Court Information

Ontario Court of Justice

Date: April 2, 2015

Court File: Sudbury

Parties

Between:

Her Majesty the Queen

— And —

Mary Lee Vanpoorten

Judicial Officer and Counsel

Before: Justice A.L. Guay

Heard on: September 29, 2014, January 19 and 27, 2015, and March 13, 2015

Reasons for Judgment released on: April 2, 2015

Counsel:

• L. Kim, counsel for the Crown
• T. Conroy, counsel for the defendant Mary Lee Vanpoorten

Reasons for Judgment

Introduction

[1] The accused, Mary Lee Vanpoorten, was charged with having care and control of a motor vehicle on September 7, 2013, while she had a blood alcohol content exceeding that permitted under section 253(1)(b) of the Criminal Code of Canada. To this charge, she pleaded not guilty. She asked this court to find that her Charter rights under sections 7, 8 and 9 of the Canadian Charter of Rights and Freedoms had been violated and that evidence of her blood alcohol content be excluded pursuant to subsection 24(2) of the Charter. Whether these allegations have any merit depends on whether the investigating police service, the Ontario Provincial Police, and the Greater Sudbury Police Service's breath technician, Constable Jacques Roberge, complied with the requirements of the Charter and the requirements set out in sections 253, 254 and 258 of the Criminal Code. The accused asked that this court reserve its ruling on her Charter motion until the conclusion of the trial preferring, with the consent of the Crown, to roll the evidence on the Charter application into the trial evidence.

Applicable Sections of the Code

[2] In the course of the investigation by the Ontario Provincial Police, the accused was initially asked to provide a breath sample into a roadside screening device pursuant to subsection 254(2) of the Code. This subsection permits a demand for a breath sample into an approved screening device if "…a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in his or her body and that the person has, within the preceding three hours, operated a motor vehicle or vessel,… or had the care or control of a motor vehicle,…, whether it was in motion or not." The subsection also permits a peace officer to ask the accused to accompany him or her for that purpose if necessary. In this respect, the Crown argued that the investigating police officers had a reasonable suspicion that the accused had had the care and control of a motor vehicle within the previous three hours with alcohol in her body. The accused argued that if she did, it was not in an amount sufficient to establish an offense under subsection 253(1)(b) of the Code and, further, that the presence of a small amount of alcohol in her body ought not to have triggered the demand for a sample into a roadside screening device.

[3] Subsection 254(3) provides that if after considering the information available to him or her, including the results of a roadside screening device test, an investigating police officer concludes that he or she has reasonable grounds to believe that the person involved "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 officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, 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…". Again, the Crown takes the position that the investigating police officers had reasonable and probable grounds to believe that the accused had committed a section 253 offense, whereas the accused argued that the investigating police officers did not have such reasonable and probable grounds.

[4] Under section 258 of the Code, there is a rebuttable presumption that a person will be deemed to have care and control of a motor vehicle if he or she occupied the driver's seat. Somewhat vaguely, the accused seems to have argued that she did not have care and control of her motor vehicle when first noticed, in succession, by two of her neighbors, or at least not since she stopped driving her vehicle at about 9:20 p.m. on the evening of September 7, 2013. It is the Crown's contention that the accused did have care and control of her vehicle at all times between 9:00 p.m. and 10:10 p.m. on the evening of September 7, when she was last noted in the driver's seat of her vehicle by Eddie Brush, a paramedic, who happened upon the scene at that time.

[5] Under subparagraph 258(1)(c) of the Code, the two breath samples required under sub-paragraph 254(3)(i) of the Code, must be taken "as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least 15 minutes between the times when the samples were taken". The evidence indicated that the accused's first sample was obtained at 1:05 a.m. on the morning of September 8, 2014, and that the second sample was taken only at 1:54 a.m., this being far more than the required time lapse of 15 minutes. Believing that the first sample was taken more than two hours after the accused was believed to have been in care and control of her vehicle, the Crown called in evidence a toxicologist from the Northern Center of Forensic Sciences. This evidence was deemed necessary by the Crown in light of the fact that the disparity in the test results between the first sample and the second was sufficiently large to put into question the reliability of the two readings.

The Evidence of the Crown

Carole McMillan

[6] Carole McMillan is a neighbor of the accused and resides on the same road (Hemlock Pointe Road) as the accused. She testified that she arrived at the scene of the accident near the intersection of Hemlock Point Road and Eden Township Road at about 9:30 on the evening of September 7, 2013. Carole McMillan told the court that while she noticed a woman pass in front of her stranded vehicle, the headlights of which were on, she did not stop to give assistance because she was afraid to do so. The identity of the woman she and Eddie Brush, another witness, saw was not in dispute at the trial. Carole McMillan related how she had continued past the woman and her stranded vehicle, choosing instead to notify nearby neighbours, the Brush's, about what she had seen. At the trial, Carole McMillan provided a sketch of the location of the accused's vehicle in relation to the intersection of Eden Township Road and Hemlock Pointe Road. Essentially, her sketch (see Exhibit 7) indicated that the accused's vehicle, later identified as a 2008 Volkswagen belonging to her husband, was located parallel to Hemlock Pointe Road and facing directly onto Eden Township Road. Hemlock Pointe Road, it should be noted, intersects with Eden Township Road in a perpendicular fashion.

Eddie Brush

[7] The Crown's second witness, Eddie Brush, testified that he came upon the scene of the accused's stranded vehicle at around 10:10 p.m. on the evening of September 7, 2013. He testified that he saw the accused sitting in the driver's seat of her vehicle but in a sideways fashion with her legs and feet outside the vehicle. While he could not recall if the vehicle's headlights were on, he noted that the vehicle's interior lights were on. Like Carole McMillan, he recalled that the front of the accused's vehicle was facing Eden Township Road and in a sketch prepared by him, he placed the vehicle in a similar position to that described by Carole McMillan. Eddie Brush, a paramedic by occupation, related his concern at the time for the plight of this stranded woman when he decided to stop and see if he could assist her.

[8] I was impressed with the clarity of this witness' evidence. He testified how he came to realize that the accused was, in his view, intoxicated and confused. She asked him to bring her to 51 Hemlock Pointe Road and not, as it turned out, to her address at 47 Hemlock Pointe Road. He recalled how she had fumbled for her keys after he dropped her off at 51 Hemlock Pointe Road. Initially, the accused told him that her husband would be home and that he would be upset with her. Once at the appointed address, however, he noticed no sign of life in the cottage building located there and no car in the driveway. Eddie Brush commented on the accused's slurred speech and unsteady gait, noting that he had had to help her up from the shallow ditch in which her vehicle was located. He concluded by telling the court that after bringing her to the address indicated by the accused, he had gone to his home nearby and called 911. This, he stated, he did at about 10:25 p.m. The evidence of the investigating officers would indicate that Eddie returned to the scene of the accident at some time around 11:20 p.m. later that evening in order to provide them with his information about the accused's residence and what he had observed.

[9] The accused's vehicle had remained stranded off Eden Township Road. Once off the roadway, it had been driven by the accused to the spot in the adjoining flat ditch where it was later found by the police who attended at the scene. The evidence clearly suggests that it had been driven by the accused in a manner sufficient to cause serious damage to its undercarriage. This conclusion is deduced from the testimony of the investigating officers and John Vanpoorten, the accused's husband, during the course of the trial.

Constables Nicklasson, Ferro and Roberge

[10] Constable Nicole Nicklasson arrived at the scene of the single vehicle accident at approximately 11:15 p.m., shortly after her colleague, Constable Eddie Ferro. Both officers attended at the scene in response to a dispatcher who had received Eddie Bush's 911 call at about 10:25 p.m. According to the officers, the 911 caller, Eddie Bush, returned to the scene of the accident about five minutes after Constable Nicklasson arrived there. He shared with them his information about the incident, including how to help locate its driver. By this time, the vehicle's lights were off, its doors, however, remaining unlocked. A brief search of the vehicle's glove compartment by Constable Nicklasson suggested that the vehicle was owned by John Vanpoorten, who appeared to reside at 47 Hemlock Pointe Road.

[11] The officers proceeded to 47 Hemlock Pointe Road and, after a brief discussion there with John Vanpoorten, the accused's husband, they met and spoke with the accused. This was at approximately 11:33 p.m. The accused admitted to Constable Ferro that she had consumed some alcohol earlier that evening. Constable Nicklasson stated that she detected a strong odour of alcohol emanating from the accused's person and found her eyes to be red and glassy and her balance unsteady. Constable Nicklasson noted that the accused had difficulty retrieving her license from her wallet. The accused told the officers that she had "simply missed my turn" and that this was why she had come off Eden Township Road and onto the adjoining ditch area.

[12] At approximately 11:41 p.m., and on the basis of what she herself had observed and what she had been told by Eddie Brush and the accused, Constable Nicklasson formed a reasonable suspicion that the accused had been drinking and either driving the stranded vehicle or had had the care and control of it within the previous three hours. As a result, she demanded the accused to provide a breath sample into a roadside screening device. At 11:49 p.m., after a number of attempts to obtain a breath sample from the accused, a sufficient sample was finally provided by her. The roadside screening device registered a "Fail". At this point, and on the basis of the earlier information provided to her and the results of the roadside screening device test, Constable Nicklasson concluded that she had reasonable and probable grounds to charge the accused with an offence under section 253(1)(b) of the Code and did so. At 11:52 p.m. and 11:53 p.m., Constable Nicklasson provided the accused with her rights and gave her the required cautions.

[13] Constable Nicklasson told the court that the accused had not accompanied her quietly to her cruiser for the purpose of providing a breath sample into the roadside screening device. She testified that she had at one point had to threaten to charge the accused with resisting arrest. When, after arresting her, Constable Nicklasson tried to place a handcuff on the accused's other uncuffed wrist, the accused pulled away from her, telling her: "No! Fuck off!" Between the request to accompany Constable Nicklasson to her vehicle and the time the accused finally agreed to get into the vehicle, approximately 8 minutes elapsed.

[14] Constable Nicklasson and the accused arrived at the Greater Sudbury Police Services headquarters in Sudbury at approximately 12:30 a.m. on September 8, 2013. After being booked in, and specifically at 12:38 a.m., the accused was given an opportunity to consult with a lawyer. This she did between 12:38 a.m. and 12:45 a.m. It was at this point that the accused was turned over to Constable Roberge, a breath technician with the Greater Sudbury Police Service. An O.P.P. breath technician was not available, so this is why the accused had had to be transported to Sudbury for the purpose of conducting the breath analysis. The accused was eventually returned into Constable Nicklasson's custody at about 2:15 a.m., following multiple attempts on Constable Roberge's part to obtain samples of her breath for analysis.

Constable Eddie Ferro

[15] Constable Ferro attended at the scene of the accident shortly before Constable Nicklasson arrived. He inspected the area surrounding the stranded Volkswagen vehicle, noting the presence of five tire ruts in the area adjoining Eden Township Road. His view as well as that of Constable Nicklasson and the witness, Eddie Brush, was that the vehicle driven by the accused could easily have been driven from the area where it had come off Eden Township Road onto the adjoining Hemlock Pointe Road had the driver simply oriented the vehicle to her right. These witnesses shared this opinion because, from their observation, the slope adjoining Hemlock Pointe Road was gradual and not as steep as the slope adjoining Eden Township Road. While the accused's husband, John Vanpoorten, suggested in his testimony that this was not so, I accept the evidence of the police officers and Eddie Brush that if the person driving the stranded vehicle had wanted and been able to do so, she could have driven the vehicle onto Hemlock Pointe Road without much difficulty. While I accept John Vanpoorten's evidence which indicated that the vehicle driven by his wife had become stuck before he attended at the scene to attempt to drive it out, the evidence establishes that once the vehicle left Eden Township Road and went over the edge of that road on its passenger side, the logical thing to have done would have been to continue driving it in a straight direction until it was able to embark onto Hemlock Pointe Road. I find that the position of the stranded vehicle with its headlights facing Eden Township Road, the ruts adjoining that road and the serious damage to the undercarriage of the vehicle suggest that the accused had opted to try to regain access to Eden Township Road because she was not aware of the readily apparent option suggested by the officers and Eddie Brush. I also conclude from the evidence that once the accused's vehicle left Eden Township Road, the accused had had to drive it around the flattened ditch area in which it had come to rest for the vehicle to be found facing Eden Township Road. It was found in this position by those who either saw it there that night or who attended at the scene to investigate what had happened.

Constable Jacques Roberge

[16] Constable Roberge, the G.S.P.S. breath technician, testified that he was ready to proceed with an analysis of the accused's breath at approximately 00:14 hours on September 8, 2013, having previously done what was required to prepare the 8000C Intoxilyzer for the required testing. The testing, according to Constable Roberge, began at 00:57 hours and at 01:05 a.m., the first breath sample provided a reading of 170 mg of alcohol in 100ml of blood. If one accepts paramedic Eddie Brush's evidence about the time he noticed the accused seated in the front seat of her vehicle (ie. 10:10 p.m.) which I do, this test was taken within the requisite time period of two hours. A problem arose, however, with the second of the two required tests. After 12 attempts to obtain an adequate breath sample for analysis from the accused, a second test was completed at 1:54 a.m., some 49 minutes after the first test. Resulting in a reading of 138 mg in 100 mL of blood, the result mandated that a further test be performed. Analyses of the accused's breath samples were finally obtained, with the tests completed at 1:54 a.m. and 2:15 a.m., providing readings of 138 mg and 139 mg of alcohol in 100 mL of blood respectively. These readings were truncated by the breath technician to readings of 130 mg in 100 mL of blood.

[17] Why did this problem occur with the testing by Constable Roberge? There were a number of reasons, the most obvious of which was, I find, the accused's unwillingness to provide a sample as directed by the breath technician. The evidence indicates that the accused spent one hour and 35 minutes in the breath analysis room. The accused offered no reason or explanation as to why she was unable to provide a second adequate sample sufficient for analysis within a reasonable time of being required to do so by Constable Roberge. The officer, it should be noted, did everything reasonable to facilitate obtaining a second sample of breath from the accused in a timely manner. He, in fact, permitted the accused to leave the breath analysis room for a period between 1:09 a.m. and 1:13 a.m. to permit her to further consult her lawyer who had called her back to speak with him again. Some of the difficulty in obtaining the second sample could therefore be ascribed to a desire on the part of the officer involved to be considerate to the accused to the detriment of the testing protocol. The evidence clearly indicates that the accused could have been charged with failing to provide a second sample of her breath for analysis when she was fully capable of doing so. Recall that Constable Roberge testified that the accused appeared lively and entertaining throughout the time she spent with her in the breath analysis room. A review of the CD filed with respect to proceedings in the breath analysis room (see Exhibit 1) confirms that the accused appeared lucid and awake during this period. In my respectful view, it can be reasonably inferred from the evidence that the accused deliberately caused the time required to carry out the breath analysis in a manner sufficient to provide reliable evidence of impairment to lapse. The accused is an intelligent woman and, I believe, attempted to manipulate the situation to her advantage in the early morning hours of April 8, 2013.

Evidence of James Rajotte, M.Sc.

[18] Anxious about its evidence with respect to the accused's state of intoxication at the time of testing during the early morning hours of September 8, 2013, the Crown called in evidence James Rajotte, a forensic toxicologist with the Center of Forensic Sciences, Northern Regional Laboratory, in Sault Ste. Marie, Ontario. Explaining how he had proceeded in formulating his opinion and with what information he had been provided, this witness gave it as his expert opinion that the accused had a projected blood alcohol concentration (BAC) "at or between approximately 9:00 p.m. and 10:15 p.m. and" (during a part of which time she acknowledged being the driver of a motor vehicle and had the care and control of it), of between "145 to 225 mg of alcohol in 100 mL of blood(mg/mL)", opining that "this projected range is independent of the gender, height, weight and age of the individual, but dependent on a number of factors. These, James Rajotte explained, included an alcohol elimination rate of 10 to 20 mg of alcohol in 100 mL of blood per hour, allowance for a plateau after two hours, no consumption of large quantities of alcohol within 15 minutes prior to the time of the incident and no consumption of alcohol both after the incident and before the breath tests." (see page 1 of the Toxicology Report dated October 3, 2013, filed as Exhibit 6).

[19] Of note, at page 3 of his report, the toxicologist commented on the Intoxilyzer 8000C message "No 020 Agreement" printed on the test record at approximately 1:54 a.m., the time of the second successful test. This message, he stated, indicated that "the instrument comparison of truncated values of the two prior breath tests results determined that these results were not within a plus/minus 20mg/100mL of one another". Such a reading indicated to the breath technician that further breath testing was required but did "not affect the accuracy or reliability of the BAC's determined at approximately 1:05 a.m., 1:54 a.m. and 2:15 a.m.

Defence Evidence

Evidence of John Vanpoorten

[20] The defence called only one witness, John Vanpoorten, the accused's spouse. It is not clear from the evidence when John Vanpoorten was alerted to his spouse's predicament. His evidence makes clear, however, that he arrived at the scene of the accident prior to the police and prior at least to Eddie Brush who had noticed the accused in the stranded vehicle at 10:10 p.m. on September 7, 2013. When he did attend at the scene, John Vanpoorten brought a shovel in order to try and dig the vehicle out of the ditch into which she had driven it. He was unable to do so. He testified that the vehicle had incurred damages of approximately $4000.

[21] It is not unreasonable to conclude that the damage to the vehicle most likely occurred when his spouse attempted to drive the vehicle back onto Eden Township Road, the slope between the road and the flat ditch where the vehicle had come to rest being, according to the evidence, about 2 feet or so in height. The ruts observed by the investigating police officers, including their estimation of the distance between the surface of Eden Township Road and the flat ditch adjoining it, strongly suggests that this is how the damage to the vehicle's undercarriage occurred. No evidence was introduced to establish or suggest that the damages to the vehicle had occurred at an earlier time and place. Certainly, John Vanpoorten's evidence indicated that the vehicle had been damaged on the occasion of the accident being investigated.

[22] While John Vanpoorten produced a photograph (see Exhibit 9) supporting his contention that the vehicle could not have been easily driven from the ditch onto Hemlock Pointe Road, no evidence was offered by him about who took the photograph and when the photograph was taken. As a result, it did not have much evidentiary value. While not expert evidence in the usual sense of the word, I find that the evidence of the investigating police officers with respect to the condition and height of the shoulders adjoining the two roads in question is preferable to that of John Vanpoorten. I therefore accept the evidence of the investigating police officers to that of John Vanpoorten on this point, falling as it does within the scope of their professional experience.

[23] John Vanpoorten was questioned about the drivability of the vehicle driven by his wife. He initially testified that it was not drivable and that it was stuck in a sandy area 20-30 feet from the edge of Eden Township Road. In this location, he testified, brush had recently been cleared to afford a better view of Eden Township Road to those proceeding to its junction with Hemlock Pointe Road. Under cross-examination, he was unable to say whether or not the vehicle was in a drivable condition at the place at where it was found. My assessment of the evidence on this matter is that while the vehicle may have been drivable, it had been driven by the accused to an area off Eden Township Road where it would have been difficult to cause it to move. This is not to say that it could not at a point earlier than this have been driven onto Hemlock Pointe Road. Given the vehicle's final position and the direction in which it first left Eden Township Road, it is clear that the accused had driven the vehicle around in the ditch in order to bring it into the position facing Eden Township Road where it ended up.

The Alleged Charter Breaches

[24] As indicated earlier, the question of whether the accused, Mary Lee Vanpoorten's sections 7, 8 and 9 Charter rights had been breached could be answered only after a review and assessment of the evidence. While the accused initially alleged that her section 12 Charter rights had been violated, she abandoned this allegation.

Section 7 of the Charter

[25] Section 7 of the Charter guarantees to Canadians the right to life, liberty and security of the person as well as the right "not to be deprived thereof except in accordance with the principles of fundamental justice". The evidence indicated that Ontario Provincial Police Constable Nicklasson was entitled to bring the accused to her cruiser for the purpose of carrying out a roadside screening test. Having spoken to the accused and observed her and having also spoken with her colleague, Constable Ferro, and the witness, Eddie Brush, she was definitely able and did form a reasonable suspicion that the accused had had care and control of a motor vehicle with alcohol in her blood within the three hours prior to being asked to provide a breath sample into a roadside screening device. Having carried out the roadside screening and obtained the "Fail" result and with the information she had received from those persons she interviewed, she was then entitled and did have reasonable and probable grounds to make a breath demand on the accused and ask her to accompany her to the nearest police detachment where a breath technician was available to carry out an analysis of her blood-alcohol level. Once there, the breath technician, Greater Sudbury Police Constable Jacques Roberge, having been informed by Constable Nicklasson of her grounds for making a breath demand, had the right to ask her to provide breath samples for analysis into his 8000C Intoxilyzer.

[26] The accused was only finally released from O.P.P. custody at about 3:30 a.m. on the morning of September 8, 2013. She had been in police custody since midnight earlier that day. While at first glance this might seem to have been an overly long period of detention emanating from a charge of driving under the influence of alcohol, the timing of the events in this case and the fact that no O.P.P. breath technician was available in the geographical area proximate to the accident being investigated necessitated the involvement of a second police service (that of the Greater Sudbury Police) for breath analysis purposes. The lack of compatible computer technology between the two police services resulted in the need for the arresting police officer to await the preparation of the Greater Sudbury Police documentation with respect to the accused's breath analysis before transporting her back to O.P.P. headquarters located on Regent Street on Highway 69 on the outskirts of Greater Sudbury. This is where the final documentation with respect to the accused's charges was prepared and served upon her as required by law. The evidence does not, then, indicate that the accused's section 7 Charter rights were infringed upon by the actions of either the Ontario Provincial Police or the Greater Sudbury Police.

Section 8 of the Charter

[27] Section 8 of the Charter provides to Canadians security against unreasonable search or seizure. The accused alleges that her section 8 Charter rights were breached because the Ontario Provincial Police and the Greater Sudbury Police obtained samples of her breath for analysis without, in the case of the O.P.P., having formed a reasonable suspicion that she had had the care and control of a vehicle after having consumed alcohol and further that, in the case of both police services, the officers involved, including Constable Nicklasson and Constable Roberge, did not have reasonable and probable grounds to demand of her breath samples for analysis.

[28] Once in possession of the roadside screening device results and the information she had previously received from third parties, including that of the accused herself, she was able to form reasonable and probable grounds that the accused had committed an offense contrary to section 253(1)(b) of the Criminal Code and to then make a formal breath sample demand on her.

[29] Not long after arriving at Greater Sudbury Police Service headquarters around 12:30 a.m. on September 8, 2013, Constable Nicklasson gave the breath technician, Constable Jacques Roberge, her grounds for arresting the accused and charging her with having the care and control of a motor vehicle with excessive alcohol in her body. Both Constable Nicklasson and Constable Roberge noticed indicia of impairment on the part of the accused. While it was Constable Ferro who actually asked her if she had been drinking earlier that evening, Constable Nicklasson clearly smelled alcohol on the accused's breath and provided this and her other information indicating that alcohol had been consumed by the accused within the 3 hours prior to her arrest.

[30] In R. v. Bush, 2010 ONCA 554, 101 OR (3d) 641, the leading case in this matter, the Ontario Court of Appeal addressed the issue of what constituted reasonable and probable grounds to make a demand for breath analysis with respect to a charge under section 253(1)(b) of the Criminal Code. Commenting on how drinking and driving prosecutions involved a continuum of findings beginning with reasonable suspicion of alcohol consumption and ending with proof beyond a reasonable doubt of criminal impairment, Appeal Justice Durno noted (see paragraph 37) that "between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds", those grounds being required under section 254(3) of the Criminal Code. Reasonable and probable grounds, Justice Durno noted from earlier Supreme Court of Canada decisions, "…does not amount to proof beyond a reasonable doubt or to a prima face case." "Reasonable and probable grounds," he stated, "have both a subjective and an objective component, the subjective component requiring "the officer to have an honest belief the suspect committed the offence and that "…The officer's belief must be supported by objective facts".(see paragraph 38) "The objective component" he explained, "is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, 1 S.C.R. 241.

[31] Commenting on the case before him, Justice Durno noted at paragraph 61 of the decision that "…A trained police officer is entitled to draw inferences and make deductions drawing on experience." "The trial judge", he remarked, was entitled to "take into consideration the experience and training of the police officer in assessing whether he objectively had reasonable and probable grounds… In addition, in determining whether reasonable and probable grounds exist, the officer is entitled to rely on hearsay". (paragraph 61).

[32] In the case before me, I relied on the experience and observations of the 3 police officers involved. If anything, their tolerance of the accused's behavior and their concern for her dignity and her legal rights went further than was required. There was no indication that they acted other than reasonably in pursuing their investigation and in dealing with the accused. The accused's explanation for the accident, her failure to explain why she caused Eddie Brush to bring her to a residence which was not her own when he offered her assistance and her behaviour both immediately before the roadside screening device test and during the trip to Sudbury Police headquarters seems to have convinced the officers involved that her ability to drive a motor vehicle was indeed impaired by her alcohol consumption.

[33] In R. v. Shepherd, 2009 SCC 35, S.C.R. 527, a Supreme Court of Canada decision dealing with an impaired drinking and "driving over 80" case, the Court recognized that there were subjective and objective components to be considered in assessing whether reasonable and probable grounds for making a section 254(3) breath demand exist. In finding that in the case before it the investigating police officer's subjective belief of impairment was based on the accused erratic driving pattern and indicia of impairment, the Court noted (see paragraph 23) that the accused's confusion could in itself be a sign of impairment. The investigating officer, the Court stated, had not needed to have "anything more than reasonable and probable grounds to believe that the driver committed the offense of impaired driving or drinking 'over 80' before making his demand." "He need not demonstrate" the Court wrote "…a prima face case for conviction before pursuing his investigation." (see paragraph 23)

[34] In the present case, the accused exhibited indicia of impairment including red and glassy eyes, unsteadiness and aggressive, noncompliant behavior. Her comments to the police officers that the only reason for her arrest and the breath demand was because someone had reported the accident to them. As noted earlier, her explanation for the accident made no sense. Nor did her evident inability to extricate her vehicle from the scene of the accident when the way to do so would have been apparent to a driver with a greater command of her faculties. Her failed attempts to drive her stranded vehicle onto Eden Township Road, thereby causing serious damage to its undercarriage, strongly suggests a person whose mind was clouded by alcohol. In light of this evidence, I must conclude that the accused's section 8 Charter rights were not infringed by the police.

Section 9 of the Charter

[35] Section 9 of the Charter provides that Canadians have the right not to be arbitrarily detained or imprisoned. The accused alleged that she was arbitrarily detained on September 7 and 8, 2013, both when she was asked to provide a sample into a roadside screening device and further when she was asked to provide further breath samples for breath analysis at Greater Sudbury Police headquarters. She also alleged that her section 9 Charter rights had been infringed upon when, having been effectively detained at about 12:00 a.m. on September 8, 2013, she was not released until approximately 3:30 a.m. later that morning.

[36] I spoke earlier about the reasons for the roadside screening device demand and for the formal breath demand made on the accused, so I will not repeat those comments. I note, however, that in her evidence, Constable Nicklasson explained why the accused had not been released around 3:30 a.m. A review of her evidence offers, in my opinion, an acceptable explanation for why she spent longer in police custody than would have been ordinarily the case. One can reasonably conclude that she would have been released earlier than she was had she been cooperative both with Constable Nicklasson and Constable Roberge. In the case of Constable Nicklasson, the effects of alcohol on her behaviour explain why some of the delay in her matter occurred. She was both combative and uncooperative with Constable Nicklasson. With respect to Constable Roberge, it is patently clear that the accused did her best to be uncooperative with him in providing the required breath samples. She offered no evidence and provided no report explaining why she had been unable to provide breath samples to Constable Roberge in a timely fashion. He himself testified that only once before in his years of experience as a breath technician had he encountered someone who for medical reasons was actually unable to provide a sufficient sample of his breath for analysis within a reasonable time of being requested to do so. In light of the evidence, I must therefore conclude that the accused was not arbitrarily detained or imprisoned by the police officers who dealt with her on September 7 and 8, 2013.

Conclusion

[37] The accused, Mary Lee Vanpoorten, was clearly impaired by alcohol when she returned home from Sudbury after 9:00 p.m. on September 7, 2013. While the Intoxilyzer results could not in the end be used to establish that fact, the evidence of James Rajotte, the crown's toxicologist, did. The toxicological and other evidence established beyond a reasonable doubt that the investigating officers and the breath technician acted appropriately and that they did not infringe the accused's Charter rights under sections 7, 8 and 9 of the Charter. For those reasons, I convict the accused of the offence with which she is charged pursuant to section 253(1)(b) of the Criminal Code.

Released: April 2, 2015

Signed: Justice A.L. Guay