Court File and Parties

Court File No.: Toronto 12000789/2010

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Shane Rutherford

Before: Justice Paul H. Reinhardt

Heard on: 24, 25, 26 March, 27, 28 August & 3 December 2014, and 15 January 2015

Reasons for Judgment released on: 21 May 2015

Counsel:

Sarah De Filippis for the Crown

The accused Shane Rutherford on his own behalf

REINHARDT J.:

Introduction

[1] Shane Rutherford is charged that he did, on or about 16 January 2010, in the City of Toronto in the Toronto Region, operate a motor vehicle:

(1) While his ability to operate a motor vehicle was impaired by alcohol or a drug; and further,

(2) Having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood;

Contrary to the Criminal Code

[2] In this proceeding he brought two applications, the first, undated, and a second, dated 8 August 2013, seeking, inter alia, relief, including the exclusion of evidence and a stay of these proceedings on the basis that his rights have been breached, contrary to the Canadian Charter of Rights and Freedoms (the "Charter").

[3] The first, undated application, alleged breaches under sections 10(b), 15(disability accommodation) & 9 (over holding in custody).

[4] The second, dated 8 August 2013, alleged breach of section 11(b).

[5] The Crown opposed these applications, and, in addition, opposed the manner in which these very different Charter claims were placed before the court, by the applicant, acting on his own behalf.

[6] On 24 March 2014, the first day scheduled for trial, the respondent-crown raised a number of procedural concerns, including the lack of sufficiency of the enumeration of the heads of Charter breach and the particulars of the allegations of Charter breach, and the appropriateness of the merging of apparently very distinct Charter claims in a blended trial and voir dire hearing.

[7] On that day, after extensive submissions, this court concluded that the application involved allegations of three distinct categories of Charter breach, logically, in terms of time frames, and with respect to existing court practice:

(1) 10(b);

(2) 11(b); and

(3) 9 and 15.

[8] It was agreed and this court ruled that we would proceed to hear the 11(b) application first. It was also agreed and I ruled that, if the 11(b) application was unsuccessful, I would hear the 10(b) application and the trial evidence in a blended hearing, and in the event that the 10(b) application failed, and there was sufficient Crown evidence to make a finding of guilt on the Crown's trial allegations, the court would then entertain the defence sections 9 and 15 applications in a third and distinct voir dire.

[9] The section 11(b) application was heard on 29 August and 12 & 13 September 2013. In a judgment released on 14 November 2013, the 11(b) application was dismissed.

[10] The blended trial and 10(b) application was then heard by this court over seven days: 24, 25 & 26 March and 27 & 28 August 2014 & 3 December and 15 January 2015.

[11] At the conclusion of the evidence, the trial was adjourned for written submissions. I received Mr. Rutherford's written submissions on 27 April 2015 and the Crown's submissions on 8 May 2015.

[12] In his written argument, Mr. Rutherford, for the first time, raised a new allegation of Charter non-compliance with section 8, in the police investigation and his arrest, with respect to the "reasonable and probable grounds" ("RPG") of the initial arrest, and the grounds for the breath demand, as required by section 254(3) of the Criminal Code, when no field sobriety tests or approved screening device were administered.

[13] In written reply argument on the section 8 Charter breach allegation, the Crown relied on the decision of the Ontario Court of Appeal in R. v. Charette, 2009 ONCA 310, at para. 46, and asked that I not consider the application to exclude the test results pursuant to section 8, as no initial claim for exclusion on this basis was placed before the court at the commencement of the trial.

[14] I have decided that, despite Mr. Rutherford's failure to comply with the clear procedural guidance from our Court of Appeal in Charette, and other cases, I will consider the section 8 argument as advanced by the defendant as well as the 10(b) claim. My reason for this is that Mr. Rutherford is representing himself, and he did ask questions of Constable Henry Dyck regarding his factual grounds for his decision to arrest and to make a breath demand and also in his own testimony at trial, he did advert to these dual allegations.

[15] In my view, the Crown in this proceeding did have some actual notice, albeit, not written, of these alleged Charter breaches.

[16] Therefore, in my view, as a self-represented accused, he should be permitted to make these two additional Charter arguments, despite his not providing the Crown with proper and timely written notice (See R. v. Arbour, [1990] O.J. No. 1353 (Ont.C.A.)).

Summary of the Evidence

History of Disability & MAG Court Services Accommodation

[21] In his initial application dated 8 August 2013 for a stay of proceeding, Mr. Rutherford filed an affidavit sworn 12 August 2013, and testified to the fact that as an adolescent he was subject to a serious chemical fire accident, suffering burns over much of his body, including his chest, neck and arms. Since that time he has suffered from laboured breathing due to smoke inhalation which caused extensive scaring and damage to the functioning of his lungs.

[22] He testified that over the years since the accident, he has undergone in excess of 35 lengthy and complicated operations to remove scar tissue, so that his growing body could develop, and he would not be physically immobilized or unable to breath due to the extensive scarring from the chemical fire, which included scarring to his chest and neck.

[23] His injuries have also had an impact on his ability to represent himself in this trial proceeding, as he is limited in his ability to see and read documents, and is easily tired by the demands of his attendance and self-representation in court.

[24] As a result of these limits on his ability to represent himself, between December and April of 2013, pursuant to pre-trial case-management meetings before a series of case-management judges, including Justices Harris, Boivin and Khawly, an "accommodation agreement" was negotiated with Mr. Roman Haruk, in the office of Court Services, to provide Mr. Rutherford with a certified court reporter, Arlene Finnegan, to provide a "real time live stream" of the court proceedings to Mr. Rutherford's computer for the duration of the trial.

Trial Evidence on Crown Allegations

[25] The evidence regarding the initial investigation and arrest at the roadside is quite straight-forward. As part of the narrative, I will refer to some of that testimony.

Constable Henry Dyck

[26] Police Constable Henry Dyck testified that on 16 January 2010 he was working a night shift in a uniform capacity with a companion officer doing "public response" motor vehicle patrol work, and was returning to 14 Division in downtown Toronto, at approximately 4:05 in the morning.

[27] Constable Dyck testified that his marked police vehicle was stopped at the Huntley Street "T-junction" intersection with Bloor Street in downtown Toronto, waiting for the red light to change to green, and was planning to make a left-hand turn in order to go westbound on Bloor.

[28] Constable Dyck testified that when his light turned to green, he entered on to Bloor Street, and began to make his left turn, he was confronted with a silver vehicle coming eastbound at a high rate of speed, which appeared to be about to disobey the lights and crash into his police vehicle.

[29] Constable Dyck testified that he accelerated quickly into the westbound Bloor Street lane on the north side of Bloor to avoid the on-coming silver vehicle, which, in deed did go through the red light, and sped through the intersection on the south side of Bloor, heading eastbound, narrowly avoiding a collision with the marked police cruiser.

[30] Constable Dyck testified that he then immediately made a "U-turn on Bloor and proceeded eastbound on the south side of Bloor to follow the silver vehicle.

[31] Constable Dyck testified that as soon as he made his U-turn to proceed eastbound, the silver vehicle, itself, made a U-turn, and came back westbound on the north side of Bloor.

[32] Constable Dyck testified that he thus was required to make a second U-turn, to again head westbound on Bloor, and activated his emergency lights and sirens.

[33] Constable Dyck testified that once he activated his lights and siren and proceeded westbound, the silver vehicle pulled to the side of the road on the north side of Bloor, facing westbound, west of the T-junction of Huntley and Bloor.

[34] Constable Dyck testified that he proceeded to exit his police vehicle from the driver's door, and approached the driver of the silver vehicle at the driver's side window, and motioned the driver to roll down his window, which the driver immediately did.

[35] Constable Dyck testified that he immediately told the sole occupant and driver, who he later identified as Mr. Rutherford:

"You almost hit me"

[36] Constable Dyck testified that to this, Mr. Rutherford responded:

"Well, I thought you were already through"

[37] Constable Dyck testified that Mr. Rutherford seemed oblivious to the fact that he had just gone through a red light and almost collided with his police vehicle.

[38] Constable Dyck testified that while he was initially standing outside Mr. Rutherford's driver's side window, approximately one foot away, he was able to observe that there was an obvious odour of alcohol emanating from his breath.

[39] Constable Dyck testified that he asked Mr. Rutherford if he had had anything to drink that evening, and Mr. Rutherford replied that he had had one drink.

[40] Constable Dyck testified that he also observed at this point that Mr. Rutherford's speech was very slow and seemed slightly slurred.

[41] Constable Dyck testified that after he received Mr. Rutherford's licence and confirmed his identity, he requested that Mr. Rutherford step out of his vehicle, and observed that his movements were very slow and that he was unsteady on his feet, despite a road that was clear of snow or ice.

[42] Constable Dyck testified that the air outside was clear and crisp, and he continued to detect an odour of alcohol on Mr. Rutherford's breath, and could observe that his eyes were bloodshot and glossy.

[43] Constable Dyck testified that he then requested that Mr. Rutherford produce his ownership and insurance, at which point Mr. Rutherford hesitated in responding for approximately five seconds and then told him he needed to retrieve his documents from inside his car.

[44] Constable Dyck testified that he observed Mr. Rutherford go back inside his car and retrieve a plastic package in which there were a number of items.

[45] Constable Dyck described Mr. Rutherford's movements in moving back inside and then outside of his vehicle as unsteady, including stumbling from time to time.

[46] Constable Dyck testified that the first document that was retrieved from the package and handed to him was not, in fact, his ownership, and there was an "awkward" moment or period of time when it became clear to Constable Dyck that the wrong document had been produced, and Constable Dyck had to ask Mr. Rutherford a second time to produce the motor vehicle ownership.

[47] Constable Dyck testified that there was a further "quite long" delay of approximately fifteen seconds during which time Mr. Rutherford continued to go through the plastic package, in an unsuccessful search for the vehicle ownership.

[48] Constable Dyck testified that eventually Mr. Rutherford realized that he had placed the ownership, which was separately enclosed in plastic, on the hood of his vehicle, and was able to retrieve it and hand it to Constable Dyck.

[49] Constable Dyck testified that his conversation with Mr. Rutherford as to his consumption of alcohol continued, and at 4:10 he formed the opinion that Mr. Rutherford's ability to operate a motor vehicle was impaired by alcohol and advised him that he was under arrest for that offence.

[50] Constable Dyck testified that he and his companion officer, Constable Daniel Ramos gave effect to the arrest by taking physical control of Mr. Rutherford and placing him in handcuffs, he became quite belligerent, and started yelling, repeatedly:

"No, I'm not under arrest. I'm not under arrest"

[51] Constable Dyck testified that in addition to stating he was not under arrest again and again, Mr. Rutherford informed the officers that they had no right to arrest him in that he had done nothing wrong.

[52] Constable Dyck also testified that in giving effect to the arrest Constable Ramos seized some pills that the officers suspected were illegally possessed substances but which Mr. Rutherford maintained were prescription drugs for which he had a lawful prescription.

[53] Constable Dyck testified that at this time Mr. Rutherford was also charged with Controlled Drugs and Substances Act ("CDSA") unlawful possession of Schedule 3 substances and at 4:15 placed in the rear of the police car and read his rights to counsel, given a breath demand, and asked to accompany the officers to the station.

[54] Constable Dyck testified that Mr. Rutherford was continuously yelling, interrupting and interjecting throughout this arrest and procedures in the back seat of the police cruiser.

[55] Constable Dyck testified that Mr. Rutherford's continuing yelling, interruptions and belligerence, accompanied by the smell of alcohol, glassy and bloodshot eyes, and now rapid, repetitive verbal delivery, after his arrest, was consistent with the demeanour of someone who had consumed a large quantity of alcohol.

[56] Constable Dyck testified that he kept Mr. Rutherford in the back of his vehicle while attending to various tasks, including locating the closest police station for the breath testing, which turned out to be Toronto Traffic Services, and then arranging for the towing of Mr. Rutherford's vehicle.

[57] Constable Dyck testified that at approximately 4:36 he left the location of the arrest and drove to Toronto Traffic Services, located at 9 Hanna Avenue in Toronto, arriving at 4:50.

[58] Constable Dyck testified during the drive to 9 Hanna, Mr. Rutherford continued his aggressive manner, sometimes laughing for no apparent reason initially and then pointedly casting aspersions on the officer's driving and general conduct and asking Constable Dyck, in a joking manner, in Constable Dyck's words:

"When I decided I wanted to spend the whole night with him."

[59] At the station, the sally port and booking procedure is recorded on a video system and after confirmation by the witness, the booking video, approximately six minutes, was played in court and became Exhibit 1 in this proceeding.

[60] Constable Dyck testified that after his booking, at approximately 5:02, Mr. Rutherford was lodged in a holding cell, and arrangements were made to permit him to speak to duty counsel.

[61] Constable Dyck testified that at 5:17 Police Constable Ramos took Mr. Rutherford to speak with duty counsel in a private, sound proof booth, after which he was again lodged in the cells.

[62] Constable Dyck testified that Mr. Rutherford was presented to the breath technician, Constable Jeffrey Kell, at approximately 5:25 in the morning.

[63] Constable Dyck identified and the Crown placed before the court as Exhibit 2 in the proceeding, the video recording of the Breath Technician Room interview and breath tests.

[64] Constable Dyck confirmed, and the breath tech video depicted, Mr. Rutherford stating, that, although he had spoken by phone with a duty counsel, by the name of "Mr. Johnston" that he believed this person was not called to the bar in Ontario and therefore was not a "lawyer". As disclosed on the breath tech video, Exhibit 2, Mr. Rutherford argued for some time with Constable Kell that he did not have to take the breath tests, because he had not, in his view, spoken with a lawyer qualified to give him legal advice.

[65] Exhibit 2 discloses that ultimately Mr. Rutherford, despite his protestations, did blow into the breathalyser, and two successful readings were obtained, at 5:43 and 6:03, of 170 milligrams of alcohol in 100 millilitres of blood; and 180 milligrams of alcohol in 100 millilitres of blood, respectively.

Constable Jeffrey Kell

[66] Constable Jeffrey Kell testified for the Crown and confirmed the contents of the breath tech video.

[67] Constable Kell also testified that in his view, he was satisfied that Mr. Rutherford had received legal advice from a person qualified to do so, and that eventually, although very animated about the interaction he had with the duty counsel, Mr. Johnston, Mr. Rutherford did eventually became cooperative. (See Exhibit 2, the Breath Tech video.)

Shane Rutherford

[68] Shane Rutherford testified on his own behalf.

[69] Mr. Rutherford testified that he was driving his mother's car on the night in question and could not locate all the documents because he was not familiar with where the documents were in the package, and more importantly, he could not read them because of the background colouring which was pink and blue.

[70] Mr. Rutherford testified that he was very surprised when he was arrested because of the very short passage of time after the stop at roadside, before his arrest, and testified he was charged with both drug offences and drinking and driving offences.

[71] He testified that when he was arrested he was cautioned and told that he had the right to speak to a lawyer, "without delay".

[72] He testified, however, that when he repeatedly asked to be able to speak to a lawyer at the roadside, and to use Constable Dyck's cell phone, both at the scene and while in transit to the station, nothing was done until they reached the station.

[73] The only response by the arresting officers to his repeated requests came at the Traffic Services, when Constable Ramos arranged for him to speak to legal aid duty counsel in a "telephone booth" at the station.

[74] Mr. Rutherford testified that as he was being driven by Constable Dyck to Traffic Services he and Constable Dyck had exchanged mutual criticisms of each other's driving during the evening.

[75] Mr. Rutherford testified that when he was being booked at the station he was informed that he was being charged with both unlawful possession of a controlled substance and a "drinking and driving" charge.

[76] Mr. Rutherford testified, and Exhibit 1, the Booking and Breath Room video footage disclose, that as he was being booked and informed of the charges, and when he spoke to the breath technician Constable Kell, he would inform the officers, regarding the allegations:

"I refute that"

[77] Mr. Rutherford also testified regarding his "telephone booth" phone conversation with the legal aid duty counsel.

[78] Mr. Rutherford testified that when he entered the booth the phone receiver was handed to him and he heard a voice speaking to him, but also loud music of some sort in the background.

[79] Mr. Rutherford testified that the caller identified himself as duty counsel and they began to discuss the charges he was facing.

[80] Mr. Rutherford testified that during this conversation, he expressed his reservations about taking a breathalyser test, when, in his opinion, a "blood test" would be a more accurate test, that, would, in his words:

"Resolve everything"

[81] Mr. Rutherford testified that the duty counsel told him he faced a severe penalty if he refused to provide samples of his breath into the breathalyser.

[82] Mr. Rutherford testified that because of the background noise and his difficulty in hearing the duty counsel, he asked where the duty counsel was calling from, and was informed that the duty counsel was calling from British Columbia.

[83] Mr. Rutherford testified that during this phone conversation, the phone connection broke down, and in frustration, he threw the receiver up into the air, terminating the conversation.

[84] Mr. Rutherford testified that shortly after this Constable Ramos came and took him for his first visit with Constable Kell, the breath technician.

[85] Mr. Rutherford testified that when he began his interview and testing with Constable Kell, Constable Kell asked him asked him if he had spoken to a lawyer.

[86] Mr. Rutherford testified that he told Constable Kell that his principle concern was that on a number of occasions in his conversation with, duty counsel, he couldn't hear what the duty counsel was saying.

[87] Mr. Rutherford testified that he also told Constable Kell that the duty counsel had told him that he was not qualified to practice law in Ontario, and therefore in answering Constable Kell's inquiry, Mr. Rutherford stated "No!".

[88] Mr. Rutherford testified that this answer appeared to frustrate Constable Kell, and in Mr. Rutherford's words:

"He decided not to listen to me"

[89] Mr. Rutherford testified that he did not want to take the breathalyser because his lungs had been scarred in a chemical fire and as a result, he couldn't breathe deeply, and feared he would not be able to provide a sample of his breath.

[90] Mr. Rutherford testified that he didn't tell Constable Kell that he had been in a chemical fire resulting in scarring to his lungs, or that he couldn't breathe deeply and therefore feared he would be unable to provide a sample.

[91] Mr. Rutherford testified that he thus, reluctantly blew into the breathalyser, and on the two visits to Constable Kell successfully provided breath samples, each of which he testified resulted in his words, in a "fail" reading.

[92] At the end of his testimony-in-chief, Mr. Rutherford testified that the following day, after these events, he spoke to Owen Widgerson, Barrister & Solicitor, to hire him to be his lawyer.

[93] In cross-examination, Mr. Rutherford conceded that on the evening in question, prior to his arrest on the morning of the 16th of January, he had attended a party at the University of Toronto, in the Annex neighbourhood for members of the "Campus Coop".

[94] Mr. Rutherford testified, to his recollection, that during the evening before his arrest he had consumed three beers at the party and later, one vodka and Diet Coke at a local pub nearby "The Fox & the Fiddle".

[95] Mr. Rutherford conceded in cross-examination that he had a "near-collision" with the marked police cruiser driven by Constable Henry Dyck.

[96] Mr. Rutherford also conceded that he was "upset" at the scene when he realized that he was under arrest for impaired driving and was going to have to provide a sample of his breath into a breathalyser.

[97] Mr. Rutherford testified in cross-examination that he was advised during the arrest that he had a right to consult a lawyer, but that he never told the police that he had a specific lawyer he wished to call, either at the scene or at Traffic Services, where he gave breath samples, or at 14 Division, where he was held until his release the following day.

[98] Mr. Rutherford testified in cross-examination that he had requested the use of a cell phone at the scene, but that this request was denied.

[99] Mr. Rutherford, in cross-examination, also conceded that when he asked his lawyer, Owen Widgerson to investigate the qualifications of the duty counsel lawyer named "Mr. Johnston" who he had spoken to by long-distance phone call at Traffic Services, Mr. Widgerson confirmed that the person giving Mr. Rutherford legal advice on the morning of his arrest was qualified to do so.

[100] Mr. Rutherford further conceded in cross-examination that as a result of Mr. Widgerson's inquiries, they made no further formal complaints about the duty counsel process on the morning of his arrest.

[101] Mr. Rutherford was also cross-examined about his testimony as to the issue of the sufficiency of Police Constable Dyck's grounds to arrest him for impaired driving and to make a breath demand.

[102] Mr. Rutherford testified in cross-examination that he wanted the police to administer a "roadside police test" as to his sobriety, but they failed to do so, and as a result he had a "heated" exchange with Constable Dyck and also believed that he should not have to take the breathalyser test at the station.

The Legal Framework

[103] The requirements for a police officer to arrest without warrant a person found committing an indictable offence under the Criminal Code, are set out in section 495:

Arrest without warrant by peace officer

495. (1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

(b) a person whom he finds committing a criminal offence; or

(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

(2) A peace officer shall not arrest a person without warrant for

(a) an indictable offence mentioned in section 553,

(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or

(c) an offence punishable on summary conviction,

in any case where

(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence, or

(iii) prevent the continuation or repetition of the offence or the commission of another offence,

may be satisfied without so arresting the person, and

(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.

(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; and

(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2).

[104] The legislative framework for a police officer to demand that a person provide a sample of their breath into an approved instrument under the Criminal Code in order to determine the concentration of alcohol in a person's blood is set out in section 254, sub-sections 2 and following:

Testing for presence of alcohol or a drug

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

(2.1) For greater certainty, a peace officer may make a video recording of a performance of the physical coordination tests referred to in paragraph (2)(a).

(3) 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 offence 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

(a) 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, or

(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood; and

(b) if necessary, to accompany the peace officer for that purpose.

(3.1) 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 offence under paragraph 253(1)(a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person's ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.

(3.2) For greater certainty, a peace officer may make a video recording of an evaluation referred to in subsection (3.1).

(3.3) If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not made under paragraph (2)(b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, a sample of breath that, in the evaluating officer's opinion, will enable a proper analysis to be made by means of an approved instrument.

(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person's ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable,

(a) a sample of either oral fluid or urine that, in the evaluating officer's opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or

(b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine whether the person has a drug in their body.

(4) Samples of blood may be taken from a person under subsection (3) or (3.4) only by or under the direction of a qualified medical practitioner who is satisfied that taking the samples would not endanger the person's life or health.

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

(6) A person who is convicted of an offence under subsection (5) for a failure or refusal to comply with a demand may not be convicted of another offence under that subsection in respect of the same transaction.

[105] Section 10 of the Charter provides:

Arrest or detention

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Legal Issues

[106] The Crown is required to prove the allegations in a criminal case to the criminal standard of proof: "Beyond a Reasonable Doubt".

[107] Mr. Rutherford's written materials raise two other issues which I am prepared to deal with at this time, in the blended voir dire for Charter relief and trial:

(1) That his arrest at the scene for impaired driving was arbitrary and without reasonable and probable grounds;

(2) That his section 10 Charter-protected rights to be informed promptly of the reasons for his arrest, to retain and instruct counsel without delay, and to be informed of that right, was infringed.

[108] In his written materials Mr. Rutherford argues that Constable Dyck had administered no Approved Screening Device or field sobriety tests before arresting him for impaired driving and demanding that he provide a brief sample into an approved instrument in order to establish the concentration of alcohol in his blood at the time of driving.

[109] Mr. Rutherford submits, at page two of his written submissions:

Officer Dyk testified that that there was a near collision between his police vehicle and that of the accused who was " travelling at a high rate of speed" at approximately 4AM in the morning. Officer Dyk testified that his traffic light was green it was refuted by the accused. Officer Dyk did not charge the accused with speeding, failing to stop, an illegal u-turn or any of a number of possible HTA violations even though his escort Officer Ramos was witness to his version of events.

It is agreed that the accused proceeded through the t-intersection at Huntley and Bloor Street East made a u-turn and came to a complete stop necessitating officer Dyk to perform several u-turns in order to position his police vehicle behind that of the accused. Exhibit #2 hand drawn map. It is the position of the defense that the accused exhibited a great deal of control and coordination in doing so.

Officer Dyk testified that that at the stop his vehicle's police emergency lights were active, and also that the accused presented a "lazy eye". Officer Dyk examined the accused driver's license which indicated "corrective lenses" are required. Ignoring both facts Officer Dyk in less than 5 minutes made a determination of impairment based upon faulty observations that could not form the basis of "a reasonable suspicion"

[110] Mr. Rutherford further states, at page three of his written submissions:

Considering the late hour it is not unreasonable that one who wears corrective contact lenses to have bloodshot eyes. Eye fatigue at that hour is common and alone is not sufficient to form a reasonable suspicion. Officer Dyk testified that the accused did not use the vehicle for support while being questioned. U

In less than 5 minutes Officer Dyk arrested the accused. The accused expressed shock at the arbitrariness of the arrest. There was no test or examination that would suggest this was an appropriate arrest, Officer Dyk made no explanation as to how he came to this determination and would not allow the accused to query as to why he was under arrest. Officer Dyk handcuffed the accused and read him his rights which included the right to obtain and instruct council without delay.

The accused repeatedly asserted he wished to speak to council. Officer Dyk testified that he did not make an effort to determine if a payphone was nearby, he admitted he had his personal cell phone upon his person. He did not determine if the accused had a cell phone

Analysis of the Accused's Submissions

(1) Did the police have the requisite grounds to:

(a) arrest Mr. Rutherford for impaired driving; and

(b) to make a breath demand?

[111] In my view, on the night on question the police had grounds for both the actions taken, referred to above.

[112] Constable Dyck testified to the factors that he considered, including the manner of driving, Mr. Rutherford's demeanor, the manner of his movements, the obvious odour of alcohol and his admission of alcohol consumption earlier in the evening.

[113] In his testimony, Mr. Rutherford explained that due the injuries he had suffered as a youth he appeared difficulty complying with Constable Dyck's requests at the scene.

[114] He submitted that these injuries made him unable, for example, to read his driving documents and therefore comply with Constable Dyck request to produce his insurance papers.

[115] He also explained that the limitations included physical movement and walking.

[116] Thus, he argued that his presentation at the time of his vehicle stop and his arrest would have not been due to alcohol impairment, but rather his pre-existing disability.

[117] However, he also conceded that he never told any officer either at the scene or at the Traffic Services, of his physical disabilities.

[118] Thus, at all material times in the investigation the police officers with which he had contact initially during the investigation at roadside could not take these disabilities into account in evaluating his conduct.

[119] Moreover, I have concluded that even if Constable Dyck had been made aware of Mr. Rutherford's physical limitations at the outset of his investigation at the scene, the other elements of his observation were sufficient to provide the basis for the steps taken.

[120] In weighing the testimony of both Mr. Rutherford and Constable Dyck, regarding the manner of driving, Mr. Rutherford's testimony does not, in my view, raise doubt as to the initial driving conduct attributed to him by Constable Dyck.

[121] In my view, the driving itself, as observed by Constable Dyck, included going through a red light at high speed, almost colliding with the marked police cruiser, an arbitrary U-turn, and an apparent total lack of recognition of the dangerous nature of his driving maneuvers, when initially questioned by Constable Dyck at the roadside.

[122] Secondly, I accept Constable Dyck's testimony as to his initial observations of Mr Rutherford's demeanor at the roadside which included substantial pauses and hesitations before responding to direct questions, slowness of his physical mannerisms and verbal responses to questions, his slow and slurred speech when he replied, his bloodshot and glossy eyes, and the obvious odor of alcohol on his breath.

[123] Mr. Rutherford's testimony regarding Constable Dyck's observations did not really address most of those initial observations, including his manner of driving, demeanour, manner of speaking and obvious evidence of alcohol consumption.

[124] In his written submissions Mr. Rutherford suggested that Constable Dyck could not, objectively rely on his observation of Mr. Rutherford's strabismus or "lazy eye" when evaluating his demeanor, or evidence of consumption, because there was a requirement on Mr. Rutherford's driver's licence to wear "corrective lenses", thus providing the officer with an explanation of this visual observation that was not as a result of alcohol impairment or consumption.

[125] Mr. Rutherford also testified to his difficulty in getting in and out of his vehicle while retrieving his vehicle documents, and his difficulty in reading his documents, all of which were relied upon by Constable Dyck as signs of impairment, when actually they were signs of his pre-existing disability.

[126] Mr. Rutherford concluded in his written submission that I should conclude that Constable Dyck made a determination of his impairment:

Based upon faulty observations that could not form the basis of "a reasonable suspicion"

[127] In my view, even after removing those factors relating to his physical limitations from the total set of observations, there was sufficient evidence of impairment to provide Constable Dyck with the subjective and objective grounds for the arrest and breath demand.

[128] In this submission, although he refers to "reasonable suspicion" of alcohol in the body as found in subsection 254(2) (grounds for roadside sobriety test or approved screening device demand) rather than the higher standard of "reasonable grounds to believe" excess alcohol in body or "over 80" as found in subsection 254(3) (grounds for a breath demand), Mr. Rutherford has not succeeded, in my view, in showing that Constable Dyck did not have the requisite grounds to make a breath demand based upon the totality of his observations that morning.

[129] Mr. Rutherford's written submissions on this point are also premised on the proposition that Constable Dyck could not have the requisite grounds to arrest him or to make an approved instrument breath demand under 254(3) without first conducting roadside testing for mechanical "field sobriety" testing or roadside "blood alcohol" testing with an approved screening device, as permitted in 254(2).

[130] In my view, the case law is clear that 254(3) may be the foundation of an arrest and breathe demand without recourse to the provisions of 254(2).

[131] Mr. Rutherford's physical difficulties and demeanor in retrieving and reading his vehicle documents, and his "lazy eye", in my view, were not essential for Constable Dyck's reasonable grounds to believe that Mr. Rutherford was committing an offence under section 253.

[132] In addition, I also find as a fact, that Constable Dyck had the requisite reasonable grounds to believe that Mr. Rutherford had committed the offence of "impaired driving" and therefore Constable Dyck was entitled to make an arrest at the scene.

[133] Mr. Rutherford, as a witness, testified that he feared that his on-going breathing problems caused him to fear that would not be able to comply with the breath demand, and therefore wanted the police to permit him to provide a blood sample, instead.

[134] The provisions of the Criminal Code for testing for the presence of alcohol in the body is set out in section 254.

[135] Constable Dyck chose to make a breath demand, rather than seek a blood sample, based upon his lack of knowledge regarding Mr. Rutherford's scarred lungs.

[136] There are reasons to prefer a breath sample, as this is a less invasive intervention than the taking of a blood sample.

[137] I have concluded that based upon Constable Dyck's knowledge at the time of his making the demand, it was appropriate.

[138] In any event, in my view, Mr. Rutherford's concern became moot, when he successfully complied with the breath demand and provided two suitable samples of his breath to Constable Kell at Traffic Services.

(2) Were Mr. Rutherford's section 10 Charter-protected rights infringed?

[139] The Crown submits, and I accept, that there is both an informational componant, and an implementational componant to section 10 of the Charter.

[140] In my view, the evidence as a whole establishes that both aspects of section 10 were complied with in this case.

The Informational Component

[141] Mr. Rutherford himself conceded in his testimony that he was aware that he was being arrested for impaired driving and was immediately thereafter given a breath demand and that he was informed of his right to retain and instruct counsel without delay.

[142] At this initial point in the narrative, his written submission is that the reasons for the arrest were not forthcoming from Constable Dyck, and that Constable Dyck did not allow Mr. Rutherford to:

Query as to why he was under arrest

[143] Constable Dyck testified that when he and Constable Ramos attempted to give effect to the arrest, Mr. Rutherford became loud, hostile and argumentative, and essentially cut off any discussion by straight-forward denials that he had done anything wrong and repeatedly stating:

No, I am not under arrest. I'm not under arrest.

[144] I accept Constable Dyck's description of this portion of the encounter with Mr. Rutherford.

[145] On this point, I have therefore concluded that Mr. Rutherford has not established that is informational rights were breached.

The Implementational Component

[146] The Crown submits, and I accept the submission, that section 10(b) places two implementational duties on state authorities where a detainee indicates he wishes to exercise the right:

(1) To provide a detainee with a reasonable opportunity to consult counsel; and,

(2) To refrain from eliciting conscripted evidence from the detainee until he or she has had a reasonable opportunity to consult counsel.

(See R. v. Bartle)

[147] In his written submissions Mr. Rutherford asserted that he should have been permitted to use the officer's personal cell phone, at the roadside, to contact counsel.

[148] I accept the Crown submission on this point that this argument is contrary to the clear statement of the law by the Supreme Court of Canada in R. v. Taylor 2014 SCC 50, at paragraphs 24 to 27, in which Justice Rosalie Abella states:

24 The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 2000 ABCA 301, 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

25 This means that to give effect to the right to counsel, the police must inform detainees of their s. 10(b) rights and facilitate access to those rights where requested, both without delay. This includes "allowing [the detainee] upon his request to use the telephone for that purpose if one is available" (Manninen, at p. 1242). And all this because the detainee is in the control of the police and cannot exercise his right to counsel unless the police give him a reasonable opportunity to do so (see Brownridge v. The Queen, [1972] S.C.R. 926, at pp. 952-53).

26 Until the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from taking further investigative steps to elicit evidence (R. v. Ross, [1989] 1 S.C.R. 3, at p. 12; R. v. Prosper, [1994] 3 S.C.R. 236, at p. 269).

27 The majority in the Court of Appeal was of the view that in light of Cst. MacGillivray's acknowledgement that he could have provided his own cell phone, the "'mistake' in failing to provide it" gave rise to a breach of s. 10(b). The Crown takes issue with this finding, and I agree that in light of privacy and safety issues, the police are under no legal duty to provide their own cell phone to a detained individual.

[149] In my view the evidence before me establishes that Constables Dyck and Ramos facilitated access to duty counsel at the first reasonable opportunity when Mr. Rutherford spoke to duty counsel at the station.

[150] Mr. Rutherford spoke to a duty counsel at the station who he now concedes, was qualified to give him legal advice.

[151] He has submitted to me that there were problems in either the phone connection or background noise that interfered and cut short his opportunity to receive legal advice.

[152] However, I accept the Crown's submission on this point that Mr. Rutherford was "confrontational and difficult" at this stage of the investigation as observed on Exhibits 1 and 2 at the station and in my view has not established, on the evidence, a implementational breach of section 10(b) on the evidence.

[153] For these reasons, I have concluded that Mr. Rutherford's application herein for Charter relief under 10(b) should be dismissed.

Has The Crown Proven the Allegations to the Criminal Standard: Beyond a Reasonable Doubt?

Count 1: Evidence of Impaired Driving

[154] The Crown's evidence on this count is faced with a fundamental problem.

[155] Mr. Rutherford has raised throughout this trial the issue of his physical limitations due to significant pre-existing injuries he suffered in a chemical fire as a youth, which long pre-date the charges before this court.

[156] During this trial he has consistently raised concerns regarding the impact of these injuries through questioning of Crown witnesses and his own testimony.

[157] He has testified that these injuries affect his vision and physical mobility, and thus made his ability to respond to the conventional police investigation in this case, including producing his driving documents and moving back and forth in getting into and out of his car and the police vehicle.

[158] He testified that was unable to read the print on his documents.

[159] In addition, he was unable to move in a fluid way into and out of his car and the police vehicle due to limited physical flexibility and mobility.

[160] It is at least arguable that these limits made his movements appear clumsy and un-coordinated due to alcohol, when they actually were the result of his on-going physical limitations.

[161] He also suffers from a strabismus, which caused him to demonstrate a "lazy eye" when first observed by the police in this investigation.

[162] He has conceded that he did not alert the police to his pre-existing physical limitations, but they must none-the-less, in my view, be weighed in my evaluation of the Crown's burden of proving Count 1, "impaired driving", to the criminal standard.

[163] Mr. Rutherford had clearly consumed alcohol before driving and before being stopped on the date in question.

[164] Mr. Rutherford also drove in a careless and erratic manner as depicted by the police evidence, which almost resulted in a serious motor vehicle collision.

[165] Mr. Rutherford was also bombastic, argumentative and difficult once arrested, and certainly demonstrated these characteristics both at the scene of the arrest and at the station, as captured clearly in Exhibit 1 in this proceeding.

[166] However, in my view, it is clear conjecture on the police observers' part, to attribute certain behavioural markers of his mobility, ability to produce and read documents and even certain of what might be referred to as "demeanor" to alcohol consumption.

[167] In my view, in this trial, many of the above observations do not assist the Crown in its allegation of impaired operation of a motor vehicle.

[168] Once these markers are removed from the equation, in my view, much of the pre-arrest and post-arrest observations of Mr. Rutherford are, at least partially, attributable to his physical limitations.

[169] As such, in my view, the Crown evidence on count 1, impaired driving, lacks the necessary certainty to support a finding of guilt.

[170] As a result, I will dismiss the first count before the court.

Count 2: Driving with Blood Alcohol Content Exceeding the Legal Limit

[171] In contrast, to count 1, the Crown has proven count 2.

[172] The two breath test readings at 5:43 and 6:03 of 170 and 180 milligrams of alcohol in 100 millilitres of blood are well beyond the legal limit of 80 milligrams.

[173] As a result, on count 2, there will be a finding of guilt.

Released: 21 May 2015

Signed: "Justice Paul H. Reinhardt"