaving the scene. He told Mr. Smith to get back into his pick-up truck and wait;

(2) Mr. Smith did not get back into his pick-up truck and wait for the police. He stumbled about the roadway, "asked Mr. Grist where they were and stated that he wanted to call a tow truck."

[181] This is the second attempt to avoid having the matter reported to police and is consistent with his attempt to have witnesses leave the scene;

(3) At one point, Mr. Smith got back into his truck, started it back up, and tried to drive away.

[182] This is the third attempt to flee the scene.

[183] There is not one shred of evidence in this case that supports the Applicant's submission that Mr. Smith felt a duty to report this serious accident to police. The evidence points to the opposite conclusion.

[184] Accordingly, the Applicant had not met his onus of proof and the s. 7 Charter Application is dismissed.

SECTION 10(b) CHARTER – Right to Counsel

Applicant's Position

[185] The Applicant submits that the call made to Duty Counsel by Officer Vittie occurred only after he had consulted with the OPP Duty Officer and that it was a unilateral decision made by Officer Vittie after consulting with the OPP Duty Officer.

[186] Further, the call to duty counsel was unreasonably delayed by the fact that other calls were made first.

[187] It is submitted that, in the circumstances, Officer Vittie should have inquired from the Accused as to whether he had a counsel of choice and pursued that option prior to going directly to the use of duty counsel. The Respondent relies upon R. v. Kumarasmy, [2002] O.J. No. 303 (Summary Conviction Appeal) and R. v. McCallen (1999), 131 CCC (3d) 518 (OCA) in support of this submission.

[188] The Applicant submits that the evidence in relation to rights to counsel and how they were provided by Officer Vittie is remarkably unreliable given the fact that his original handwritten notes contained nothing with respect to a conversation regarding right to counsel of choice and the use of duty counsel.

[189] It is submitted that the latter produced typewritten notes cannot be relied upon for accuracy that the conversation occurred or as to the time frame in which the discussion regarding counsel of choice and duty counsel is supposed to have occurred. Officer McCulloch testified that he did not hear any discussion regarding counsel between Officer Vittie and the Applicant.

[190] It is submitted that this unreliability is revealed when Officer Vittie changes his testimony to the effect that the conversation regarding counsel of choice and duty counsel may have occurred at the scene or in the police vehicle en route to the police station.

[191] In summary, the Respondent relies upon the testimony given in cross-examination as noted earlier under the section entitled "Note-taking on issue of Rights to Counsel" above.

[192] The Applicant submits that the breach in this case is serious and that the inconsistency with respect to this very important evidence reflects a "bad faith" aspect of the Crown's case and police procedure.

[193] The Applicant seeks exclusion of all statements made to police after rights to counsel were read at the scene and the Intoxilyzer test results pursuant to s. 24(2) of the Charter.

Respondent's Position

[194] The Respondent submits that the evidence has established that the Applicant stated that he did not have a lawyer and that he asked to speak to duty counsel. Despite the lack of precision as to the timing of this conversation in Officer Vittie's evidence on this point, the Respondent submits that Officer Vittie's evidence should be accepted.

[195] The Respondent references evidence in support of their position from paragraphs 52 to 76 in their written submissions.

[196] The Respondent submits that even if a breach is found in this case, it is a minor breach in all the circumstances and there should be no exclusion of evidence pursuant to s. 24(2) of the Charter.

Analysis

[197] Officer Vittie's 24-year practice of asking an arrested person "do you understand?" and getting a single response to 2 separate questions with respect to access to counsel is simply not acceptable.

[198] Clearly at the scene after reading the Rights to Counsel from his police issued notebook, Officer Vittie should first have asked "do you understand?" and received a response. He then should have asked "do you wish to contact a lawyer now?" and received a response. Both responses should have been recorded his police-issued notebook that was in his hands at the time.

[199] The fact that this was not done has left this Court in a state of confusion as to what was said at the scene with respect to accessing counsel.

[200] Further, the fact that there are no original handwritten notes with respect to accessing counsel of choice or with respect to utilizing duty counsel, either en route to the detachment or when back at the detachment, has compounded this confusion.

[201] I find that Officer Vittie was too pre-occupied providing Mr. Smith, a fellow police officer, with every "courtesy" he thought he could in this case (examples include no cuffs, no cells, private rooms, a drive home) that he did not perform his most important duties with respect to recording critical conversation or conversations regarding access to counsel.

[202] I do not know when this was done, where it was done, or if it was done.

[203] The Applicant did not testify on this Application and he bears the onus of proof on a balance of probabilities. Given the fact that he is a police officer I could reasonably infer that he knows what rights to counsel are and what his choices are as it is part of his job to know this information. However, that would be treating him differently than any other accused, and that is not what investigating officers or the Courts must do. He is a citizen under arrest for a criminal offence. Accordingly, he is to be treated the same as any other citizen in similar circumstances.

[204] The issue of poor note-taking with respect to access to counsel has been an ongoing problem in the Courts for many years now. It is beyond time for police training to catch up to what the Courts have been saying in this regard.

[205] Accordingly, a section 10(b) breach has been established in this case.

Section 24(2) Analysis

[206] I adopt the analytic framework as articulated in the case of R. v. McMeekin, a decision of Justice Stephen Brown of the OCJ released March 5, 2014, indexed as 2014 ONCJ 107.

[207] Because of my finding of the s. 10(b) breach, I now move on to the issue of whether the evidence obtained after the breach is to be excluded. The revised approach to the lines of inquiry concerning the factors to weigh in this analysis are set out in the Supreme Court of Canada decision in R. v. Grant, 2009 SCC 32 at paras. 67-71 and paras. 85 and 86 and instruct courts to utilize a more flexible, balanced and comprehensive test under s. 24(2) as follows:

67 The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term "administration of justice" is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.

68 The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) 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. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

69 Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

70 Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a 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 (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence...

85 To review, the three lines of inquiry identified above - the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits - reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of "all the circumstances" of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.

86 In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible. However, the preceding analysis creates a decision tree, albeit more flexible than the Stillman self-incrimination test. We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, a measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination.

[208] In assessing the seriousness of the breach in Grant, supra, and in R. v. Harrison, 2009 SCC 34, the Court suggested that the conduct causing the breach be assessed on a continuing fault line. At para. 23 of the Harrison decision, the Court stated:

...The metaphor of a spectrum used in R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.), per Doherty J.A., may assist in characterizing police conduct for purposes of this s. 24(2) factor:

Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights... . What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct.

Seriousness of the Breach

[209] Inadequate facilitation of the right to communicate with counsel of choice is a serious breach.

[210] The seriousness of this breach is compounded by the lack of note-taking with respect to this very important area of implementing rights to counsel.

[211] In this case the original notes were deficient – to the point of being non-existent – on crucial questions and answers given, if any, with respect to rights to counsel.

[212] Officer Vittie created a second set of notes months after the alleged event and after the first trial date that resulted in confusion as to when discussion regarding rights to counsel of choice or duty counsel may have occurred, be that at the scene, in the police car or at the station.

[213] I find that the unreliability and inconsistency with respect to this very important evidence reflects poorly on the Crown's case and is bad police procedure.

[214] The late facilitation of access to Duty Counsel and the imposing of same upon the Applicant amplifies the seriousness of the breach, and the comments of Justice Durno in Regina v. Kumarasary, supra, are applicable to this case.

[215] I, therefore, assess the impact of this factor to favour exclusion of the breath samples and all statements made by the Applicant to the police after the rights to counsel were read at the scene in the analysis.

Impact upon the Applicant's Charter-Protected Interests

[216] The importance of the right to counsel of choice is set out in paragraphs 34 through 40 of Regina v. McCallen, supra. It is not for the Court to speculate what consequences would have flowed if the Applicant had been given access to counsel of choice as opposed to Duty Counsel. The comments in Regina v. McCallen emphasize the important principle of allowing an accused party to have access to counsel of his choice. The police erroneously felt they could use the delayed access to Duty Counsel and that would comply with section 10(b) of the Charter. Officer Vittie was wrong in that regard.

[217] I assess the impact of the police conduct on the Applicant's Charter-protected interests as being a serious one and, therefore, favouring exclusion.

Society's Interest in Adjudication on the Merits

[218] It is the evidence of the Intoxilyzer readings that the Applicant seeks to have excluded, as well as statements made to the officers after rights to counsel were read at the scene. Acknowledging that the Intoxilyzer results are crucial to the Crown's case regarding the charge of over 80, this factor favours inclusion.

[219] Breath samples provided into approved screening devices and the Intoxilyzer are generally considered reliable evidence absent evidence of malfunction or improper operator error. As stated by Hill J. in Bryce, supra, at para. 67:

Although the seriousness of the charge "must not take on disproportionate significance" (Harrison, at para. 34), impaired operation of a motor vehicle is a notorious threat to public safety: Stillman (1997), 113 C.C.C. (3d) 321 (S.C.C.) at 356; R. v. Hufsky, [1988] 1 S.C.R. 621 at 636-7; R. v. Saunders (1988), 41 C.C.C. (3d) 532 (Ont. C.A.) at 537, 545.

[220] Also, these offences are serious offences. The carnage caused on our roadways to innocent victims is a notoriously recognized fact.

[221] Notwithstanding that the drinking and driving sections of the Criminal Code are serious offences, this case does not involve personal injury or death.

[222] The Intoxilyzer readings, while over the proscribed limit, were at the very low end of the prohibited scale.

Balancing the Factors

[223] This arrest occurred more than 2 years after the decision in R. v. Suberu, 2009 SCC 33 and this principle had more than enough time to filter through to frontline officers. In that case at paragraphs 40 to 43 the Court states:

40 As with "detention", any interpretation of the phrase "without delay" must be consistent with a purposive understanding of the Charter provision in which it occurs. As this Court noted in R. v. Therens, [1985] 1 S.C.R. 613, at pp. 641-42, and in R. v. Bartle, [1994] 3 S.C.R. 173, the purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

41 A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.

42 To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

Conclusion

[224] In balancing all the factors, I have decided that the admission of the Intoxilyzer test results, and all statements made to police after rights to counsel were read at the scene, would bring the administration of justice into disrepute. Accordingly, that evidence will be excluded.

[225] The accused is found not guilty on the charge of Over 80.

SECTION 8 – Whether Reasonable and Probable Grounds Existed

Applicant's Position

[226] The Applicant submits that Officer Vittie did not have the subjective honest belief that the Applicant had committed the offence before the arrest and the demand for breath samples was made. It is further submitted that when viewed objectively, there are no reasonable grounds for Officer Vittie's belief: R. v. Bernshaw, [1994] S.C.J. No. 87 254 at 48, and R. v. Rhyason, 2007 SCC 39 at para. 12.

[227] The Applicant submits that Officer Vittie could only have a reasonable suspicion that the Applicant had alcohol in his body and that he should have administered the ASD test before arresting the Applicant in this case.

[228] Counsel points to difficulties in Officer Vittie's first information from dispatch that the accident had occurred at the QEW/403 split in Oakville, not Burlington, when he received the call at 1:59 a.m. Officer Vittie was delayed getting to the scene when he arrived at approximately 2:09 a.m.

[229] The Applicant submits that there were differences in the evidence as to where Officer Vittie parked his cruiser at the scene which affects the reliability of Officer Vittie's evidence.

[230] The Applicant submits that because there is evidence that Mr. Smith was wearing sandals, this could be the reason for any unsteadiness noted at the scene.

[231] It is submitted that Officer Vittie did not consider the effect of the violent crash in his observations of the Applicant.

[232] Officer Vittie did not hear slurred speech. He did not observe the Applicant's face to be flushed.

Respondent's Position

[233] The Respondent submits that Officer Vittie had subjective grounds which are objectively verifiable and relies on the case of R. v. Bush, a decision of the Ontario Court of Appeal released August 17, 2010 reported at 2010 ONCA 554, 259 C.C.C. (3d) 127.

[234] The Respondent submits that Officer Vittie was getting ongoing details of the suspected impaired driver who had crashed his vehicle from dispatch as he drove to the scene.

[235] The dispatch call came in at 1:59 a.m. Officer Vittie arrived on scene at 2:09 a.m. He believed that the crash had occurred 20 minutes before his arrival.

[236] He arrived at this 'fresh' accident scene and received information from Mr. Grist who was the caller to dispatch – the eyewitness to the driving and resulting crash.

[237] Officer Vittie was advised that the Applicant had been observed driving all over the road and hit the guardrail. Mr. Grist had approached the Applicant and the Applicant pulled out his police badge and said it was okay. Mr. Grist had smelled booze on the Applicant.

[238] Mr. Grist pointed to the Applicant as being the driver.

[239] Officer Vittie spoke to the Applicant, who gave no explanation for the crash. The Applicant had no idea where he was. He had no idea that he was driving in the opposite direction from his intended destination in Mississauga as he kept pointing to the west.

[240] Officer Vittie did not observe any injuries on the Applicant. The Applicant did not complain of any injuries.

[241] Officer Vittie detected a strong odour of alcohol coming from the Applicant's breath; he was rocking back and forth on his heels on level pavement; his eyes were glassy.

[242] The Applicant had wet clothes that smelled of alcohol, there was beer dripping from his crashed vehicle onto the road. The Applicant admitted to alcohol consumption.

Analysis

[243] In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of the officer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection": R. v. Censoni, [2001] O.J. No. 5189 (S.C.)

[244] This incorrect analysis is precisely what the Applicant has submitted I should do in this case.

[245] The fact that there might be another explanation for some of the factors that the officer properly took into account in forming his opinion of impairment to drive, for example the Applicant wearing sandals, does not eliminate the indicia of unsteadiness, nor does it render it unreliable.

[246] The fact that Officer Vittie was delayed by a few minutes in getting to the scene because of dispatch information is irrelevant.

[247] Where precisely Officer Vittie parked his cruiser is irrelevant.

[248] I accept the position and submissions of the Respondent Crown.

[249] Officer Vittie had ample information and physical evidence to form subjective grounds for arrest and make a breath demand and those grounds are objectively verified.

Decision

[250] The section 8 Charter Application is dismissed.

Defence Evidence Trial at-Large:

Summary:

[251] At the time of this incident, Cody Smith had just finished 3 months of training as a police officer with Peel Regional Police. He worked at 22 Division in Brampton. Four of the officers he worked with were called as defence witnesses in this case; Jamie McKean, Brian Young, Steve Vanderhorden and Sean Creaner.

[252] On August 2nd, 2011, Cody Smith and the 4 defence witnesses all worked the 7 a.m. to 5 p.m. day shift at 11 Division. A social gathering had been pre-planned at Officer McKean's house in Oakville which included a ride on his new boat to a restaurant in Port Credit on Lake Ontario called Snug Harbour. Thereafter, the 5 men took the boat to view Toronto Island, some of them swam in the lake, and they returned to the Oakville Harbour. The 5 men then returned to Jamie McKean's house for more socializing around the pool.

[253] Jamie McKean may have been the first to leave the socializing and he went into his house and retired for the evening. Steve Vanderhorden may have been the second to leave in his vehicle and drive home. (There is a conflict in evidence of McKean – p. 125 and the others) Sean Creaner was the next to leave in his vehicle and drive home. Cody Smith left sometime thereafter. Brian Young slept over that night and drove home the next morning.

[254] All four defence witnesses testified that they consumed a few beers at Jamie McKean's house before the boat ride. They consumed a few pints of beers at the Snug Harbour restaurant. They consumed one or two beers when back at Jamie's house after the boat ride. No one consumed any alcohol during the boat rides. Cody Smith appeared to be drinking the same amount of beer/alcohol as everyone else. None of the 4 witnesses noticed any degree of impairment in Cody Smith during or at the end of the evening. None of the witnesses had any concerns with Cody Smith's ability to operate a motor vehicle when they last saw him in the early morning hours of August 3rd, 2011.

Jamie McKean:

[255] Mr. McKean is 32 years of age. He is married and has 3 children. He has been an officer with PRPS for approximately 10 years, currently in the homicide bureau.

[256] For 3 months preceding this incident, he had been Cody Smith's training officer at 22 Division performing uniform duties.

Steve Vanderhorden:

[257] Mr. Vanderhorden is 29 years of age. He is married and the father of three children. He lives in Campbellville.

[258] He has been a police officer for 5 years with Peel Regional police working in uniform patrol.

Sean Creaner:

[259] He is 37 years of age and lives in Guelph.

[260] He has been employed with Peel Regional Police for 13.5 years and works uniform patrol.

Testimony of Brian Young (last to see Cody Smith before he left for home):

[261] Mr. Young is 36 years of age. He has been a PRPS officer for 15 years and holds the rank of sergeant in the homicide bureau.

[262] Cody Smith was a recruit officer on his platoon at 22 Division for 3 months prior to the events in question. He was Mr. Smith's supervisor.

[263] On August 2nd, 2011 they worked the day shift which starts at 7 a.m. and ends at 5 p.m. That particular day, they took a shortened lunch so they could leave the shift earlier and drive to Mr. McKean's house in Oakville for a pre-arranged social event.

[264] Mr. Young authorized the attendees to leave at 4 p.m. They all drove their personal vehicles to Mr. McKean's house in Oakville. Mr. McKean left earlier than the others.

[265] The drive from Brampton to Mr. McKean's house took approximately 45 minutes. They arrived at the house between 4:45 and 5 pm. Mr. McKean was present. His wife and her parents were in the house.

[266] Mr. Creaner brought a cooler of beers. Mr. McKean had beer he offered. Mr. Smith brought a box of beers but it was not opened. It was placed back into his truck just before he left.

[267] Everyone had some beer at Mr. McKean's house before he drove them all to the Oakville marina to board the boat. They were at the house for between one to one-and-a-half hours.

[268] Mr. McKean drove them all to a restaurant in Port Credit on the lake called Snug Harbour.

[269] They ate dinner and consumed beer at the bar in Snug Harbour for approximately 2 hours. (Mr. Creaner says 3 hours at p. 80)

[270] Mr. McKean then drove them for a tour on the lake in his boat out to Toronto Islands. Some of them took off their clothes and went for a swim in the lake. They arrived back at the Oakville marina around midnight.

[271] They swam and socialized back at Mr. McKean's house for another one to one-and-a-half hours.

[272] According to Mr. Young's time estimates, Cody Smith would have driven away from the Oakville house, presumably heading back to his home in Mississauga, between 1 and 1:30 a.m. (Note: accident in Burlington at 1:58 a.m)

[273] Mr. Young testified that at Snug Harbour he "didn't really notice what he (Smith) was drinking, or how much of it."

[274] Cody Smith was swimming back at the house.

[275] Steve Vanderhorden left first. Sean Creaner and Cody Smith left at the same time. He walked them to their vehicles to say goodbye, went back inside and slept for the night.

[276] He stayed over because he lived 45 minutes north of Barrie at the time; he was exhausted having worked the day shift that day and was not up to making the long drive. He cannot recall when he made the decision to stay over.

[277] He was outside with the other men when Mr. McKean went to bed – he cannot say what time Mr. McKean went to bed.

[278] He did not know at the time where Mr. Smith lived.

[279] He specifically recalls Smith not drinking back at the house – he was completely sober to drive.

[280] Cody called him from the accident scene – the call woke him up. The call ended with the OPP officer at Cody's window.

[281] He then called Jamie on his cell phone to tell him what happened – he did not know where Jamie was in the house.

[282] He was not impaired by alcohol that evening – he was tired; everybody was tired.

Position of the Parties on Whether Impaired Operation Has Been Proven Beyond a Reasonable Doubt:

(Note: The parties provided full written submissions on this final part of the trial. Accordingly, I will provide a summary only)

Defence Position

[283] The Defence submits the Crown has not proven that the Accused's ability to drive was impaired by alcohol at the time of driving beyond a reasonable doubt.

[284] It is submitted that any signs of impairment at the scene were equally consistent with the expected signs exhibited by an individual who had just been involved in a violent motor vehicle collision. Mr. Grist agreed that any unsteadiness of the Accused could have been attributable to the collision.

[285] The Defence submits that the Crown witnesses gave inconsistent and conflicting evidence resulting in such a state of unreliability that it would be extremely dangerous and imprudent to attribute great weight to same in relation to impairment of the Accused.

Re: Mr. Grist

(1) Mr. Grist testified that he was travelling at a speed of 105 k/hr. (his maximum governed speed) when the Accused passed him on the passenger side and moved into the eastbound lane about 30 feet ahead of him. The Accused was travelling at a speed of approximately 125 k/hr. He followed the Accused for 1 to 1½ kilometres before the Accused's pick-up truck left the roadway. At the time of the collision Mr. Grist maintains he was 80 feet behind the Accused. Given the fact that the distance between the two vehicles increased only by 50 feet over the distance of the 1 to 1½ kilometres the speed given by Mr. Grist cannot be correct and reveals his observations are inaccurate and greatly exaggerated.

(2) Mr. Grist stated that the location of the collision was on a curve and it was of such significance that he would not use his cell phone when trying to manoeuver said curve.

(3) Mr. Grist stated that the pick-up truck took out barrels at the bullnose or start of a guardrail to the right of the highway. The police witnesses stated that there were no barrels.

(4) Mr. Grist testified as to the pick-up truck sustaining damage on the driver's side. The police witnesses testified as to damage on the passenger's side of the pick-up truck.

(5) Mr. Grist said he smelled "Crown Royal rye" when he went to the pick-up truck when the Accused was still seated in it. The police witnesses spoke of broken beer bottles and of beer flowing out onto the roadway.

(6) Mr. Grist stated that the Accused was leaning on the barrier when Officer Vittie approached the Accused. Officer Vittie said that when he first saw the Accused and approached him he was standing in lane 2 of the eastbound QEW.

Re: Officer Vittie:

(1) It is submitted that Officer Vittie erred in not attributing unsteadiness at the scene to the violent collision. Officer Vittie noted no other times when the Accused was unsteady in his presence.

(2) Officer Vittie's note-taking was poor and, based on the Court's finding on the s. 10(b) breach, the Court cannot rely upon this witness' evidence to support proof of the Accused's impairment to drive beyond a reasonable doubt.

Re: Officer McCulloch:

(1) It is submitted that the Accused was in the presence of this Officer from 2:30 a.m. until 3:12 a.m. He testified that he smelled the odour of alcohol, but was not sure if it was emanating from the Accused's breath or clothing. He observed the Accused's face to be flushed. No other indicia noted.

The Four Defence Fellow Police Officers:

None of them saw any indicia of the Accused's impairment to drive whatsoever when he left Oakville.

The defence submits that the Crown has not proven even a slight impairment in the ability to drive in this case and the Accused must be acquitted.

Crown's Position

[286] The Crown submits that where evidence is excluded pursuant to the Charter for a s. 10(b) breach, the Court determines when the breach occurred and excludes all evidence subsequent to that. The evidence is not parceled out to inculpatory vs. exculpatory evidence, and only the inculpatory evidence excluded.

[287] The principled manner to address the result of the Charter breach is for the Court to exclude all evidence following the breach. The Crown understands, based on the s. 10(b) ruling, that this would result in the exclusion of all evidence after the rights to counsel were read.

[288] If the Court concludes that a category-based approach as to evidence is correct as opposed to a temporally-based one, and the readings and utterances are to be therefore excluded but observations utilized, then the Crown submits that all observations by all officers should be included, not just those selected as exculpatory by the defendant.

A. Previous Submissions as to Facts

[289] The Crown relies upon paragraphs 24-30 of the Crown's Charter Submissions with respect to the evidence of Joseph Grist. The previous summary details Grist's evidence of the events after the crash and his interactions with and observations of the defendant. Additional details for Joseph Grist will be provided below in Section C.

[290] The Crown relies upon paragraphs 32-34 and 52-75 of the Crown's Charter submissions with respect to the evidence of the involved officers. Additional details will be provided below in Section C as to their observations of the defendant.

B. Additional Facts – Joseph Grist and Involved Officers

[291] Grist was aged 32 at the time of the events, an experienced professional truck driver operating a fully loaded tractor trailer combination with a double set of "pup trailers", one attached to the back of the lead trailer. The events he observed began in the early morning hours of August 3rd, at 1:40 to 1:50 a.m. Grist was on the QEW westbound, heading into the QEW/403 split.

[292] Grist was pulling into the third lane in order to be in the proper lane to make the switch to continue on the QEW to Niagara. As he prepared to change lanes, he saw a vehicle coming up behind him in his mirrors, and he waited to change lanes. The vehicle then passed him on the right, very close to his truck, and changed lanes in front of him, going right across that lane and halfway into the HOV lane and then back. As Grist saw the vehicle proceed down the highway it continued to swerve between the two lanes from the left to the right. These lane changes were not signaled and no other vehicles appeared to be causing these moves. These lane changes occurred multiple times.

[293] From the position Grist was in when it started, he was concerned that the driver of that vehicle was intoxicated and he contacted the OPP by phone. The suspect vehicle was a Black Dodge Ram 1500, a pick-up truck, single axle.

[294] As Grist continued toward the split, the vehicle had accelerated ahead, and must have been 80 to 100 feet ahead. As they got into the two lane section of the split, continuing Niagara bound, he observed the driver continuing to go into the left and right lanes. He went into the left lane, got really far into it, then pulled to the right really hard, hit the rumble strip, continued straight and hit the crash barrier right at the beginning with the passenger side of his pick-up truck. The first four feet of the barrier has the water barrels with metal guardrail, before the cement. When the vehicle struck the barrier, it took out the barrels, the metal part of the barrier and hit the cement portion before spinning out and going into the left lane, hit the ditch and then came back in there and came to a complete stop in the right lane.

[295] Grist did not lose sight of the pick-up from the first time he saw it until it hit the barrier. The traffic conditions during the time of his observation were light. The weather was fair, no rain. The lighting was excellent. There was nothing about the road that was interfering with his ability to drive. There was no construction in the area, no limitations in the lanes, no signs warning of danger ahead. When the crash occurred, the vehicle was about 100 feet in front of him. When Grist first saw the vehicle, he himself was at top speed, 105 kph. The vehicle passed at about 115-125 kph.

[296] Grist was in the right lane. When the crash occurred he got on the brakes of his truck. At that time there was a gray Volkswagen Jetta on his left. Grist's main concern was getting his truck stopped. He stopped between 6 to 8 feet from the back of the pick-up. As he was stopping he is seeing parts flying, dust and smoke, and the sparks from the undercarriage of the truck as it slides to a complete stop in front of his semi. When Grist got his truck stopped, he grabbed his CB and hollered on his radio to let other drivers know there was an accident in the right lane. He called 911 on his cell phone and got out of his truck to check on the driver of the pick-up. The Jetta drove past the pick-up and parked on the shoulder. At this point Grist's truck is sitting in the right lane with its four-ways flashing so vehicles would see it. His rationale was that the safest thing was to leave it there to warn other drivers and worst case scenario it would be hit rather than him or the other driver. Protection of others was consistent with his training.

[297] The front end passenger side of the truck was completely destroyed; the rim on that tire was snapped. The centre cap of the rim was still attached, but the rim itself was somewhere in the field. The left side of it had gotten some damage when it hit the ditch or barrier on the other side before it bounced back onto the road. When it hit the ground it lost both rims on the left side of the vehicle and spun around. The pick-up truck was facing Grist's tractor trailer, facing east. Grist did not see any apparent sign of injury on the driver (that he saw exit the pick-up, identified by him as the defendant). Grist was looking for signs of injury; the operator asked if he was injured. Grist asked the driver/defendant if he was OK when he first went to the vehicle and the defendant said he was fine. Nothing Grist saw contradicted that statement or caused him concern.

[298] When Cst. Vittie arrived, he noted the position of the vehicles and briefly interacted with Joseph Grist, who gestured to the defendant. Vittie then went to the defendant, who was alone, talking on the phone near the pick-up truck, in the middle of the highway, the live lane. Vittie could smell the booze on the defendant. Vittie saw a liquid dripping from the truck and broken beer bottles.

[299] Vittie asked the defendant a few questions. Vittie found that the defendant had a strong odour of alcohol coming from his mouth as he spoke. The defendant had glassy eyes and some wetness to his clothing with an odour of alcohol coming from there. The defendant was rocking back on his heels as he spoke, on level pavement. Vittie did not see any injuries on the defendant; Vittie was looking for those as it was apparent there was quite an impact. There was no complaint of injuries or sign of injuries and the defendant appeared to understand Vittie. Cst. Vittie did not make any observations of note as he walked the defendant back to his SUV after the arrest. The defendant was not handcuffed, as a professional courtesy.

[300] Cst. Vittie attributed the defendant's initial swaying on his feet to impairment, but to the alcohol. He did not think swaying like that would be usual for an accident; it is rare in his experience. Yes, this was a violent collision, but folks are safer in a pick-up truck, having a full frame. There is a reason why he himself purchased a pick-up truck. Vittie did not note any slurred speech or flushed face. There was no difficulty walking post arrest at the roadside or station. He was never handcuffed. It is not unusual for a person to be unsteady at the scene but not back at the station. Vittie believes that once people realize the jeopardy they are in, they are more conscious of the things they do, they can do that. When Vittie paid him the courtesy of driving him home several hours later, he did not notice or make notes of signs of impairment at that time.

[301] Cst. McCulloch assisted with the custody of the defendant back at the OPP detachment and the Prisoner Custody Report, and was with the defendant as he walked from the arrival at the detachment, to the cells, to the front of the detachment where he was lodged in an interview room, and also when the defendant walked back to the rear of the detachment to speak to Duty Counsel. The defendant did not appear to be injured, that was a relevant issue for him, it is part of the Report. Had he found anything wrong with the defendant he would have obtained assistance for him. By way of observations, McCulloch noted – steady on his feet, flushed cheeks, smell of alcohol, he did not note from where and does not recall today. McCulloch saw no difficulty with the defendant handing over his wallet, no fumbling. McCulloch made no notes of anything about the defendant's eyes, does not recall anything about them.

[302] The Qualified Intoxilyzer Technician was Cst. Sobilo. He testified that the defendant had the odour of alcohol on his breath and his face appeared pale. His eyes were glassy (not bloodshot or watery), his speech fair but slow (not slurred). When Sobilo saw the defendant walk, he was slightly unsteady on his feet (not swaying, stumbling or staggering), as he walked. Sobilo did three one-way trips with the defendant between the front of the station where the interview room was and the back of the detachment where the Intoxilyzer room was. When Vittie first brought the defendant to the Intoxilyzer room, Sobilo saw unsteady walking at that time as well. Sobilo concluded that the defendant's ability to operate a motor vehicle was slightly impaired by alcohol, 5 out of 10. When Sobilo originally completed the form, he forgot to fill in the opinion as to ability to operate a motor vehicle; he filled it in for effects of alcohol. The defendant was able to take the mouthpiece out of the plastic and insert it, and appears to understand what is going on.

C. Defence Evidence

[303] The defence evidence as to alcohol consumption and impairment did not come from the defendant, but from his friends, fellow police officers, who were drinking with him that night. None of them witnessed the collision, knew its details, or saw the defendant driving a motor vehicle. He did not drive or operate the motor boat in their presence. All of the men were drinking throughout the evening, before the boat trip at the McKean home, at the restaurant, and after the return to the McKean home, except when on the boat. There were no assigned seats throughout the evening; all of the men moved freely. None of them counted the beverages the defendant consumed at any location. There were no bills kept or any recollection as to method of payment or who paid. There have been discussions between the defence witnesses as to what happened. None had any notes of the events.

[304] Some further detailed references to salient points of evidence specific to each witness follows. This is not a complete summary of their evidence.

[305] The party host, Jamie McKean, retired to bed an hour (maximum) before the defendant left. McKean saw Steve V. off, and then retired for the night and went upstairs. He testified that he last saw the defendant in his backyard and that he showed no signs of impairment whatsoever, walking, talking, normal speech. In cross-examination he agreed it could have been the defendant just sitting there that he was relying on. McKean had no concerns about his ability to drive vis-à-vis alcohol. They had all been up at 5:00 a.m. to work and were pretty tired. They worked in full uniform and it was a sunny day. It is tiring to work on a hot day, but he cannot recall the condition, the heat that day. McKean agreed that he felt guilty about what happened to the defendant and he would help him out if he could. He has not socialized or worked with the defendant since that night, but has kept in touch with him by phone, to show support, perhaps 15 or 20 times by phone. The defendant is considerably smaller and slighter than he is. He has no notes of what happened on his personal time, nothing to refresh his memory. He did not document his own consumption at the time, knowing he could be a witness later, and knowing that was a question he would ask a witness as an officer.

[306] McKean said that it would take 15 to 20 minutes for someone to drive from his home to the QEW/403 split, assuming they entered the QEW at Trafalgar, the most direct route. McKean believed that the defendant lived in Mississauga, Mavis and the 407, and assumed that the defendant was going home. He had no discussions with the defendant about how to best get home. McKean understands that the crash took place 15 to 20 minutes west of his residence.

[307] Steve Vanderhorden said that when he left at about 1:00, the defendant showed no signs of impairment, referring to the indicia of impairment that Mr. Lent led him on. Further, that he was not concerned about the ability of the defendant to operate a motor vehicle being impaired. In cross-examination, asked if made a point of evaluating the defendant's condition before he left, Vanderhorden said "No, I don't make the point of evaluating anyone's condition when I'm off duty". It is more of an after-the-fact perception and he would not be thinking about it if not in this courtroom. It is fair to say that he was not himself concerned about the sobriety of the others. He was not the host and he knew there was an offer to stay. Having left first, he sincerely does not know the defendant's condition when he left.

[308] Sean Creaner said that he left at the same time as the defendant, and that Brian Young said goodbye to both of them at the end of the McKean driveway. Asked by Mr. Lent whether or not the defendant was impaired by alcohol vis-à-vis driving a motor vehicle, he said that the defendant did not appear intoxicated and was not showing any of the signs that he has seen over the years typical of an impaired driver or someone who should not be driving. Mr. Lent then led him on a series of indicia that he said were usual for this kind of case, and Creaner agreed that the defendant was not showing those. Creaner then agreed that he was not at all concerned about the defendant's ability to operate a motor vehicle in relation to impairment by alcohol.

[309] When Creaner was asked how many people were swimming when they returned to the McKean home, was it two or three, he said he would be guessing. He said that he knew what he had done and "he wasn't sort of paying attention to anyone else that evening." When it was suggested that when Mr. Lent was asking questions about alcohol indicia, that he was not paying attention to those, he disagreed. He did agree that he could not say how much alcohol the defendant had throughout the night or whether it was anything other than beer. He did not recall what Bryan Young looked like. He recalls Bryan saying he was tired. When asked if he recalled any physical indicators that Bryan was tired, he does not recall seeing any indicators of that. He is not sure if Bryan looked more tired than anyone else. He did not seem to be falling down; he may have been tired. Yes, he had pulled over people that are tired. He says that it is hard to tell when someone is tired when spending only a short time with them. He does not think he has ever said that to anyone (too tired to drive) that he has spent any length of time with.

[310] Bryan Young says that upon the return to the McKean home, he saw the defendant swimming, socializing, but not drinking, he does not recall the defendant drinking. He saw the defendant and Sean off when they left, then entered the house and stayed over. Asked if he was concerned about the defendant's ability to operate a motor vehicle being impaired by alcohol, he said no concern at all. Asked if the defendant was showing any signs of impairment, he said none whatsoever. After asking the witness to describe his entire policing career, Mr. Lent put a list of physical indicia to Young and asked if he saw any of them on the defendant when he left that night, Young said nothing of that nature, no, no signs of impairment whatsoever.

[311] Young said he stayed over at the McKean residence that night for several reasons – first, the opportunity; second, that he lived 45 minutes north of Barrie; and, third, that he was exhausted from working the last of their day shifts and he did not have it in him to drive to Barrie. This was not pre-planned. McKean agreed to it before he went to bed. Asked about the weather that day, Young said that he did not have a recollection of what it was like at work that day. Day shifts are exhausting anyways.

[312] Young agreed that he himself was drinking beer back at the McKean house; he recalls having a beer with Creaner. He does not recall Steve or the defendant drinking back at the house. He does not recall or know if McKean was, he did not make note of it. When it was suggested that he equally did not take note if the defendant was drinking back at the house, Young responded that he did specifically recall that that the defendant was not drinking then – asked why, Young said "I remember him being completely, in my view, sober to drive. Asked to agree that is a different issue than his specific recollection, Young said that he was the supervisor and that he would not let the defendant drive if he showed signs of impairment. Asked to agree that he was not paying attention to what the defendant drank back at the house, he would not agree.

[313] Young found out about the incident when he was awakened by a call from the defendant. The OPP officer was at the window of his vehicle, according to Cody. Cody said "he is at my window", in the moment during the call. Young then called McKean to tell him on his cell because he did not know where McKean was in the house (they were both in). When he got the call he felt terrible for the defendant; he did not feel responsible. He understood it to be a single motor vehicle collision. It came to him the very next day that it would affect the defendant's employment. He knew he could be a witness in court or at an internal affairs hearing, but he made no notes. Asked about preserving his memory, he said that he was off duty, it was not a police issue, they were not arresting anybody, he was there to have off-duty social time and go for a boat ride. He never acted as a police officer that night, in any way whatsoever, he acted as a friend and what he felt was looking out for his guys. He is the supervisor.

[314] Young was exhausted that night. Asked twice as to whether it was his evidence that the alcohol had no effect on him, he said he did not know, but he says he was not impaired. He would not agree that the alcohol contributed to his exhausted state. He does not agree that he was not paying attention to whether or not the defendant was impaired. He was acting as a friend. He has taken away keys and stopped persons from driving impaired before. He does not agree that he realized after the fact that he was wrong and the defendant was impaired. He does not know the evidence of the independent witness, he is relying only on his own perceptions. He believed everyone was tired that night. He did not know how far the defendant had to drive, he does not recall where the defendant was going and did not give him directions. He did not suggest that anyone other than himself stay, it was not his place to suggest that.

Legal Principles

[315] In order to convict the defendant of impaired driving, the Court must be satisfied that his ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence establishes any level of impairment from slight to great, the offence is made out.

R. v. Stellato, [1993] O.J. No. 18 (C.A.);, [1994] 2 S.C.R. 478

R. v. Moreno-Baches, 2007 ONCA 258, [2007] O.J. No. 1314 (C.A) at para 2

[316] The absence of overt signs of impairment does not necessarily lead to a finding of reasonable doubt as to impaired driving. It must be remembered that the offence is impairment of the ability to drive a motor vehicle. Where there is evidence that the complex tasks required to drive were impaired by alcohol, and evidence that he or she consumed alcohol, it is open to the trier of fact to conclude that the defendant's ability to drive was impaired by the consumption of alcohol.

R. v. Kumric, [2006] O.J. No. 4886 (S.C.J) per Durno J. at paras 22-26; 30-32

R. v. Chan, [2011] O.J. No. 3329 (S.C.J.) at paras 11-16

[317] The Crown asks the Court to find that the significantly erratic driving, the serious single motor vehicle collision and the post-collision conduct of the defendant, as observed and reported by Joseph Grist, were not explained by any external circumstance arising from the evidence at trial other than the impairment of his ability to drive by the consumption of alcohol. Further, that no circumstance internal to the defendant arose from the evidence at trial to explain these events, other than impairment of his ability to drive by the consumption of alcohol.

[318] Clearly, the defendant consumed alcohol prior to driving. No one testified to precisely what amount or at what time. There is no evidence that the defendant was injured in the collision and no evidence as to his subjective perception of how he reacted to it, physically and mentally, other than he saying he was OK and asking others to leave. The Crown submits that the fact of the collision does not explain away the observed physical symptoms.

[319] As summarized above and in the Crown's Charter submissions, the evidence shows some (but clearly not many) of the so-called classical physical symptoms of impairment. The Crown submits that, nevertheless, the facts of this case demonstrate that the defendant's ability to operate a motor vehicle was impaired by alcohol, beyond a reasonable doubt.

[320] The Crown submits that the evidence of the defendant's friends does not raise a reasonable doubt as to whether or not the defendant's ability to operate a motor vehicle was impaired by alcohol. The Crown submits that their opinion evidence as to the defendant's impairment, arising as it does in the context of a free-flowing social setting where all consumed alcohol and a lack of ability to be specific as to the amount and timing of his or their own consumption of alcohol, amounts to both an after-the-fact rationalization of their own decision to not stop him from driving and a misguided attempt to assist a friend and colleague. They had no opportunity to perceive the defendant at the crucial time, when he was driving erratically and having the collision and immediately thereafter.

[321] Further, the defence witnesses testimony about the relevance of their policing experience is not appropriate in a context where they were themselves consuming alcohol and did not have the benefit of professional notes about either their own consumption (or even a specific recollection on this issue) or any of the other events. The details of alcohol consumption was the very issue that McKean agreed he would ask about as an experienced officer when interviewing a witness. These witnesses wanted to use their professional experience to persuade the Court of the correctness of their viewpoint, but quickly took refuge in the fact they were off duty when pressed as to why they did not take notes when they knew they could be witnesses. They wanted to use their professional experience in assessing impairment in a context where they were not, in fact neutral, professional, 100% alcohol free on-duty observers.

[322] The fairest comment on this subject was that by Vanderhorden, who agreed in cross-examination that he did not make a point of evaluating anybody's condition when he was off duty. Vanderhorden, like McKean, left the social gathering some (unspecified) time before the defendant left, and cannot say in what state he left or what he did after they left.

[323] Creaner agreed that he was not sort of paying attention to what anyone else did that night, but still claims that he can say that none of the indicia of impairment listed by Mr. Lent applied to the defendant. The Crown submits that it is very telling that he made no observations of the condition of Young, who says he was so exhausted that he needed to stay over.

[324] The Crown asks the Court to find that Young was a particularly argumentative and partisan witness. Young was admittedly too exhausted to drive home and had consumed alcohol himself, of an unknown quantity and timing. His rationale for what he claimed was effectively a pre-driving inspection of the defendant (apparently without communicating same to the defendant) was to act as a friend, and make sure the defendant was not impaired, as he had stopped persons from driving impaired in the past. However, he did not know how far the defendant had to drive or in what direction, or exactly what the defendant had consumed or when. Those would be relevant details to any real assessment of the defendant's condition, how the defendant actually felt and the task he faced in driving away from the McKean residence. In the end, despite Young's claim that he evaluated the defendant for impairment as a friend, he said that it was not his place to suggest that anyone stay over other than himself.

Final Analysis

[325] I agree with paragraphs 4 through 39 of the Crown's summary of the evidence and their position in this case.

[326] I delivered verbal reasons with respect to the s. 10(b) Charter breach and the remedy under s. 24(2) on April 25, 2014, and that matter is not being re-opened in these final Reasons for Judgment, as suggested in the Crown's written submissions in paragraphs one, two and three.

[327] This case involves Cody Smith, a junior police officer, who had been socializing and consuming alcohol with his colleague officers on their off-duty time, getting into his pick-up truck in Oakville with the intention to drive to his home in Mississauga. He did not make it.

[328] Cody Smith, for approximately 15 to 20 minutes of driving on the QEW, travelled the exact opposite direction from his intended destination as he drove westbound, toward Hamilton. Before the QEW/403 split in Burlington, an experienced tractor-trailer driver, Mr. Grist, made significant observations of erratic driving, swerving over all lanes of the road, multiple times and speeding (115 to 125 k/hr.) as detailed many times in the written reasons above.

[329] I conclude that due to impairment in his ability to drive by the consumption of alcohol, Cody Smith was lost, he was speeding, he was swerving all over lanes in the highway and he violently smashed his pick-up truck into the guardrail which resulted in his truck spinning around and facing oncoming traffic.

[330] It is significant that the tractor-trailer combo driven by Mr. Grist was barely able to avoid colliding with Smith's pick-up truck. Mr. Grist, with great attention and skill, was able to bring his 41,512 pound vehicle to a stop a mere 6 to 8 feet from Smith's demolished pick-up truck.

[331] The bad driving in this case was serious. It is fortunate that there was no bodily harm or fatalities.

[332] After causing this danger to others on the highway, it is significant that Cody Smith pulled out his new police badge and told citizens who had stopped at the scene that it was okay and that they could leave.

[333] This arrogant and totally inappropriate use of his police badge is something I also attribute to his seriously impaired judgment due to alcohol consumption.

[334] Mr. Smith told the civilians at the scene that he was fine. He made no complaints of injuries to anyone. There is no evidence to support the defence position that the indicia of impairment noted at the scene was due to the collision.

[335] Mr. Grist and Officer Vittie noted Mr. Smith's physical unsteadiness at the scene. I reject as mere speculation that his wearing sandals at the time had anything to do with it.

[336] Mr. Grist smelled booze on the Accused's breath. It is irrelevant that Mr. Grist thought it smelled like Crown Royal rye.

[337] Officer Vittie smelled alcohol on the Accused's breath and noted that his clothes were wet and smelled of same. Officer Vittie noted glassy eyes.

[338] Mr. Grist was an impressive witness and an experienced highway driver. I accept his evidence as accurate, reliable and true.

[339] I reject the defence submission that Mr. Grist exaggerated his evidence. Mr. Grist testified that the Accused was travelling at a speed of 115 to 125 k/hr. when he was driving all over the road. The defence submission outlined as point (1) in the written submissions is a misstatement of the evidence.

[340] The defence submission that the collision took place on a sharp curve does not create any doubt as to impairment to drive in this case. If anything, it strengthens the case that Mr. Smith was not able to drive properly and did not appreciate what part of the roadway he was driving on.

[341] The fact that Mr. Grist spoke of barrels being hit before the guardrail and then concrete is trifling and does not leave me in a state of reasonable doubt in the matter. The collision resulted in debris all over the road.

[342] Further, Mr. Grist did detail in his evidence the extensive damage to the passenger side of Mr. Smith's pick-up truck. The fact that he saw some damage to the driver's side panel too does not leave me in a state of reasonable doubt on the issue of Smith's impairment to drive.

[343] Where exactly Mr. Smith was when Officer Vittie first saw him was not a matter of confusion. Before Officer Vittie approached, Mr. Smith he had been leaning on a barrier with cell phone in hand.

[344] Officer Vittie spoke to Mr. Grist first and then saw Mr. Smith standing in lane 2 of traffic. Mr. Smith was leaning and then he stood up. He was swaying from side to side as he stood.

[345] Officer Vittie and Officer McCulloch back at the station did not note any more indicia of impairment. Officer McCulloch was the booking officer. It was one of his jobs to note if there were any injuries. There were none.

[346] The fact that Officer Vittie messed up the rights to counsel does not affect my assessment of his reliability as to what he observed at the scene. His evidence was consistent in that regard.

[347] The four police officer friends' evidence does not leave me in a state of reasonable doubt in this case. I agree with the Crown's submissions above and repeat that the relevance of their policing experience is not appropriate in a context where they themselves were consuming alcohol and did not have the benefit of professional notes about either their own consumption or any other events.

[348] These witnesses attempted to use their professional experience to persuade the Court of the correctness of their viewpoint on Mr. Smith's condition, but they quickly took refuge in the fact that they were off duty when pressed as to why they did not take any notes when they knew they would be witnesses in this case. They attempted to use their professional experience in assessing impairment in a context where they were not in fact neutral, professional, 100% alcohol-free observers.

[349] The most cogent evidence in this case is the extremely erratic driving witnessed by Mr. Grist, Mr. Smith's interactions with the civilians at the scene, and the observations of Mr. Smith by Officer Vittie at the scene.

Final Decision

[350] I am satisfied that the Crown has proven beyond a reasonable doubt that Cody Smith's ability to operate a motor vehicle was impaired by the consumption of alcohol and a finding of guilt is registered.

Released: November 6, 2014

Signed: "Justice L.M. BALDWIN"

Obiter:

This case was judicially pre-tried on March 2, 2012 with Mr. Lent as counsel. Four witnesses were noted for the Crown; one possible witness for the defence. The matter was set for one day. This case took 5 days of trial time. Nine witnesses were called. Three Charter Applications were filed. Written and verbal submissions were received throughout this long trial which started April 16, 2013 and finished today, November 6, 2014.

This is yet another case of counsel seriously underestimating the time their trial will take from start to finish. This has become a chronic problem in Halton Region that has resulted in reserved judgments being delivered months after the evidence in a trial has ended due to the continuing pile-up of reserved judgments.