Ontario Court of Justice

Date: January 9, 2014

Court File No.: Orangeville 12-1156

Between:

HER MAJESTY THE QUEEN

— AND —

MELISSA ESSON

Before: Justice J.W. Bovard

Heard on: September 5, 12 and October 28, 2013

Reasons for Judgment released on: January 9, 2014

Counsel:

• M. Poland, for the Crown
• M. Engel, for the defendant Melissa Esson

BOVARD J.:

Introduction

[1] These are reasons for judgment after the trial of Melissa Esson on charges of 'Over 80' and impaired driving arising out of an incident that occurred on September 7, 2012.

[2] The police received a report that Melissa Esson had left a party and was driving her car while her ability to drive a motor vehicle was possibly impaired by alcohol. Detective Brindley investigated and saw Ms. Esson driving. He saw that she did not stop completely at some stop signs and appeared lost. Officers McMillan and Crowhurst saw her swerve in her lane and cross over the centre line once. The police pulled her over and spoke to her.

[3] Ms. Esson took an Approved Screening Device breath test and failed. Officer McMillan arrested her for 'Over 80' and took her to the police station for breath tests into an Intoxilyzer breath machine. She registered readings over the legal limit and the police charged her with 'Over 80' and impaired driving.

[4] Throughout the incident an issue arose over whether the police allowed Ms. Esson to exercise her right to counsel. She testified that she told them that she wanted to call her father and boyfriend to get the name of a lawyer. The police deny this and they called duty counsel for her.

[5] Delays were caused because on his way to the police station to administer the breath tests to Ms. Esson the Intoxilyzer technician stopped to attend to a suspected impaired driver. In addition, after Ms. Esson gave her first breath sample, the Qualified Intoxilyzer technician had her wait until he administered a breath test for another person. This delayed the completion of both of Ms. Esson's breath tests above the time that it normally takes. The defence submits that the police caused a delay by calling duty counsel in spite of the fact that Ms. Esson did not request to speak to duty counsel. The Defence also submits that the breath technician did not administer the breath tests within the required two hours from when the offence was alleged to have been committed.

[6] During the breath testing procedure Ms. Esson made certain statements that the Crown wants to introduce as evidence. The defence contests the voluntariness of the statements.

Issues

[7] The Defence raised the following non-Charter issues:

1. Did the Crown prove beyond a reasonable doubt that Ms. Esson's ability to operate a motor vehicle was impaired by alcohol?

2. Did the Crown prove beyond a reasonable doubt that the Qualified Intoxilyzer technician administered the first breath test within two hours?

3. Did the Crown prove beyond a reasonable doubt that the Qualified Intoxilyzer technician administered the breath tests as soon as practicable?

4. The voluntariness of Ms. Esson's statements to the Qualified Intoxilyzer technician recorded on the videotape in the breath room.

[8] In addition, the defense brought a Charter Application for the exclusion of the results of Ms. Esson's Intoxilyzer breath tests due to infringements of her rights under the Charter. The issues are the following:

1. Did the police breach Ms. Esson's rights under s. 8 of the Charter because the arresting officer did not have reasonable and probable grounds to arrest her for 'Over 80" and make a breath demand pursuant to s. 254 (3) of the Criminal Code?

2. Did the police breach Ms. Esson's right to counsel under s. 10(b) of the Charter?

3. If the police breached any of Ms. Esson's rights under the Charter, should the evidence of her breath tests be excluded under s. 24 (2) of the Charter?

The Evidence

[9] Detective Brindley testified that on the day in question he received information at 9:59 p.m. that a female who was under the influence of alcohol was leaving a party on Pearl Street and would be driving a gold Sunfire car with a certain licence plate number.

[10] He went towards the area and at 11:43 p.m. he saw a car that matched the description. Later, it became known that Ms. Esson was the driver. The car pulled in front of him at an intersection. The vehicle drew his attention because it was gold, which was "kinda rare" for that type of car and it did not come to a complete stop as it turned in front of him and headed westbound on Ellwood Drive.

[11] He followed the car and noticed that as it approached an intersection the driver did not come to a complete stop at the stop sign, but only tapped the brakes. He estimated that it went through the intersection at 20 to 40 KPH.

[12] The driver turned in front of the officer and headed westward. He kept following the car. It came up to an intersection that was controlled by a signal light. The light was red, but the driver did not stop completely and turned right. The officer kept following the car and because of the path that it took, he surmised that the driver was lost.

[13] The driver came to a stop sign at Station Road. Detective Brindley said that the driver came to a complete stop there and waited for a few seconds before turning left on to Station Road. The driver went north to King Street and turned left. At that point, other officers who had been called to assist took over the investigation. Detective Brindley noted that they stopped the car at 11:48 p.m.

[14] He had followed Ms. Esson for approximately 5-10 kilometers and he did not notice anything about her driving other than what he described above.

[15] Afterwards, Detective Brindley went to the Bolton police station where Officer McMillan, the arresting officer, took Ms. Esson for breath tests. Detective Brindley did not speak to Ms. Esson, but he looked in the interview room and saw her crying. He noted that she was emotional and that her eyes were blood shot. He smelled the odour of an alcoholic beverage emanating from the room.

[16] Officer McMillan testified that on the day in question he was in the probationary status of his training. At 11:35 p.m. the police dispatcher sent him and his "coach" officer, Officer Sarah Crowhurst, to go investigate a possible impaired driver. They were to go to the area where Detective Brindley was following the suspect and the dispatcher gave him the description of the car, plus the licence plate number.

[17] The dispatcher told them that Detective Brindley had seen the suspect run "multiple stop signs", the driver was female and she was driving on Station Road.

[18] They went to the area and saw the vehicle described driving down King Street. It was weaving within its lane and crossed over the centre line one time. They stopped Ms. Esson on King Street.

[19] Officer McMillan spoke to Ms. Esson who had a small dog on her lap. This was the only unusual thing about her. She said that she was coming from a party, but could not remember where the party was.

[20] She told Officer McMillan that she had drunk a few beers, the last being "30 minutes ago".

[21] Officer McMillan asked her for her driving documents. She "rummaged" through her purse and the glove compartment. While she was doing this she sprayed into the air in the car what appeared to be perfume or some sort of scented spray from a bottle.

[22] She found the required documents and when she gave them to him her hands were shaky. Officer McMillan detected the odour of an alcoholic beverage coming from her breath.

[23] In these circumstances, Officer McMillan was satisfied that Ms. Esson had consumed alcohol and that it was in her body, but he was not "satisfied that she was necessarily impaired by that alcohol."

[24] At 11:52 p.m., he made a demand for her to give a sample of her breath into an Approved Screening Device (ASD). She said that she understood the demand, but she wanted to call someone first. She did not say who she wanted to call. He told her that she was not allowed to call anyone at this point. He was concerned with his and his partner's safety because she did not tell him who she wanted to call. He was also concerned that she might want to request legal advice from a person who was not a lawyer. Thirdly, he was worried that it would delay the administering of the ASD breath test.

[25] Ms. Esson ignored him and made the call anyway. He does not remember if she spoke to anyone. The call lasted less than 3 minutes. She ended it "fairly shortly after placing it" to give samples of her breath into the ASD.

[26] He said that he prepared the ASD for use at the roadside. The steps that he followed were:

1. He removed it from its case.
2. He checked the seal to ensure that it was within calibration standards, that is, that it had been calibrated within two weeks.
3. He checked to see who calibrated it.

[27] He did not know the officer's name who calibrated the ASD, but he saw the badge number on the calibration sticker on the side of the machine. He said that at the Caledon detachment "only those qualified to conduct calibrations are permitted to calibrate."

[28] Defence counsel questioned Officer McMillan about his knowledge regarding the calibration of the ASD that he used to test Ms. Esson. Counsel asked him whether he knew "the nature of the calibration and what a fail would mean, what a warn would mean" and whether he determined "the actual calibration of that device before [he] administered it to Ms. Esson?" He put to Officer McMillan that "in terms of information as to what the precise calibration of this machine was, it's something you don't know, you didn't know when you conducted the test? You might have certain assumptions about it, but you don't specifically know what the calibration is?"

[29] Officer McMillan replied that since he did not calibrate the ASD he could not say that he knew this, but he did not know that according to his training the ASDs are calibrated to register a "fail" when a breath sample contains 100 milligrams of alcohol in 100 millilitres of blood.

[30] Prior to administering the breath test to Ms. Esson he did a self-test/demonstration that indicated that the machine was working properly.

[31] Defence counsel asked him what was supposed to be displayed on the ASD's screen after a self-test to indicate that it is working properly. He asked him to tell him "the numbers or the displays that you need to see to satisfy yourself that the self-test demonstrates the suitability of the instrument?"

[32] Officer McMillan said that when a green light illuminates on the screen and a brief tone sounds it means that the ASD is ready and is in proper working order. Defence counsel asked him "whether [he knew] what to expect in order to determine that the machine is working properly in terms of words or numbers" and he said that he did not.

[33] After he determined that the ASD was functioning properly he gave Ms. Esson a mouthpiece. As she was removing it from the plastic wrapping, she dropped it. He gave her another one. She removed the wrapping without a problem and said "This is retarded."

[34] Ms. Esson was very concerned about her dog. She was "almost obsessed over the dog, seemed to consider it more important than the test that was about to be conducted." At 11:55 PM, he demonstrated how to give a proper breath sample.

[35] She made her first attempt at 11:58 p.m., which resulted in an EO (error) message being flashed on the machine's screen. This indicated that she did not blow hard enough. He did not recall if he heard a tone from the machine when the error message appeared on the screen. He only remembered that the tone that sounded while Ms. Esson was blowing into the ASD stopped "as that error occurred."

[36] Defence counsel asked him if he was aware that "the tone can be important with respect to what the error message is that's, that's registered?" He said that he was not aware of this.

[37] Officer McMillan gave her further instructions on how to provide a sample. She interrupted him several times during his instructions saying that she understood.

[38] Next, defence counsel questioned him about the protocol after a person provides a deficient sample.

[39] He asked Officer McMillan what his "training dictates in terms of what you need to do in order to ensure that the device is ready to receive a… Second sample in the context of… What appears to be an initial deficient sample?"

[40] Officer McMillan stated that he pressed the power button once, which clears the error message and then he waited until "the green ready light again activates and a tone is emitted."

[41] At 11:58 p.m., she made her second attempt and registered an "F", which indicates that she failed the test. According to his training, this gave Officer McMillan "reasonable grounds to believe that Ms. Esson had in excess of 80 milligrams of alcohol in 100 millilitres of blood" because the ASD "is set to display the F or the fail at 100 milligrams of alcohol in 100 millilitres of blood." However, he admitted that he did not know from personal experience at what blood-alcohol level this ASD was calibrated to register a "fail", because he did not calibrate the machine.

[42] At 12:00 AM he arrested Ms. Esson for 'over 80' and put her in handcuffs. Officer Crowhurst searched her and then put her in the rear seat of the cruiser. Ms. Esson was crying and continued to refer to her dog that was still in her car.

[43] 12:02 AM, one minute after she was put in the cruiser, Officer McMillan read Ms. Esson her rights to counsel. When he asked her if she understood she said "I understand. I'm being a smart ass." Despite this remark he was satisfied that she understood her right to counsel.

[44] Then he asked her if she wanted to call a lawyer now and she replied "No, I want to call my daddy. I know my rights, I get my free phone call."

[45] Defense counsel, Mr. Engel, asked him, "Was it not apparent to you at that point that, in the context of being asked of whether she wanted to exercise her right and that she said she knew it and that she wanted to call her father, was it not apparent to you that perhaps she wanted to call her father precisely to exercise this right, referable to the obtaining counsel of choice? Did that not occur to you?"

[46] Officer McMillan answered that this was not apparent to him at the time.

Defense counsel followed up by asking him "Would you not agree with me that that at least suggests that it's her father she wanted to turn to, to perhaps get the name of someone that she could call? Did that not occur to you?"

[47] Officer McMillan replied that his understanding of what she said was that she wanted to call her father "simply because she got her free phone call… Not to ascertain legal advice or... the name of a lawyer."

[48] Mr. Engel asked him why he did not "seek some sort of clarification" and suggested to him that "it would be reasonable to assume that the reason she wanted to call her father has something to do with this exercise of the right that you were questioning her about."

[49] Officer McMillan stated that "it may have been reasonable, however, she made no… indication as to that, sorry, she made no indication that was the reason she wished to call her dad, was because she got a phone call." He did not seek further clarification from her because in his opinion she had "provided me with the reason why she wished to call her father and that was because she knows her rights… and she'd get her free phone call." She never said anything to him about counsel of choice. Defense counsel pressed him again suggesting that "perhaps it's implicit and the only question is, why didn't you pursue it?" Officer McMillan said he did not know why he didn't ask her but reiterated that "Possibly because she provided me with a reason … because she gets her phone call. Because she knew her rights … and because she got her free phone call."

[50] He read the caution to her at 12:04 AM and asked her if she understood. She told him that she did. He asked her if he she wished to say anything in answer to the charge. She said that she did not and asked him if he could brush the hair out of her eyes. She made this request three times. He declined. He noted that she seemed to be more concerned with her dog and with her appearance than with the fact that she had just been arrested for a serious crime.

[51] At 12:06 AM he read her the breath demand. When he asked her if she understood she said "Yeah, I did that already. Apparently I'm a failure."

[52] At 12:09 AM, Officer McMillan spoke to a tow truck driver who had arrived on scene about the dog that was in Ms. Esson's car.

[53] At 12:13 AM, the officers left the scene with Ms. Esson to take her to the police station for breath tests into an Intoxilyzer. Officer McMillan did not recall whether on the way to the police station Ms. Esson reasserted her wish to make a phone call.

[54] They arrived at the police station with Ms. Esson at 12:14 AM. When they tried to take her into the station she resisted their efforts to escort her inside. She did not appear to want help getting out of the cruiser or entering the building. Her resistance was slight and consisted of simply a "slight sort of pulling away."

[55] Once in the station, he took her to an interview room where he, as the Officer-in-Charge, booked her into the station. He did not read her again her right to counsel. The booking-in process was not videotaped because there were no videotaping facilities in the room in which she was booked-in. Officer McMillan confirmed that at least one of the interview rooms and the breath room has the capability to audiotape proceedings. He said that the room that he used for Ms. Esson could have been that room.

[56] The Court requested Officer McMillan to clarify his evidence on this point. The Court asked him whether it was his evidence that he "could have videotaped the booking in process but [he] didn't because it would have caused delay?" He replied that "No, I didn't because it was, like at the time it wasn't common practice. I wasn't, it just wasn't something I had ever thought of and wasn't something I was ever coached to do, however, the capability was there."

[57] The station was modernized after this incident and now has the capability to more easily videotape booking-in procedures.

[58] After the booking-in procedure, he put her in an interview room. She was crying and told Officer McMillan that she thought that she had done a good thing that night by leaving "a drug house."

[59] The cell area was monitored by closed-circuit television, but there was no recording capability. At that time, their practice was to not videotape persons being booked into the station because booking typically doesn't take very long, it was simply the practice to "book and, and shuffle to cells." He could have videotaped the proceedings, but at that station there was no automatic videotaping, therefore, it would have had to be "pre setup and initiated", which would have caused delays.

[60] At 12:38 AM, Ms. Esson spoke to duty counsel for five minutes, until 12:43 AM. Officer McMillan did not know who called duty counsel for her. He could not remember if he asked another officer to call duty counsel or if another officer called on his or her own. He agreed that Ms. Esson did not request to speak to duty counsel.

[61] He did not know why this call was terminated. When defense counsel suggested to him that duty counsel called back at 12:46 AM because the call was terminated due to technical difficulties, Officer McMillan stated that that was not his recollection. He disagreed that Ms. Esson spoke to duty counsel three times.

[62] At 12:46 AM, Ms. Esson told him that she was not going to give breath samples. She was of the view that she had already given samples and she wanted to speak to a lawyer.

[63] Although he could have explained the breath demand to her again, Officer McMillan elected to call duty counsel again for her because she said that she wanted to speak to a lawyer and he thought that she may have misunderstood "what her obligations were as a result of what was happening."

[64] Officer McMillan conceded that since Ms. Esson had spoken to duty counsel before she told him that she wanted to speak to a lawyer that it is possible that what she meant was that she wanted her own lawyer there now. He could not say why at the time he did not explore this "further than placing a second call to duty counsel."

[65] Officer McMillan could not recall if Officer Crowhurst was with him when Ms. Esson said that she wanted to speak to a lawyer.

[66] At 1:20 AM, duty counsel, Ms. Julie Peaker, called back. Ms. Esson spoke with her for seven minutes.

[67] At 1:28 AM Ms. Esson went to the washroom and came back out at 1:30 AM. Officer McMillan turned her over to the Intoxilyzer technician, Officer Storey. He did not stay in the breath room during the administration of the breath tests.

[68] At 6:00 AM, when she was finished, Officer McMillan told her what she was charged with and that she would be released on a Promise to Appear. He let her know that "she would be served paperwork by the day shift."

[69] Officer McMillan stated that Ms. Esson yelled throughout the night and that she continued yelling when he was advising her of these things. She was not happy with the conditions of her cell and she demanded a better one. She said that she was not a criminal and that she should not be treated like an animal.

[70] Officer McMillan testified that Ms. Esson never told him that she had her own lawyer and wanted to call him.

[71] Nor did she ever tell him that she needed to call a family member in order to get a telephone number of the name of a lawyer with whom she wanted to speak. Had she done this he would have helped her to obtain the number of the lawyer by calling the family member himself and getting the number and then calling the lawyer to explain the situation, or leave a voice mail message. Had he reached such a lawyer he would have allowed Ms. Esson to speak to the lawyer.

[72] He said that it was important for him to call the family member "to ensure…that who she…wants to speak to is who [ sic ] they are and that the information they're providing me is truthful." He would not "rely on information from a private phone conversation between Ms. Esson and an unknown party and then act on those…wishes."

[73] Officer McMillan understood that it was important to put Ms. Esson in contact with her counsel of choice, if she had one, prior to turning to the "secondary option of…duty counsel."

[74] He eventually called duty counsel for her because she did not provide him with the name of a counsel of choice and he felt that "it was important that her right to at least speak to a lawyer and receive legal advice be satisfied." He said that he knows that it's an accused's right under the Charter "to receive legal advice and legal counsel."

[75] Officer McMillan stated that his practice is to call duty counsel for arrested persons even if they tell him that they do not want to speak to a lawyer. He said that this "at least gives them…one last opportunity, there is a lawyer on the phone who's willing to speak with [the person] for free about what's going on right now."

[76] Officer McMillan testified that initially at the roadside, he was not satisfied that her ability to drive a motor vehicle was impaired by alcohol. He ascribed her poor driving to the dog obstructing her ability to drive in some way. And he chalked up her actions at the roadside to being afraid because she had just been pulled over by a police officer.

[77] However, after considering his interactions with her at the roadside, that she was more concerned with her dog and her hair, her resistance when he tried to take her out of the cruiser at the police station, his and other officers' interactions with her with at the police station, the very strong odour of alcohol and the Intoxilyzer readings and all of the other circumstances, he concluded Ms. Esson's ability to drive a motor vehicle was impaired by the consumption of alcohol.

[78] Defense counsel questioned him about his impression that Ms. Esson did not consider the situation serious. He focused on the fact that Officer McMillan reported that Ms. Esson was crying after he arrested and put handcuffs on her. Defense counsel put to him that "she seemed distraught for some reason didn't she?" The officer agreed.

[79] The Crown's next witness was Officer Sarah Crowhurst. She confirmed the background to the traffic stop, although she said that the dispatcher called her and Officer McMillan at 11:43 p.m., as opposed to 11:35 p.m. as Officer McMillan stated. However, nothing turns on this difference.

[80] She observed Ms. Esson to weave in her lane and at one point her left tires cross the centerline. Her speed was "okay".

[81] After Ms. Esson pulled over to the side of the road she let Officer McMillan take over the investigation. Officer Crowhurst did not speak to Ms. Esson at first, but she noticed that there was a strong odor of perfume coming from her vehicle.

[82] While Ms. Esson looked for her driving documents, Officer Crowhurst took Ms. Esson's dog and held onto it. Ms. Esson had some difficulty locating the documents and she fumbled a bit with some of the paperwork that was in her purse and "some of the items were dropping." It took Ms. Esson a little longer than normal to locate the documents.

[83] Ms. Esson was cooperative and friendly at this point. Ms. Esson told them that she was coming from a party at a friend's house in Bolton and that she had had "a few beers a half hour ago".

[84] Based on Ms. Esson's admission of having consumed alcohol that evening, Detective Brindley's information that Ms. Esson had been driving and her own observations of Ms. Esson's driving, she and Officer McMillan formed a reasonable suspicion that she was operating a motor vehicle with alcohol in her body. Therefore, she returned to their police cruiser to set up the ASD for a breath test while Officer McMillan made the ASD breath demand.

[85] The ASD was an Alcotest 7410 GLC, which had been calibrated on September 2, 2012 by an officer with badge number 12360. The calibration date indicated that it had been calibrated by a qualified breath technician and that it was fit to be used on the road for tests. She stated that the badge number "would be for an officer that is a qualified breath technician. Nobody else is allowed, or is, is trained or qualified to calibrate the ASDs."

[86] She plugged the ASD into the cruiser's power outlet and turned it on. The machine ran through some internal tests. Then she went back to Officer McMillan who was bringing Ms. Esson to the police cruiser for the breath test. Officer Crowhurst looked for signs of impairment in Ms. Esson. She observed how she walked and noticed that Ms. Esson was barefooted. She asked Ms. Esson to perform a "heel to toe" sobriety test, but Ms. Esson just walked with a normal stride both times that she performed the test, that is, she did not put her heel to her toe as she walked. However, she did not have any difficulty with motor coordination or stability. She walked 5 to 10 feet.

[87] Ms. Esson told them that "I can't believe you guys. This is a joke. Really?" In addition, she told them that they were being ridiculous. She found the whole situation to be a joke. She was laughing quite often and giggling. This continued throughout their whole interaction with her.

[88] At 11:55 p.m. Officer McMillan tested the ASD by providing a suitable sample into it. This resulted in a reading of .000. This result came up immediately on the machine's display and indicated that it was working properly.

[89] At one point, Ms. Esson said that she was not going to provide a breath sample. They explained the consequences of not doing so, telling her that there were criminal consequences for refusing to provide a breath sample. She started to cry and became very distracted by the fact that her dog was still in the car. She was very concerned about its well-being. Officer Crowhurst had checked on the dog and it was asleep in the driver seat. She told Ms. Esson this several times but she continued to cry and wanted to see the dog.

[90] Prior to providing her breath sample Ms. Esson told the officers that "This is retarded. Can I hold my doggie?"

[91] As Ms. Esson was opening the package that contained the mouthpiece that Officer McMillan gave her for the breath test, she fumbled with it and dropped it to the ground. Officer McMillan gave her another mouthpiece which she also dropped to the ground.

[92] During all of this, Officer Crowhurst had been making notes. Ms. Esson saw her doing this and asked her if she was taking notes. Then she very deliberately stuck the mouthpiece into the ASD and told Officer Crowhurst to "take note of that".

[93] Ms. Esson's demeanor was starting to change. She was getting verbally aggressive, which she would alternate with crying. The crying seemed to be focused on her concern with her dog in the car.

[94] Her first attempt to give a suitable sample resulted in an error message on the machine's display. This indicated that she had not provided a suitable sample. Officer Crowhurst observed her while she made her first attempt and saw that she "wasn't blowing with enough force, so she didn't blow for as long as she should have, and when she stopped, the error message came up and we had to coach her again on how to provide a proper sample."

[95] She provided a proper sample at 11:58 p.m. and failed the test. This meant that she had more than 100 mg of alcohol in 100 mL of blood in her body. Officer McMillan arrested Ms. Esson for 'over 80' and Officer Crowhurst told her to turn around so she could put handcuffs on her. Ms. Esson replied "Are you kidding me?"

[96] Officer Crowhurst did a quick frisk search of her before putting her into the cruiser and Ms. Esson began to cry and wanted her dog.

[97] Officer McMillan gave Ms. Esson her right to counsel at 12:02 AM and asked her if she understood. She said "No, yes, I'm being a smartass. I understand."

[98] Officer McMillan asked her if she wanted to call a lawyer now and she said "No. I want to call my daddy."

[99] Officer Crowhurst asked her if her father was a lawyer. She said that he was not a lawyer and went on to say" I get my one free phone call. I want to call my dad. I know my rights." The officer wrote these statements down verbatim.

[100] Next, at 12:04 AM Officer McMillan read the caution to her and asked her if she understood it. She replied "can you brush the hair out of my eyes?" She started to giggle and was not listening to what Officer McMillan was reading to her. She repeated her request for him to get the hair out of her eyes three more times before she finally admitted that she understood the caution.

[101] Ms. Esson said that she did not want to say anything and then Officer McMillan read her the demand for breath samples. Officer Crowhurst confirms Officer McMillan's evidence that she replied "Yeah, I did that already. Apparently I'm a failure." This is verbatim.

[102] Ms. Esson's demeanor kept changing. She went from crying for the dog to being very demanding of the police officers and generally uncooperative. She was very concerned about her dog but would not give the officers any information with regard to someone that could come and take care of the dog.

[103] Ms. Esson stated that "This is fucking retarded. You gotta be kidding me. Are you serious? I'm a real criminal all right."

[104] A tow truck came and Detective Brindley arranged that Ms. Esson's car be towed to the detachment with the dog where they would make arrangements for someone to come pick up the dog.

[105] By approximately 12:13 AM or 12:14 AM they had confirmed that an Intoxilyzer technician was on his way to the police station to administer the breath tests.

[106] They took Ms. Esson to the police station. As Officer Crowhurst was escorting her into the station by her elbow Ms. Esson stopped walking. The officer pushed forward on her elbow a little bit to get her moving again and Ms. Esson told her to quit the TV cop act and continued to be demanding and verbally aggressive. She continued to demand that she get her one free phone call.

[107] They took her to an interview room, sat her down, took the handcuffs off of her and asked her some questions. She started crying again and told them that she had been at a party where there were drugs and she decided to leave to get out of the situation. She thought that this had been a good decision. Then she said "Yeah, I frigged up, but what was I supposed to do, stay where there's drugs?"

[108] She continued to worry about her dog and its whereabouts. Then she explained that she had been under stress from school and that she was using sleeping pills but had not taken any that night.

[109] Ms. Esson told the officers that she had never been in this type of situation before and Officer Crowhurst already knew that she did not have a criminal record.

[110] Officer Crowhurst asked her about a lawyer and Ms. Esson told her that she did not have her own personal lawyer and that her father did not have one as far as she knew. She made a verbatim note that Ms. Esson told her "I, I don't have a lawyer."

[111] At 12:26 AM Officer Crowhurst called duty counsel. Ms. Esson did not express any interest in speaking to duty counsel but the officer "wanted to make sure that her right to a lawyer was granted to her and I don't, I didn't feel like she was solid in saying that she, she didn't want one. I know she had said no when she was being arrested and she was sort of being sarcastic and, in her response but I wanted to make sure that, that she was covered, basically."

[112] Ms. Esson spoke to duty counsel when they called back at 12:38 AM. At 12:43 AM she came out of the room and told the police that the call ended prior to her completing her conversation with duty counsel. Something happened with the phone line, or someone hung up. Consequently, she had not been able to complete her conversation with duty counsel.

[113] Officer Crowhurst did not know what happened with the call. She called duty counsel for her again at 12:46 AM because Ms. Esson "didn't seem satisfied with her first conversation and stated that it had finished before she had finished her, her conversation, so I wanted to make sure that she, she got everything she wanted out of it." Ms. Esson was not happy that the conversation ended prematurely. Officer Crowhurst said that she had an independent recollection that Ms. Esson was "anxious to speak to duty counsel again". This was not in her notes; she agrees that after the first call to duty counsel she does not have a note of any interest on the part of Ms. Esson that would have motivated her to call duty counsel a second time.

[114] Duty counsel called back at 1:20 AM, but before duty counsel called back Ms. Esson told Officer Crowhurst that she was not doing the tests because "I've already done them. I want my lawyer here now."

[115] Officer Crowhurst interpreted this to mean that Ms. Esson thought that duty counsel would come to the detachment. This was not in her notes but she said "that was conversation over duty counsel and although it's not in my notes, she thought that duty counsel would come to the detachment." She said that there was "some conversation" that she is now recalling that Ms. Esson wanted duty counsel to physically come to the detachment. She did not know why she did not put this in her notes, simply saying that "there was a lot of conversation over the time that we were together. Some things were, were noted and some things weren't."

[116] Defense counsel informed Officer Crowhurst that her partner, Officer McMillan, said that he made this second call to duty counsel. Officer Crowhurst said that she was going by her notes "on something that was a year ago." She said that if it had not been her that called duty counsel she did not know why she noted that duty counsel called again. I do not think that it matters which officer called duty counsel the second time.

[117] Ms. Esson told Officer Crowhurst that it probably was not a good idea to have left the party and driven after she had been drinking.

[118] At 1:20 AM Officer Crowhurst gave Officer Storey, the Intoxilyzer technician, the grounds for the arrest prior to the breath tests being administered.

[119] While Ms. Esson was in the cells Officer Crowhurst could hear her yelling about having to sit there. She was upset that she did not have any shoes but at the roadside when the officers tried to get her shoes for her she would not tell them where they were.

[120] Officer Crowhurst was of the opinion that Ms. Esson's ability to drive a motor vehicle was impaired by alcohol for the following reasons: she fumbled with the ASD mouthpieces, her demeanor and mood were mercurial in that "The tears would come on very quickly and then changed to, stop and then changed to sarcasm and demand, and she was very demanding, and then the tears would come on very quickly."

[121] In cross-examination, Officer Crowhurst agreed that she did not think that she had the grounds to arrest Ms. Esson for impaired driving at any time up to when Officer McMillan made the demand for breath samples into the ASD. However, she said that she should have "picked up on it" during "the course of the performance of the approved screening device tests."

[122] Defense counsel questioned Officer Crowhurst with regard to her opinion that Ms. Esson's emotional state was indicative of impairment. He suggested that her crying "could be just attributed to the distress of the situation."

[123] Officer Crowhurst replied that "The crying immediately switched off to demanding and aggressive, was more the signs of impairment to me, not just, not just crying… or not just been demanding… but the, the, the fluctuation in the switch between the two."

[124] She admitted that she had never met Ms. Esson before and does not know how she copes with stress and that her opinion is very subjective.

[125] Officer Crowhurst confirmed that it was she that set up the ASD, not Officer McMillan as he stated. She said that since he had been on the force for only four months on the day in question and she was his trainer and had more experience setting up ASDs it fell to her to set up the device.

[126] Defense counsel asked her what the sequence of steps were that she followed in setting up the machine in order to determine that it was in proper working order. She replied that she plugged the device into the power outlet in the police cruiser and then turned on the machine. The ASD then "runs into a very quick series of self-tests." She said that there are two lights on the machine. The first one that comes on is an orange ready light. An instruction appears on the display to wait and when the machine is ready for a sample a green light comes on. In addition, there is a short tone that indicates that the machine is ready to receive a breath sample.

[127] Regarding the self-test, Mr. Engle asked her, "And the self-test is only conducted once in terms of a session. There'd be no need if you'd [ sic ] had tested the machine to determine for yourself, there'd be no need for the other officer to conduct this test, because it fell to you to do it and you've done it and satisfied yourself that the machine was good?" She replied, "Yes."

[128] This appears to conflict with her evidence in-chief as noted above were she said that at 11:55 p.m. Officer McMillan tested the ASD by providing a suitable sample which resulted in a reading of. 000. These two statements could be reconciled if Officer Crowhurst thought that the "self-test" to which Mr. Engle was referring meant the turning on of the machine and letting it go through its internal testing procedures and not the "self-test" that involved one of the officers providing a sample of breath into the machine. It is hard to tell.

[129] Regarding the calibration of the ASD, she stated that she did not say anything to Officer McMillan regarding the particulars of the calibration. She determined for herself that the machine was in proper working order and then gave it to him to administer the breath test.

[130] Concerning rights to counsel, she was present when Officer McMillan read Ms. Esson's rights to counsel to her. She was satisfied that Ms. Esson understood her right to counsel, which included the right to telephone any lawyer she wished.

[131] It did not occur to Officer Crowhurst that by saying that she wanted to call her "daddy" she meant that she wanted to call him to get the name of a lawyer. The officer did not record verbatim what Ms. Esson said about wanting to call her father, but had Ms. Esson told her that her father was a lawyer or could help her to get a lawyer it would have been very important to her (Officer Crowhurst). I surmise that she was implying that she would have made a note of it.

[132] Officer Crowhurst said that had she known that Ms. Esson's father could have helped her with the name of a lawyer then she would have let her call him. She has done this for other persons.

[133] At the police station she demanded approximately 6 times to be allowed to make her "one free phone call", presumably to her father.

[134] Mr. Engle suggested to Officer Crowhurst that her note "father does not have one known to her" suggested that he may have one, but she just did not know who the lawyer was. Officer Crowhurst said that such an interpretation was fine; however, she also testified that "At no point in her demands to call her father… did I have any indication or feeling that she was going to call him for information on a lawyer."

[135] With regard to the capability of videotaping arrested persons at the station, Officer Crowhurst said that at the old station there was no video recording protocol. The "audio-video equipment was touch and go… depending on the person coming in."

[136] Officer Brittany Walsh testified that she served Ms. Esson with a photocopy of the Certificate of a Technician and released her from the station on a Promise to Appear at approximately 7:45 AM. The Crown introduced the Certificate and the Court made it Exhibit 1 subject to argument.

[137] The next witness was the Intoxilyzer technician, Officer Storey. He was the only Intoxilyzer technician working on the night in question. He was in Orangeville when he received a call at 12:00 AM from Officer Crowhurst requesting him to go to the Bolton police station, which was at least 30 kilometers away, to administer Intoxilyzer breath tests for Ms. Esson. This was the closest station to where they were that had an Intoxilyzer. He immediately left for Bolton.

[138] On the way he saw a car that was swerving on the road. He suspected that it might be a drunk driver so he stopped the car and called for another police officer to attend to deal with the situation. Officer Trewartha arrived and administered an ASD breath test to the driver and Officer Storey left the scene and continued on his way to the Bolton detachment.

[139] He arrived at the Bolton station at approximately 12:43 AM and turned on the Intoxilyzer. He said that another person could have turned on the machine, but they would have to change the solution that it uses and this requires a qualified Intoxilyzer technician.

[140] The Intoxilyzer warmed up and did its pre-tests. This usually takes about 20 minutes, which would have made it about 1:03 AM when this step was completed.

[141] He changed the standard solution at 1:06 AM and verified that it was not expired.

[142] He did a calibration check at 1:07 AM to ensure that the alcohol solution was proper and that the Intoxilyzer was reading it correctly.

[143] He completed a diagnostic check at 1:09 AM and performed a self-breath test at 1:11 AM. He determined that the Intoxilyzer was "working properly and was able to receive a breath sample correctly."

[144] Officer Storey stated that the time that it takes to perform all of these steps varies according to the circumstances, for example, the temperature at which the alcohol solution is stored, because it must be brought up to a certain temperature before it can be used.

[145] The Intoxilyzer was ready to receive breath samples at 1:11 AM, but he did not receive the grounds sheet from Officer McMillan until 1:14 AM. The grounds sheet contained all of the details and background with regard to Ms. Esson's arrest. It is Exhibit 2. Upon receiving this he was prepared to receive Ms. Esson's breath samples.

[146] At 1:30 AM, Officer Storey took custody of Ms. Esson for the purpose of administering the breath tests. The breath test procedure was videotaped and the Crown played the video tape in court and introduced it as an Exhibit. Counsel agreed to deal with a voir dire regarding the voluntariness of Ms. Esson's statements on the video in a blended fashion along with the Charter Application and the trial proper. They agreed that there was no need to swear Officer Storey on the voir dire.

[147] Officer Storey was quite familiar with the Bolton detachment because he started his career there and worked there for his first year and a half. He stated that on the day in question the breath room was the only room that had videotaping capacity. In the hallway and the cell area there was video monitoring, but no recording.

[148] Officer Storey knew that Ms. Esson had spoken to two duty counsels prior to being turned over to him, but before he administered the first test he told her that if she wanted to speak to a lawyer at any time she should let him know. He testified that she never told him that she wanted to speak to a lawyer of her choice, but she asked to be able to call her boyfriend. However, she never said that she wanted to contact him or anyone else for the purpose of getting the name of a lawyer. Had she done that he would have taken the number from her and called for her to get the lawyer's contact information. He has done this before.

[149] Ms. Esson described one duty counsel as "cool" and the other as a "bitch" and a "biotch" and said that she was afraid of her. Ms. Esson laughingly called herself a "biotch" and she did not appear to be taking her situation very seriously. Although Ms. Esson called the female duty counsel these names, she did not express dissatisfaction with her advice.

[150] Officer Storey told Ms. Esson that any time she wanted to speak to a lawyer to tell one of the officers and she would get a lawyer.

[151] He cautioned her about her right to remain silent. She understood this, because she said at one point that "the lawyer probably doesn't want me to answer these questions…but I will answer the questions regarding the incident, but nothing further." Officer Storey said that in keeping with his impression that she understood her right to remain silent, at times she did not answer his questions.

[152] However, he did not give her the secondary caution that anything that she said could be used as evidence in her trial. His reason for this was that "She would have already been cautioned at the roadside regarding any of the information as there's a subsequent caution that we give."

[153] Officer Storey asked Ms. Esson if her first language was English and she replied "I think so, yeah. Jibber jabber." He said that she was laughing and giggling as well as crying hysterically.

[154] He completed Ms. Esson's first breath test at 1:39 AM. The reading was 237 milligrams of alcohol in 100 millilitres of blood.

[155] He completed the second sample at 2:22 AM. The reading was 213 milligrams of alcohol in 100 millilitres of blood.

[156] Officer Storey said that there was a gap of 33 minutes between the tests because he tested another person in between Ms. Esson's first and second tests. Thus, there was an additional 16 minute delay over the usual gap of 17 minutes between her two tests. His explanation for having done this was "to get them both within the two hour window…"

[157] The police arrested the other person at 12:29 AM; therefore, Officer Storey had until 2:29 AM to perform the first test. Defence counsel asked him where the urgency was to administer the first test to the other person. Officer Storey conceded that in these circumstances there was no urgency that required him to administer the other person's first breath test before he administered Ms. Esson's second breath test.

[158] He agreed that this caused a delay of 43 minutes between Ms. Esson's first breath test and her second one. He said that the delay between the first breath test and the second one is "Typically, it would be about 20 [minutes]. Yes. Minimum of 17 [minutes]." He calculated that the extra delay caused by his decision to administer the other person's first breath test in between Ms. Esson's first and second test was "25 minutes probably". In fact, one can see that it was between 23 and 26 minutes.

[159] Officer Storey testified that "I had the 17 minutes in between, so I opted to test the other male to ensure that he was done also as soon as practicable."

[160] Officer Storey completed the other person's first breath test at 1:54 AM. Mr. Engle asked him how soon after he finished the first breath test on the other person he could have administered the second test on Ms. Esson. Officer Storey said that he would have had to change the videotape and make sure that it was operating properly, and move the other person out of the breath room and bring Ms. Esson into the room. In addition, he would have had to do all of the pre-tests again. He estimated that the soonest that he could have been prepared to administer the second breath test to Ms. Esson would have been 10-15 minutes.

[161] This means that he could have administered the second breath test to Ms. Esson between 2:04 AM and 2:09 AM. Instead, he completed it at 2:22 AM – a delay of between 13 and 18 minutes. Officer Storey could not explain why he did not do this.

[162] With regard to Ms. Esson's demeanour, he stated that her emotional level was up and down, she had a very strong odour of an alcoholic beverage on her breath, red-rimmed, watery eyes and her speech was slurred. In addition, she was jumping around and moving around quite a bit during her second breath test. He said that in his experience this is typical behaviour in a person that has drunk a lot of alcohol. Ms. Esson also dropped the mouth piece, which he said is common with persons that are quite intoxicated because they lack of coordination.

[163] Based on all of this, Officer Storey formed the opinion that Ms. Esson was extremely intoxicated and that her ability to operate a motor vehicle was impaired by alcohol.

[164] In his Alcohol Influence Report he ticked off the boxes that say the effects of alcohol on Ms. Esson were "obvious" and "extreme" because he felt that she was in between the two. Despite her level of intoxication she was able to speak with him. She "wasn't laying on the floor passed out drunk." She was "towards the extreme part, but she was not incoherent at the time."

[165] He asked her "On a scale of 0 to 10, 0 being no effect and 10 being unable to drive, what effect did that alcohol have on your ability to drive today?" Ms. Esson responded that "…probably about a three or four, and then emotional-wise, like a six or seven. I was more emotional than I was drunk."

[166] With respect to the voluntariness of what she said, Officer Storey stated that no one threatened her to cause her to give a statement or promise her anything in exchange for a statement.

[167] Officer Storey testified that he prepared the Certificate of a Technician that is already an Exhibit. In addition, the Crown introduced through Officer Storey the calibration check, the videotape of the breath tests procedure, the diagnostic check, the self-test, and the certified printout produced by the Intoxilyzer after the analysis of Ms. Esson's breath samples. These were all made exhibits.

[168] That was the Crown's case. The Defence called Ms. Esson just on the Charter Application regarding a breach of her rights under s. 10(b) and just for the purpose of cross-examination by the Crown on her Affidavit (Exhibit 7) in support of her Application.

[169] Ms. Esson testified that she has worked in sales in the communications industry for seven years and that communicating with people is one of her strengths. She is also in school and doing well.

[170] Regarding the issue of counsel, she stated that when the police asked her at the roadside if she wanted to "call a lawyer now?" she told them that she did not, but that she wanted to call her father to get a lawyer. Her father is not a lawyer. She said that she needed to call her father to "get the information. I couldn't call the lawyer 'cause I didn't have his information to call him…"

[171] Mr. Poland, the Crown, suggested to her that she did not say that to the police. She replied that "I, throughout the night, I'm pretty sure it was communicated that I, that's the purpose of why I wanted to call my father." I note that she is only "pretty sure", not positive that this is what she told the police.

[172] The Crown referred her to what happened at the roadside and put to her that she did not say this then. Ms. Esson responded that "I didn't, I thought I was being pretty blank [ sic ], I thought that would come across as I want to call my dad for a lawyer,…" But she agreed that she did not "blatantly" say this. She was "really distraught" at the time.

[173] Mr. Poland asked her if she agreed that "on the [breath room] video, at no time do you ever mention that you have your own lawyer? Isn't that right?" She responded "I don't know, I think I said a line there that my lawyer probably wouldn't want me to say this."

[174] Mr. Poland put it to her again that she never mentioned that she had her own lawyer and she retorted "Maybe not on the video but that's the only recording you have of me the whole night." Then he told her that she "never, never, made a request on that video to speak to a lawyer. Isn't that right?" She replied, "Not blatantly." Mr. Poland persisted saying "Not at all. Right?" Ms. Esson reluctantly agreed saying "I guess not on the video. No."

[175] I found her testimony on this point to be quite vague and uncertain. For example, toward the end of the Crown's cross-examination he returned to this issue again putting to her that she never told the police that she wanted to call her father, her boyfriend or anyone else in order to get the name and or contact information for a lawyer. The following are her typical responses:

1. "It was talked about many a times throughout the night but not blatantly. I know I never said that, but they asked me if my dad was a lawyer and I said no, 'cause my dad is not a lawyer."

2. "I, I kept saying it throughout the night, so I can't remember exactly when it was said, but from the time I was in the back of the cop car, I wanted my lawyer."

3. "It was talked about, so I don't know exactly word for word what I said , but it was definitely along the lines of, that's the reason why I wanted to call my father."

4. "I'm pretty sure I did [communicate this to the police] throughout the night, yes."

[176] The Crown asked her whether or not "pretty sure" opened up the possibility that she may not have told this to the police. She replied "Well not word for word, as that, the, me and the female officer were talking about it and I said, I don't know the name of the lawyer…that's the reason why I wanted to call my father."

[177] When the Crown suggested to her that what she told the police was that she did not know the name of a lawyer, she answered that she said that she did not know the name of his lawyer. That is why she needed to call him. The Crown told her that she never told that to the police and she responded that "Along those lines, it wasn't word for word like that, no." Then she said that "I said I needed to call my dad to get the name of the lawyer." This is a clear contradiction of what she had just said. When the Crown alluded to this inconsistency and asked her whether that was now her evidence, she stated "Yeah. Pretty much. I'm not quotating [ sic ] myself, but along those lines, yes. I wanted to call my dad to get the name of his lawyer."

[178] She agreed that Officer Storey told her that if she wanted to speak to a lawyer at any time to tell him. But she said that she had said "throughout the night" that she wanted to speak to a lawyer in private and at the point of being in the breath room she "knew that it wasn't happening."

[179] During her cross-examination, she said that she did not want to talk to duty counsel so she did not know why she was in the privacy booth speaking with one. The Crown countered that she never told anyone that she did not want to speak to duty counsel. She replied that "I'm, I'm, I thought I was pretty clear that I didn't,…" But she agreed that she "didn't say it blatantly".

[180] She told Officer Storey after her first breath test that she wanted to call her boyfriend. This was in the context of her having to wait for the second breath test. Officer Storey told her that he was going to administer a breath test to another person and that she would have to wait until he finished before he could administer the second breath test to her. She wanted to have a cigarette. When Officer Storey told her that she could not because it would interfere with the testing procedure she said "You guys suck. Can I at least go see my dog or something? Can I make a phone call?" Officer Storey told her that she could not because she had already spoken to duty counsel. Then she said that said that she wanted to call her boyfriend. But she did not say that it was in order to get the name and/or contact information for a lawyer. However, in her cross-examination, she said that she wanted to call him because he had the name of a lawyer. She appears to be enhancing her evidence as she testified.

[181] Regarding the cautions that she does not have to say anything, but what she does say could be used as evidence, she said that she understood this when the police told her but "everything happened very quickly, so I kinda wish it was said to me again, early, like when I had time to gather my thoughts. But it was said to me once and so, yeah, I agreed to it at the time." She said that she told the police that she understood that she did not have to say anything or do the heel-to-toe test.

[182] She testified that the caution is not hard to understand, but at the roadside she did not understand it because she did not have proper counsel. She "was saying yes to everything, and I didn't talk to counsel so I wasn't advised that I probably shouldn't of answered these questions."

[183] But when the Crown pressed her about her understanding of the caution she testified that she understood "the question". She testified that she knew that it was her choice to talk to the police or not and she chose to talk to them. But right afterwards she said that she said that it was incorrect that she did not understand that she had the right to remain silent but chose to talk anyway.

[184] She said that she understood when the officer told her that it was her choice to talk to them or not but there was "more to the story than just understand the question." When Mr. Poland asked her "what's more to the story than understanding, 'It's your choice'?", She answered that "And I'm pretty sure I asked to talk to a lawyer again, throughout the whole night. It's unfair that that's only videotaping me 'cause I was in my cell saying, I want to speak to my lawyer repeatedly." She said that after the first breath test she returned to the cells and wanted to call "a" lawyer.

[185] Regarding her Affidavit, the Crown asked her whether when she composed the Affidavit she "wanted to be full and complete and accurate with the Judge who was going to read this, didn't you?" I found it curious and concerning regarding her credibility that her answer to this question was "I guess."

[186] Mr. Poland asked her to point out in her Affidavit where she says that she "continued to demand to speak to your lawyer, even after the time of the first breath sample, at the time when you were in the cells?" She replied that "Well, I, I, pretty much says it throughout the day, like the notes and stuff, so I didn't think I needed to make it quite clear,…" The Crown asked her to whose notes she was referring and she said "The notes of the officers and from what I'm saying."

[187] When Mr. Poland questioned her about this being in the officers' notes she said "Honestly, I, I probably should've put it in there. I've never been through this. I, sorry, I didn't put it but…" Finally, she agreed that it was not "blatantly" in the officers' notes. I find her evidence on this point confusing.

[188] Regarding lying to the police, Ms. Esson admitted that she lied to Officer Storey regarding how much she had to drink that night. This was on the breath room videotape and after she had spoken to two duty counsel. When Crown counsel brought this up to her, she said that she was not trying to lie, she just did not count every drink that she had. However, she agreed that she had drunk too much to be driving.

[189] Concerning her behaviour in the breath room, Ms. Esson said that she did not feel drunk, but she was very nervous. She said that her vacillating between crying and giggling was a result of her nervousness and that she handles it in various ways "So, sometimes yeah, I would cry and laugh."

[190] Mr. Poland put to her that her behaviour "was all over the map" and she agreed. He suggested that sometimes this is what happens when one drinks. She said "Not just drinking. I'm, I'm sometimes I'm unstable even whenever."

[191] She disagreed with the Crown that her jumping around in the breath room video was dancing. She said she was "trying to get my breath together. It's just my way of preparing myself to get my thoughts together and get enough breath to take the breathalyzer."

[192] This was all of the evidence.

Analysis

[193] I will first deal with the non-Charter issues.

Did the Crown prove beyond a reasonable doubt that Ms. Esson's ability to operate a motor vehicle was impaired by alcohol?

[194] Mr. Engle submits that the Crown did not prove beyond a reasonable doubt that Ms. Esson's ability to operate a motor vehicle was impaired by alcohol. He argues that Detective Brindley followed her for 5-10 kilometers but did not notice any untoward driving. Furthermore, Officer McMillan stated that he did not think that he had the grounds to arrest her for impaired driving. And Officer Crowhurst did not notice any signs of impairment when Ms. Esson performed the heel-to-toe sobriety test.

[195] Mr. Poland submits that there is ample evidence of impairment. Detective Brindley saw Ms. Esson run a couple of stop signs and she appeared to be lost. Officer McMillan said that he noticed her driving poorly. It was his inexperience that caused him to wrongly conclude that he did not have any grounds to arrest Ms. Esson for impaired driving.

[196] In addition, she fumbled with her driving documents when she was trying to produce them for Officer McMillan.

[197] Mr. Poland submits that Mr. Ms. Esson had the odour of an alcoholic beverage on her breath and she tried to conceal the odour of alcohol in her car by spraying perfume inside it. This shows a consciousness of guilt.

[198] Furthermore, she could not follow Officer Crowhurst's commands regarding how to perform the heel-to-toe sobriety test.

[199] Ms. Esson did not appreciate the seriousness of the situation. She was more worried about her hair and her dog than about the trouble that she was in.

[200] She dropped the mouth piece to the ASD. Her behaviour was consistently up and down.

[201] Officer Crowhurst testified that she thought that Ms. Esson's ability to drive a motor vehicle was impaired by alcohol. Ms. Esson stated on the breath room videotape that on a scale of 0 to 10, the effect of the alcohol that she drank on her ability to drive a motor vehicle was 3 or 4 out of 10. And she admitted that she should not have been driving considering the amount that she had drunk.

Disposition

[202] The evidence on this issue shows that Detective Brindley followed Ms. Esson and noticed that she did not come to a complete stop at a stop sign. She only tapped the brakes and went through the intersection at 20 to 40 KPH.

[203] She continued and failed to stop completely at a red light. The way that she was driving made him think that she was lost.

[204] At the next stop sign Ms. Esson came to a complete stop and waited for a few seconds before turning left. At that point, other officers who had been called to assist took over the investigation and pulled her over.

[205] Detective Brindley followed Ms. Esson for approximately 5-10 kilometers and did not notice anything about her driving other than what he described above.

[206] Officer McMillan testified that he and Officer Crowhurst were called to investigate a report of an impaired driver. They went to the area and saw Ms. Esson driving down King Street. She was weaving within her lane and crossed over the centre line one time. This is inconsistent with Detective Brindley who did not report any weaving or crossing over the centre line.

[207] Officer McMillan spoke to Ms. Esson who had a small dog on her lap in the driver's seat. This was the only unusual thing about her. She said that she was coming from a party, but could not remember where the party was.

[208] She told Officer McMillan that she had drunk a few beers, the last being "30 minutes ago".

[209] Officer McMillan asked her for her driving documents. She "rummaged" through her purse and the glove compartment. While she was doing this she sprayed into the air in the car what appeared to be perfume or some sort of scented spray from a bottle.

[210] She found the required documents and when she gave them to him with shaky hands. Officer McMillan detected the odour of an alcoholic beverage coming from her breath.

[211] Officer McMillan testified that at the roadside he was not satisfied that her ability to drive a motor vehicle was impaired by alcohol. He ascribed her poor driving to the dog obstructing her ability to drive in some way. And he chalked up her actions at the roadside to being afraid because she had just been pulled over by a police officer.

[212] However, after considering his interactions with her at the roadside, that she was more concerned with her dog and her hair, her resistance when he tried to take her out of the cruiser at the police station, his and other officers' interactions with her at the police station, the very strong odour of alcohol and the Intoxilyzer readings and all of the other circumstances, he concluded Ms. Esson's ability to drive a motor vehicle was impaired by the consumption of alcohol.

[213] Officer Crowhurst said that while she and Officer McMillan were following Ms. Esson she observed her to weave in her lane and at one point her left tires crossed the centerline. Her speed was "okay".

[214] Ms. Esson had some difficulty locating her driving documents and she fumbled a bit with some of the paperwork that was in her purse and "some of the items were dropping." It took Ms. Esson a little longer than normal to locate the documents.

[215] Officer Storey testified that Ms. Esson's emotional level was up and down, there was a very strong odour of an alcoholic beverage on her breath, she had red-rimmed, watery eyes and her speech was slurred.

[216] In addition, she was jumping around and moving around quite a bit during her second breath test. He said that in his experience this is typical behaviour in a person that has drunk a lot of alcohol. Ms. Esson also dropped the mouth piece, which he said is common with persons that are quite intoxicated because of they lack coordination.

[217] Based on all of this, Officer Storey formed the opinion that Ms. Esson was extremely intoxicated and that her ability to operate a motor vehicle was impaired by alcohol.

[218] In his Alcohol Influence Report he ticked off the boxes that say the effects of alcohol on Ms. Esson were "obvious" and "extreme" because he felt that she was in between the two. But despite of her level of intoxication she was able to speak with him. She "wasn't laying on the floor passed out drunk." She was "towards the extreme part, but she was not incoherent at the time."

[219] The evidence is clear that Ms. Esson's emotional state was quite volatile and mercurial on the night in question. The Defence argued that what is important is her demeanour at the time of driving, not 30 to 60 minutes later at the police station.

[220] I agree that one has to keep in mind that the closer a person's behaviour is to the time of driving the more useful and reliable it is as an indicium of impairment by alcohol of the person's ability to drive a motor vehicle. One reason for this is that in some circumstances a person's blood-alcohol level might increase or decrease after the initial contact with the police at the roadside.

[221] However, I do not think that one should in every case completely exclude an accused's demeanour at the police station as an indication of the influence of alcohol on their ability to drive a motor vehicle. It depends on the circumstances. In any case, Ms. Esson's inconstant behaviour started at the roadside and continued at the police station. It was not something new that happened once she got to the police station.

[222] Therefore, although I place more weight on her behaviour at the roadside as a factor in deciding whether her ability to drive a motor vehicle was impaired by alcohol, I think that it is appropriate in the case at bar to consider her behaviour at the police station as well, but to accord it less weight.

[223] I agree with the Crown that an important factor is Ms. Esson's statement to Officer Storey during the breath tests, which I find to have been given voluntarily for reasons that I explain below. She told him that on a scale of 0 to 10, the effect of the alcohol that she drank put her at "probably about a three or four". This is a clear admission that she considered that the alcohol that she drank that night affected her ability to drive her motor vehicle.

[224] Both Officer McMillan and Officer Crowhurst observed Ms. Esson weaving in her lane and cross over the centre line. Detective Brindley did not see this, and I grant that he followed her for a longer distance than did Officers McMillan and Crowhurst. However, this does not preclude the Court from accepting Officers McMillan and Crowhurst's evidence in this regard. Had it been just one of them that saw this, and in the absence of any explanation for the inconsistency with Detective Brindley's evidence, it may have been more difficult to accept beyond a reasonable doubt that Ms. Esson was weaving and crossed over the centre line once.

[225] I acknowledge that the number of witnesses that say a certain thing is not necessarily indicative of its accuracy, but the fact that two officers who were following her saw her do this adds weight to their evidence in the circumstances of this case. There is no evidence to assist the Court why Detective Brindley would not have seen this. However, there is evidence that once Officers McMillan and Crowhurst appeared on scene and took over the investigation Detective Brindley's involvement ended. Perhaps once this occurred he stopped paying close attention and he missed the weaving and crossing over the centre line. It is not impossible or beyond reason that officers McMillan and Crowhurst observed something about Ms. Esson's driving that Detective Brindley did not. All witnesses to an event do not necessarily see everything that happens.

[226] In the circumstances of this case I accept Officer MacMillan and Crowhurst's evidence with regard to this issue. But I do not think that accepting Officers MacMillan and Crowhurst's evidence requires me to reject Detective Brindley's evidence. I acknowledge that it is perfectly plausible and reasonable that he did not see Ms. Esson swerving and crossing the centre line. However, this does not mean that Officers MacMillan and Crowhurst did not see her do this. And in the circumstances of this case, neither Detective Brindley's evidence nor any other evidence raises a reasonable doubt in my mind that they saw her do this. Therefore, I find as a fact that the Crown proved beyond a reasonable doubt that Ms. Esson weaved in her lane and that she crossed over the centre line once while Officers MacMillan and Crowhurst were following her. This finding is supported by Ms. Esson's evidence that her ability to drive a motor vehicle was 3 or 4 on a scale of 0 to 10.

[227] R. v. Stellato, 12 O.R. (3d) 90 at 49, 95 (O.C.A.), held that "If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out."

[228] After considering all of the circumstances, the law and the submissions of counsel, I find that the Crown proved beyond a reasonable doubt that Ms. Esson's ability to drive a motor vehicle was impaired by alcohol and she is found guilty and a conviction is registered.

[229] In case I am in error in coming to this conclusion, I will consider the other issues.

Did the Crown prove beyond a reasonable doubt that the Qualified Intoxilyzer technician administered the first breath test within two hours?

[230] Section 258 (1) (c) (ii) of the Criminal Code requires that where a person gives breath samples pursuant to a demand made under subsection 254 (3) the first breath sample be taken not later than two hours after the time when the offence was alleged to have been committed.

[231] Counsel did not make submissions regarding the time that the offence was alleged to have been committed. The evidence in this regard is that Detective Brindley saw Ms. Esson driving at 11:43 p.m. This is the first evidence of her driving. Officers McMillan and Crowhurst pulled her over at 11:48 AM. She failed the ASD breath test at 11:58 p.m. Officer McMillan arrested her for 'Over 80' at 12:00 AM. Officer Storey completed Ms. Esson's first breath test at 1:39 AM.

Disposition

[232] Based on this evidence it is clear that even if one goes by the time that Detective Brindley first saw her driving, Officer Storey completed the first breath test within the two hour requirement.

Did the Crown prove beyond a reasonable doubt that the Qualified Intoxilyzer technician administered the breath tests as soon as practicable?

[233] Section 258 (1) (c) (ii) of the Criminal Code requires that each sample be taken "as soon as practicable after the time when the offence was alleged to have been committed".

[234] The phrase "as soon as practicable" does not mean as soon as possible. It means "nothing more than that the tests were taken within a reasonably prompt time under the circumstances." The "touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably" (R. v. Vanderbruggen, [2006] O.J. No. 1138 at para. 12).

[235] The Crown does not have to "provide a detailed explanation of what occurred during every minute that the accused is in custody" (Vanderbruggen, para. 13):

In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7.

[236] Whether the samples were taken as soon as practicable is an issue of fact for the trial judge. See R. v. Lightfoot (1980), 4 M.V.R. 238 (Ont. C.A.) and R. v. Renda, [2005] O.J. No. 1453 (C.A.), (Cited in Vanderbruggen, para. 14).

[237] The first aspect of this issue in the case at bar is the delay caused by Officer Storey attending to a suspected impaired driver on his way to the Bolton police detachment to administer breath tests to Ms. Esson.

[238] The evidence in this regard is that Detective Brindley saw Ms. Esson driving at 11:43 p.m. This is the first evidence of her driving.

[239] Officers McMillan and Crowhurst pulled her over at 11:48 AM

[240] She failed the ASD breath test at 11:58 p.m.

[241] Officer McMillan arrested her for 'Over 80' at 12:00 AM.

[242] Officers McMillan and Crowhurst arrived at the police station with Ms. Esson at 12:14 AM.

[243] Officer Storey received a call at 12:00 AM from Officer Crowhurst requesting that he to go to the Bolton police station to administer Intoxilyzer breath tests for Ms. Esson. This was the closest station to where they were that had an Intoxilyzer. He immediately left for Bolton.

[244] On his way he stopped to attend to a suspected impaired driver. The evidence is not clear how much of a delay this entailed. Defence counsel cross-examined him on this point and asked him "Okay, fair enough. So, that, that accounts for the time it took, took for you to get to the station?" Officer Storey stated "Yes, 'cause there's about 4, 40 minutes to get there, so…"

[245] There is no other evidence in this regard. Therefore, I cannot determine the amount of delay this caused. Officer Storey testified that he had to travel at least 30 kilometers to get to the Bolton detachment. He arrived there at approximately 12:43 AM.

[246] This does not seem to be an inordinate amount of time to cover 30 kilometers and attend to a suspected impaired driver. I find that it was reasonable for Officer Storey to deal with the suspected impaired driver on his way to the Bolton detachment. The alternative would have been to try to call another police officer to deal with him and leave the suspect on the road, which would have clearly endangered the public. This would be unacceptable. The evidence shows that he attended to this problem in an efficient manner and I find that any delay that resulted from this is reasonable.

[247] The second aspect of the as soon as practicable issue is delay caused by the police calling duty counsel for Ms. Esson. The evidence in this regard is the following.

[248] When Officer Storey arrived at the Bolton station he turned on the Intoxilyzer. He said that another person could have turned on the machine, but they would have to change the solution that it uses and this requires a qualified Intoxilyzer technician.

[249] The Intoxilyzer warmed up and did its pre-tests. This usually takes about 20 minutes, which would have made it about 1:03 AM when this step was completed.

[250] In addition, Officer Storey changed the standard solution at 1:06 AM and verified that it was not expired.

[251] He did a calibration check at 1:07 AM to ensure that the alcohol solution was proper and that the Intoxilyzer was reading it correctly.

[252] He completed a diagnostic check at 1:09 AM and performed a self-breath test at 1:11 AM. He determined that the Intoxilyzer was "working properly and was able to receive a breath sample correctly."

[253] Officer Storey stated that the time that it takes to perform all of these steps varies according to the circumstances, for example, the temperature at which the alcohol solution is stored, because it must be brought up to a certain temperature before it can be used.

[254] He said that the Intoxilyzer was ready to receive breath samples at 1:11 AM, but he did not receive the grounds sheet from Officer McMillan until 1:14 AM. The grounds sheet contained all of the details and background with regard to Ms. Esson's arrest. It is Exhibit 2. Upon receiving this he was prepared to receive Ms. Esson's breath samples. Ms. Esson was waiting for the second duty counsel to call back.

[255] I note that Officer Crowhurst testified that she gave Officer Storey the grounds for the arrest at 1:20 AM prior to the breath tests being administered.

[256] I accept Officer Storey's evidence in this regard because his interest in noting accurately when all of the required steps are completed before he can administer the breath tests is greater than Officer Crowhurst's. He made specific notes in this regard.

[257] At 1:20 AM, duty counsel, Ms. Julie Peaker, called back. Ms. Esson spoke with her for seven minutes.

[258] At 1:28 AM Ms. Esson went to the washroom and came back out at 1:30 AM and Officer McMillan turned her over to the Intoxilyzer technician, Officer Storey.

[259] Based on this evidence, I calculate the delay occasioned by the police calling duty counsel to be 14 minutes. I arrived at this figure by subtracting 1:14 AM, when Officer Storey received the grounds sheet and was prepared to administer the tests, from 1:28 AM, when the call to duty counsel ended. The time taken up with calling duty counsel prior to when Officer Storey was ready to administer the breath tests is not relevant because it did not delay the taking of the breath samples.

[260] Defence counsel argued that the delay occasioned by the police calling duty counsel for Ms. Esson was unwarranted because she never told them that she wanted to speak to duty counsel.

[261] There is evidence that Ms. Esson did not request to speak to duty counsel, but I do not see anywhere that Ms. Esson told the police that she did not want to speak to duty counsel.

[262] The circumstances in which the police called duty counsel for Ms. Esson are that at 12:38 AM, Ms. Esson spoke to duty counsel for five minutes, until 12:43 AM. The officers differed or were not sure who called duty counsel for her. And they did not know why this call was terminated.

[263] At 12:46 AM, Ms. Esson told Officer McMillan that she was not going to give breath samples. She was of the view that she had already given samples and she wanted to speak to a lawyer.

[264] Although he could have explained the breath demand to her again, Officer McMillan elected to place another call to duty counsel for her because she said that she wanted to speak to a lawyer and he thought that she may have misunderstood "what her obligations were as a result of what was happening."

[265] Officer Crowhurst's evidence is that she asked Ms. Esson about a lawyer and Ms. Esson told her that she did not have her own personal lawyer and that her father did not have one as far as she knew. She made a verbatim note that Ms. Esson told her "I, I don't have a lawyer."

[266] Officer Crowhurst said that she called duty counsel at 12:26 AM. Ms. Esson did not express any interest in speaking to duty counsel but the officer "wanted to make sure that her right to a lawyer was granted to her and I don't, I didn't feel like she was solid in saying that she, she didn't want one. I know she had said no when she was being arrested and she was sort of being sarcastic and, in her response but I wanted to make sure that, that she was covered, basically."

[267] Duty counsel called back at 12:38 AM. Ms. Esson came out of the privacy room at 12:43 AM and told them that the call ended prior to her completing her conversation with duty counsel because something had happened with the phone line, or someone had hung up. Consequently, she had not been able to complete her conversation with duty counsel. Officer Crowhurst did not know what happened with the call.

[268] She called duty counsel for her again at 12:46 AM because Ms. Esson "didn't seem satisfied with her first conversation and stated that it had finished before she had finished her, her conversation, so I wanted to make sure that she, she got everything she wanted out of it." Ms. Esson was not happy that the conversation ended prematurely. Officer Crowhurst said that she had an independent recollection that Ms. Esson was "anxious to speak to duty counsel again". This was not in her notes; she agrees that after the first call to duty counsel she does not have a note of any interest on the part of Ms. Esson that would have motivated her to call duty counsel a second time.

[269] Before duty counsel called back at 1:20 AM, Officer Crowhurst had a short conversation with Ms. Esson in the interview room. Ms. Esson told her that she was not doing the tests because "I've already done them. I want my lawyer here now."

[270] Officer Crowhurst interpreted this to mean that Ms. Esson thought that duty counsel would come to the detachment. This was not in her notes but she said "that was conversation over duty counsel and although it's not in my notes, she thought that duty counsel would come to the detachment." She said that there was "some conversation" that she is now recalling that Ms. Esson wanted duty counsel to physically come to the detachment. She did not know why she did not put this in her notes, simply saying that "there was a lot of conversation over the time that we were together. Some things were, were noted and some things weren't."

[271] During her cross-examination, Ms. Esson said that she did not want to talk to duty counsel so she did not know why she was in the privacy booth speaking with one. The Crown countered that she never told anyone that she did not want to speak to duty counsel. She replied "I'm, I'm, I thought I was pretty clear that I didn't,…" But she agreed that she "didn't say it blatantly".

Disposition with regard to delay caused by the police calling duty counsel

[272] I find that in these circumstances the police acted reasonably in calling duty counsel for Ms. Esson. I also find that Ms. Esson's evidence that she did not want to speak to duty counsel is vague and uncertain. I cannot conclude from her evidence that she told the police that she did not want to speak to duty counsel.

[273] The Defence referred to the fact that Officers McMillan and Crowhurst were confused about who called duty counsel. I do not find that this is relevant with regard to the issue of whether there was an unreasonable delay caused by the police's actions in calling duty counsel for Ms. Esson.

[274] The third aspect of the as soon as practical argument is the delay caused by Officer Storey making Ms. Esson wait for her second breath test until he completed another person's first breath test. The evidence in this regard is the following.

[275] Officer Storey completed Ms. Esson's first breath test at 1:39 AM. The result was 237 milligrams of alcohol in 100 millilitres of blood.

[276] He completed her second sample at 2:22 AM. The result was 213 milligrams of alcohol in 100 millilitres of blood.

[277] There was a gap of 33 minutes between the tests because Officer Storey chose to test another person in between Ms. Esson's first and second tests. Thus, there was an additional 16 minute delay over the usual gap of 17 minutes between her two tests. His explanation for having done this was "to get them both within the two hour window…"

[278] The police arrested the other person at 12:29 AM; therefore, Officer Storey had until 2:29 AM to perform the first test. Officer Storey conceded that in these circumstances there was no urgency that required him to administer the other person's first breath test before he administered Ms. Esson's second breath test.

[279] He agreed that this caused a delay of 43 minutes between Ms. Esson's first breath test and her second one. He said that the delay between the first breath test and the second one is "Typically, it would be about 20 [minutes]. Yes. Minimum of 17 [minutes]."

[280] He calculated that the extra delay caused by his decision to administer the other person's first breath test in between Ms. Esson's first and second test was "25 minutes probably". In fact, one can see that it was between 23 and 26 minutes.

[281] Officer Storey testified that "I had the 17 minutes in between, so I opted to test the other male to ensure that he was done also as soon as practicable."

[282] Officer Storey completed the other person's first breath test at 1:54 AM. In order to be prepared to administer Ms. Esson's second breath test Officer Storey had to change the videotape and make sure that it was operating properly, and move the other person out of the breath room and bring Ms. Esson into the room. In addition, he had to do all of the pre-tests again. He estimated that the soonest that he could have been prepared to administer the second breath test to Ms. Esson would have been 10-15 minutes after he finished with the other person (2:04 AM – 2:09 AM).

[283] This means that he could have administered the second breath test to Ms. Esson at 2:09 AM at the latest. As seen above, he completed the second test on Ms. Esson at 2:22 AM. Officer Storey could not explain why he did not administer it at 2:09 AM.

Disposition with regard to the issue of as soon as practicable

[284] I find that in the circumstances described in the evidence the 23 and 26 minute delay caused by Officer Storey electing to interpose another person's first breath test in between Ms. Esson's first and second breath tests was an unreasonable delay and ran afoul of the requirement in s. 258 (1) (c) (ii) that each sample be taken "as soon as practicable after the time when the offence was alleged to have been committed".

[285] Therefore, the Crown cannot rely on the results of the breath tests to support the 'Over 80' charge. Ms. Esson is acquitted of this charge.

The voluntariness of Ms. Esson's statements to the Qualified Intoxilyzer technician recorded on the videotape in the breath room

[286] The last non-Charter issue is the voluntariness of Ms. Esson's statements to Officer Storey in the breath room.

[287] The evidence in this regard came out throughout the trial since the trial proceeded in a blended fashion. Consequently, it would be cumbersome and inefficient to try to summarize it in detail here since I already did that above. It is sufficient to say that I considered all of the evidence heard during the trial and I conclude that there was nothing that caused Ms. Esson's statements to Officer Storey to have been involuntarily given.

[288] She stated in paragraph 8 of her Affidavit that she was unaware of her right to silence when Officer Storey questioned her in the breath room and that she felt that she incriminated herself in the course of their discussions about the events of the evening.

[289] After considering all of the evidence I do not believe her. I accept Officer McMillan's evidence that he gave Ms. Esson the primary and secondary cautions. I also note that on page 10, lines 22 to 25, of the transcript of her discussions with Officer Storey in the breath room, he told her "So any interview or coordination tests, they're not part of the breath test procedure. The decision to answer any questions or perform any coordination tests is completely up to you. Do you understand that?" Ms. Esson replied "Yes."

[290] Proof of her comprehension of this caution appears at the bottom of page 11, lines 32, 33 and on page 12, lines 1 to 18 of the transcript. In these passages the following dialogue takes place:

Officer Storey: "Where did you start driving from prior to the, the incident?"

Ms. Esson: "I don't want to tell you this right now."

Officer Storey: "That's fine, you don't have to answer."

Ms. Esson: "Yeah."

Officer Storey: So anything you don't want to answer, just say no comment to, okay…"

Ms. Esson: "Yeah."

Officer Storey: "… for me."

Ms. Esson: "I guess I just don't feel comfortable answering that 'cause really, I'm just really upset and I just want to go home."

Officer Storey: "and so I'm just going to go through the questions, so any, the guy said…"

Ms. Esson: "Just put N/A for all of them, and I'll answer them later. Like I just want to go home right now.

[291] Later on in the interview on page 21, lines 13 to 17, Officer Storey asked Ms. Esson where she had been drinking. She told him that it was at a friend's house. He asked her for the address and she said "No, I'm don't want to be a rat."

[292] I find that in addition to the other evidence that touches on this issue the above excerpts show clearly that she understood her right to silence and that she exercised it when she wanted to.

[293] The defence made but brief submissions on this issue and did not argue the issue strenuously. Mr. Engle's argument that Ms. Esson's statements were involuntary relied on her distraught condition and the fact that she was a young woman in a very difficult and stressful situation.

Disposition

[294] After considering all of the evidence and all of the circumstances, I think that Mr. Engle exercised good judgment in not pursing this issue further because in these circumstances it is untenable to argue that Ms. Esson's statements were involuntary. I find that the Crown proved beyond a reasonable doubt that what she said to Officer Storey was said voluntarily. Accordingly, her statements to Officer Storey in the breath room are admitted as evidence.

[295] Next, in case I erred in my consideration of the non-Charter issues, I will consider the Charter issues.

Charter Issues

1. Did the police breach Ms. Esson's rights under s. 8 of the Charter because the arresting officer did not have reasonable and probable grounds to arrest her pursuant to s. 254 (3) of the Criminal Code?

2. Did the police breach Ms. Esson's right to counsel under s. 10(b) of the Charter?

3. If the police breached any of Ms. Esson's rights under the Charter, should the evidence of her breath tests be excluded under s. 24 (2) of the Charter?

Did the police breach Ms. Esson's rights under s. 8 of the Charter because the arresting officer did not have reasonable and probable grounds to arrest her for 'Over 80" and make a breath demand pursuant to s. 254 (3) of the Criminal Code?

[296] Section 254 (3) of the Criminal Code states that,

"If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offense under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

to provide, as soon as practicable,

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

[297] Section 258 (1) (c) (ii) of the Criminal Code provides that "where samples of the breath of the accused had been taken pursuant to a demand made under section 254 (3) " [and all of the conditions listed in s. 258 (1) (c) (ii) are satisfied], "evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both of the time when the analyses were made and at the time when the offense was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses,… [Evidence to the contrary is not an issue in the case at bar so I did not cite that part of this section].

[298] In R. v. Storrey (1990), 53 C.C.C. (3d) 316 (S.C.C.), at p. 324, Cory J. held:

It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest [citations omitted]. (Emphasis added)

[299] In R. v. Gundy 2008 ONCA 284, [2008] O.J. No. 1410 (C.A.), paragraph 43, the Court referred to this test and pointed out that:

… it is the reasonable and probable grounds that must be shown to exist. It may turn out that, in fact, the motorist's ability to drive was not impaired or that the motorist's blood alcohol level did not exceed the legal limit. The question is whether a reasonable person with the same information as the officer would have concluded that there were reasonable and probable grounds to believe an offence had been committed.

[300] Gundy dealt with the issue whether or not the roadside screening device that the arresting officer used was an "approved screening device". This is not the issue in the case at bar, however, I find that the Court's logic in determining the "approved screening device" issue helpful to me in determining the issue of whether the police in the case at bar were entitled to rely on the results of Ms. Esson's ASD breath test to form reasonable grounds to believe that she committed the offense of 'Over 80', and, therefore, were legally authorized to arrest her for this offense and make a breath demand on her.

[301] In Gundy at paragraph 43, the Court stated,

Thus, if the device used by the officer was not in fact an approved screening device, the objective component may or may not be made out; it depends upon whether the officer could reasonably believe that the device he or she was using was an approved device. (Emphasis added)

[302] And further, at paragraph 48, the Court stated that "…the question of whether the officer had reasonable and probable grounds depends on the circumstances of each case. My only point here is that the trial judge is not confined to direct evidence and is entitled to and should draw reasonable inferences from the proven facts. (Emphasis added)

[303] The Defense position in the case at bar is that the Crown did not prove that the officers were entitled to rely on the "fail" registered by Ms. Esson on the ASD because they could not have been sufficiently satisfied that the ASD was in proper working order.

Calibration of the ASD

[304] Officer McMillan stated that he checked the seal on the instrument to ensure that it was calibrated within the required standard of two weeks. Furthermore, he checked to see who calibrated it.

[305] Mr. Engle cross-examined both officers extensively on this issue. He questioned Officer McMillan with regard to his knowledge of the calibration of the instrument. The officer stated that he did not calibrate the instrument so he did not know specifically what the instrument's calibration was. However, he saw the badge number of the officer who calibrated the instrument and he testified that at the Bolton detachment only officers who are qualified calibrate these instruments. In addition, he testified that according to his training these instruments are calibrated to register a "fail" when a breath sample contains 100 mg of alcohol in 100 mL of blood.

[306] Officer Crowhurst testified that she also checked the calibration sticker on the device. She noted the date of the calibration and the badge number of the officer who calibrated it. She testified that the calibration date indicated that it had been calibrated by a qualified breath technician and that it was fit to be used on the road for tests. She added that the badge number "would be for an officer that is a qualified breath technician. Nobody else is allowed, or is, is trained or qualified to calibrate the ASDs."

[307] Officer McMillan also stated that he did a self-test on the device to ensure that it was working properly. The Defense asked him to explain what was supposed to be displayed on the machine's screen to indicate that it was working properly after a self-test. Officer McMillan testified that when a green light illuminates on the screen and a brief tone sounds it means that the device is ready and is in proper working order.

[308] He acknowledged that he did not know "what to expect in order to determine that the machine is working properly in terms of words or numbers". However, as long as he followed the training that he received, which he says he did, I do not find that this precludes him from determining that the machine is in proper working order and that it is communicating to him that it is ready to receive a breath sample.

[309] The Defense also questioned officer McMillan with regarding to the protocol after a person provides a deficient sample. Officer McMillan explained the process that he followed, which was in keeping with his training. He pressed the power button once, which cleared the error message and then waited until "the green ready light again activates and a tone is emitted."

[310] There was confusion in the evidence with regard to which officer prepared the ASD and perform the self-test, however, in the circumstances of this case I find that this does not have any effect on the issue of whether the police were entitled to rely on the results of the ASD's breath readings. The important thing is that one of them did it, which I find as a fact occurred.

Disposition

[311] Based on the evidence, the law, counsel's submissions and on all the circumstances, I am satisfied beyond a reasonable doubt that the ASD was in proper working order and that the officers were entitled to rely on the "fail" registered by Ms. Esson to form reasonable grounds that Ms. Esson had committed the offense of "Over 80". Consequently, I find that they were legally authorized to arrest her for this offense and demand that she give samples of her breath into an Intoxilyzer.

[312] Therefore, I am not persuaded on a balance of probabilities that the police breached Ms. Esson's rights under s. 8 of the Charter. Her application is dismissed.

Did the police breach Ms. Esson's right to counsel under s. 10(b) of the Charter?

[313] The Defense position with regard to this issue is that the police did not afford Ms. Esson her right to counsel of choice. There is no doubt that she has this right and that duty counsel cannot be used to trump her right to counsel of choice. The Court also agrees with the Defense that this right includes being able to contact a third person to obtain contact information for a lawyer. See R. v. Kumarasamy [2002] O.J. No. 303 as authority for both of these points. However, the circumstances of each case have to be examined closely to determine whether the police infringed this right.

[314] This was the most contested issue in this case and the Defense's cross-examined on this point was meticulous. Ms. Esson testified with regard to this issue and was in turn cross-examined by the Crown in an equally precise manner.

[315] It is not feasible to summarize all of this evidence in detail here because I have already done this above and it would add inordinately to an already very long judgment. It suffices to say that the Defense argument boils down to the contention that from the time that the police read Ms. Esson her right to counsel she consistently throughout the night was saying to them in an albeit indirect manner, that she wanted to contact her father and her boyfriend in order to obtain the name of a lawyer with whom she could exercise her right to counsel. Opposing this is the Crown's position that Ms. Esson never told the police directly or indirectly that the reason she wanted to call her father or her boyfriend was to get contact information about a lawyer.

[316] I have considered the evidence carefully. Mr. Engel most expertly tried every which way he could to maneuver the officers into conceding that they should have understood that what Ms. Esson really meant when she said that she wanted to call her father and her boyfriend was that she wanted to call them in order to obtain information about a lawyer with whom she could consult.

[317] The officers stood up well under Mr. Engel's exacting cross-examination. I find that they were genuinely concerned to make sure that they did everything possible to afford Ms. Esson her rights under s.10 (b) and that they behaved reasonably in all of the circumstances. Their evidence was reasonable, plausible and consistent. There were no fatal inconsistencies or contradictions within their testimony or compared with each other's evidence.

[318] The officers steadfastly asserted that Ms. Esson never told them that she wanted to call her father or boyfriend for the purpose of contacting a lawyer. They said that had she done this they would, as they have done in the past, helped her to contact her father or boyfriend for the purpose of obtaining information about a lawyer. I accept their evidence in this regard.

[319] Ms. Esson's testimony on this point was vague, uncertain and inconsistent. As she stated on many occasions she never communicated the message "blatantly" to the police that she wanted to contact her father or boyfriend for the purpose of contacting a lawyer. The most that she could say was that she was "pretty sure" that she told him this.

[320] As pointed out above, her typical response to the question of whether or not she told the police officers that she wanted to call her father or boyfriend for the purpose of getting contact information with regard to a lawyer were:

1. "It was talked about many a times throughout the night but not blatantly. I know I never said that, but they asked me if my dad was a lawyer and I said no, 'cause my dad is not a lawyer."

2. "I, I kept saying it throughout the night, so I can't remember exactly when it was said, but from the time I was in the back of the cop car, I wanted my lawyer."

3. "It was talked about, so I don't know exactly word for word what I said , but it was definitely along the lines of, that's the reason why I wanted to call my father."

4. "I'm pretty sure I did [communicate this to the police] throughout the night, yes."

[321] After considering all of the evidence and the circumstances I find that Ms. Esson's alleged message to the police that she wanted to call her father or boyfriend for the purpose of contacting a lawyer was not explicit nor can the police have been reasonably expected to find it "between the lines".

[322] To go further, after considering her evidence I find that I do not believe that she wanted to call her father or boyfriend for the purpose of getting information to contact a lawyer. As she told the Crown in cross-examination, she has worked in sales in the communications industry for seven years and that communicating with people is one of her strengths. Had she really wanted to call her father her boyfriend for the purpose of contacting a lawyer she could have and would have easily said this to the police. The evidence is replete with examples of her candor and verbal aggressiveness.

Failure to Videotape the Booking in Procedure

[323] The Defense argued that the police should have videotaped the booking-in procedure so that the court would have the benefit of being able to hear Ms. Esson's exact words with regard to her wish to contact her father. I agree that this would have been useful. However, in and of itself, it is not a determinative of this issue. Moreover, in light of my finding with regard to her credibility on the issue I do not think that in the case at bar it is germane.

Dissatisfaction with Duty Counsel

[324] The Defense submitted that when a detainee is not satisfied with the advice received from duty counsel that the police are to provide the person with a further opportunity to consult with counsel. Of course this is correct, but in the circumstances outlined above I find that the police conducted themselves in a reasonable manner with regard to ensuring that Ms. Esson received proper advice from duty counsel. For example, Officer McMillan stated that when after speaking with the first duty counsel Ms. Esson told him that she was not going to provide breath samples, he was concerned that perhaps she had not correctly understood duty counsel's advice, which prompted him to call duty counsel again.

Disposition

[325] For the above-mentioned reasons I'm not persuaded on a balance of probabilities that the police breached Ms. Esson's rights under s. 10 (b) of the Charter. Her application is dismissed.

Released: January 9, 2014

Justice J.W. Bovard