Court Information

Ontario Court of Justice

Date: June 8, 2015

Court File No.: Sudbury

Between:

Her Majesty the Queen

— and —

Jeanne Beaulieu

Before: Justice Randall W. Lalande

Heard on: March 20 and 30, April 20, 2015

Reasons for Judgment released on: June 8, 2015

Counsel

Colleen Hepburn — counsel for the Crown

Lindsey Santerre — counsel for the defendant Jeanne Beaulieu

LALANDE J.:

1: INTRODUCTION

[1] Jeanne Beaulieu entered a plea of not guilty to a single count information alleging that on May 9, 2014 she had the care and control of a motor vehicle while her ability was impaired by alcohol or a drug contrary to section 253(1)(a) of the Criminal Code.

[2] Ms. Beaulieu submits that as the investigation leading to her arrest unfolded, the police violated her rights under section 8, 9, 10(a) and 10(b) of the Charter of Rights and Freedoms. She submits that as a result of the Charter breaches certain evidence obtained during the course of the investigation should be excluded.

[3] Ms. Beaulieu also takes the position that even if it is not found that there were Charter breaches or the evidence sought to be excluded is not excluded, the Crown has failed to prove that she is guilty of the offence beyond a reasonable doubt. Counsel consented that the trial proceed with a blended voire dire on the Charter issues.

2: ISSUES

[4] The issues as framed and argued by Ms. Beaulieu are as follows:

• Did the investigating officer have reasonable and probable grounds to make a demand under section 254(3) of the Criminal Code [or should he have made an ASD demand under section 254(2)]?

• Was the drug evaluation demand made as soon as possible and were there reasonable and probable grounds to make the demand?

• Were Ms. Beaulieu's rights as set out in sections 10(a) and 10(b) of the Charter infringed?

3: SUMMARY OF THE EVIDENCE

3.1 General

[5] The first Crown witness was Charmain Marshall. She is an experienced Beer Store employee. She called 9-1-1 after making certain observations of Ms. Beaulieu at the Beer Store and driving away. Constable Shawn Rainville observed Ms. Beaulieu driving soon after receiving a dispatch call. He stopped Ms. Beaulieu's vehicle and placed her under arrest. Constable Alain Gagnon testified as the second officer at the scene where Ms. Beaulieu was arrested. Constable Andrew Hinds testified as a breathalyser technician and as a drug recognition expert. Mr. James Rajotte is a toxologist at the Centre of Forensic Sciences. He provided a written report and gave expert evidence.

[6] Ms. Beaulieu did not testify and no witnesses were called by her to give evidence.

3.2 Charmain Marshall

[7] Charmain Marshall is an experienced employee at the Beer Store at Hanmer. She observed Ms. Beaulieu enter the Beer Store near lunchtime. She described Ms. Beaulieu as having red or purple lips which in her observation looked like wine stains. Ms. Beaulieu had difficulty with her balance. In describing Ms. Beaulieu's demeanour and appearance, Ms. Marshall stated that she was staggering, slurring, had glossy eyes, was incoherent and staring.

[8] While in the Beer Store, Ms. Beaulieu approached the counter and asked for 15 cans of Canadian beer. She was denied service. She returned to the cash three times. She was told that police would be called.

[9] Ms. Beaulieu left the Beer Store but Ms. Marshall followed her outside. Ms. Marshall told her three or four times not to drive. Ms. Marshall testified that Ms. Beaulieu sat in her vehicle for five to ten minutes then drove away.

[10] According to Ms. Marshall as Ms. Beaulieu drove away, she almost hit two parked vehicles. Ms. Marshall called 9-1-1. She also stated that Ms. Beaulieu accessed the main highway through the general mall parking lot. She said that Ms. Beaulieu drove onto Highway 69 from the parking lot without stopping at which time she could hear the sound of squealing tires leaving the inference that Ms. Beaulieu interfered with moving traffic upon accessing the intersection.

[11] Ms. Marshall presented as a strong witness. She demonstrated good recollection. She did not deviate from her observations and she responded effectively to questions posed in cross-examination.

[12] The court has little difficulty in relying on the observations made by Ms. Marshall. She has occupied her job for about 12 years. At one point she stated that she had called police many times before but had never quite encountered a situation as bad as this. She stated that in her opinion, Ms. Beaulieu was intoxicated.

3.3 Constable Shawn Rainville

[13] Constable Rainville received a call from dispatch at 11:58 a.m. The call made reference to an erratic driver leaving the Beer Store in a cream-coloured Toyota vehicle bearing Ontario marker GUYBOU. The vehicle was reported heading westbound on Municipal Road 80 toward Dominion Drive.

[14] Constable Rainville spotted the vehicle and followed it as it made a very wide right hand turn onto Dominion Drive from Municipal Road 80. After making the wide turn, the vehicle continued driving in the opposite lane for approximately 10 seconds. The cruiser lights and siren had been activated. The vehicle accessed its proper lane then pulled over onto the gravel shoulder.

[15] Constable Rainville approached the driver's door. Ms. Beaulieu did not lower the window. She remained staring straight ahead. Officer Rainville thinks that he tried to get her attention. Ultimately he opened the car door. He said he could smell alcohol from inside the vehicle and from Ms. Beaulieu's breath. Her lips and tongue were coloured as if stained from dry red wine. Her speech was slurred and to use the officer's expression, she was "staring off into space".

[16] Constable Rainville also testified that Ms. Beaulieu fumbled for her driver's license in her wallet. She was unsteady upon exiting her vehicle and had to use it for balance. He stated that he was not sure whether she was going to fall over. He also indicated that she admitted taking a sleeping pill at 9:30 that morning and that her last drink was consumed at 11:00 p.m. the night before.

[17] Constable Rainville did not make an approved roadside screening demand nor did he conduct field sobriety testing. On the basis of his observations and what he referred to as "the totality of the circumstances" he formed the opinion that Ms. Beaulieu's ability to have the care and control of a motor vehicle was impaired by alcohol and he made a breathalyser demand. He arrested her at 12:08 p.m.

[18] Constable Rainville provided specifics in terms of timing touching upon the investigation. His evidence also disclosed times at which certain events occurred including the following:

• At 12:30 p.m. rights to counsel were provided;
• At 12:11 p.m. the breathalyser demand was read;
• At 12:16 p.m. Ms. Beaulieu was transported to headquarters;
• At 12:37 p.m. they arrived at headquarters on Brady Street;
• Between 12:48 and 13:06 p.m. efforts made to contact counsel;
• At 13:12 p.m. Ms. Beaulieu spoke to counsel in private;
• At 13:29 p.m. Officer Rainville provided his grounds to Constable Hinds in the breathalyzer room;
• At 13:46 p.m. Constable Hinds advised that he had obtained a reading of 36 milligrams of alcohol in 100 millilitres of blood. He advised Officer Rainville that he would be testing for drugs;
• At 15:17 p.m. Ms. Beaulieu was returned to Officer Rainville's custody.

[19] After Ms. Beaulieu was returned to Officer Rainville's custody, Staff Sergeant Waugh asked EMS to check up on her. They transported her to hospital. After she was seen at the Emergency Department of the hospital, she was released at 17:50 p.m. on a promise to appear by Constable Gagnon.

3.4 Constable Alain Gagnon

[20] Constable Gagnon described the 11:58 a.m. dispatch call as relating to a complaint about an erratic or impaired driver. He was patrolling the same area and attended at the location where Constable Rainville had already stopped Ms. Beaulieu.

[21] Upon his arrival, Ms. Beaulieu was sitting in the back seat of Constable Rainville's cruiser. The cruiser door was opened. In terms of his initial observations he stated that "she had the 100 yard stare", glossy eyes and purple lips. He could also detect the smell of alcohol as he leaned into the vehicle. He indicated that she was slow in her movements and that she spoke slowly and deliberately. He had difficulty in understanding her due to her slow speech.

[22] In response to questions posed by Constable Gagnon, Ms. Beaulieu said that she drank the night before and had taken a sleeping pill at 9:30 a.m. that morning.

[23] Constable Gagnon was present when Constable Rainville arrested and cautioned Ms. Beaulieu. This was done soon after or commensurate with his arrival. He remained at the scene after Constable Rainville left to take Ms. Beaulieu to headquarters. He made inquiries about the vehicle, license plates, prepared documents and made arrangements for towing.

[24] Constable Gagnon returned to headquarters at 2:00 p.m. He said somebody was to be with Ms. Beaulieu at all times. At some point after his arrival he sat with her and they spoke as he was starting to prepare the release documents. She told him that she had taken two separate types of pills namely a sleeping pill and one used for depression. It was Constable Gagnon's impression that Ms. Beaulieu seemed unsure as to how many pills were actually taken.

[25] Constable Gagnon was asked in cross-examination whether as a result of speaking with Ms. Beaulieu he had gathered more evidence. He responded by saying that the main purpose in sitting with her was not to gather evidence. He said he was trying to make sure everything was done right. He also mentioned that he felt that the information she was providing was more relevant to the issue of her "well-being".

[26] Constable Gagnon gave evidence touching upon Ms. Beaulieu having been brought to hospital by EMS. According to him, this was done for precautionary reasons. He attended at the hospital. After Ms. Beaulieu was seen by the physician on call, he proceeded to release her on a promise to appear.

[27] Constable Gagnon testified about the location of the Beer Store, the general configuration of the adjacent parking lot and its exit onto Regional Road 80.

3.5 Constable Andrew Hinds

[28] Constable Hinds received a call at 12:38 p.m. requesting that he attend at the station to conduct breathalyser testing. He arrived at 12:59 p.m. and at 13:02 p.m. he was present in the breathalyser room preparing the Intoxilizer 8000C for testing.

[29] Constable Hinds is a qualified breathalyser technician. He is also a qualified drug recognition expert ("DRE"). After performing all necessary warm up and relevant quality assurance tests, Constable Hinds was satisfied that the Intoxilizer 8000C was functioning properly. He was introduced to Ms. Beaulieu at 13:30 p.m. at which time Constable Rainville provided him with grounds for arrest. At 13:36 p.m. Constable Hinds provided Ms. Beaulieu with a caution. She said she understood. At 13:37 p.m. he provided her with a secondary caution. He also testified that at no time did Ms. Beaulieu indicate that she was not satisfied with advice received from counsel or that she wished again to speak with counsel.

[30] Constable Hinds described Ms. Beaulieu as being lethargic and moving slowly; her speech was slurred and she was almost falling asleep. He said that her coordination was slow and that she was unbalanced. Her eyes were reddened and he could detect the smell of alcohol on her breath.

[31] At 13:38 p.m. Constable Hinds provided Ms. Beaulieu with her rights to counsel and also made a breath demand. She said she understood.

[32] Constable Hinds explained the breathalyser process to Ms. Beaulieu. She ultimately provided a satisfactory sample of her breath directly into the instrument. A reading of 36 milligrams of alcohol in 100 millilitres of her blood was obtained. This reading was obtained between 1:45 and 1:50 p.m.

[33] Upon obtaining this low reading, Constable Hinds formed the opinion that Ms. Beaulieu was impaired by something other than alcohol. He based his opinion on the grounds provided to him by Constable Rainville and also on his own observations. At 1:50 p.m., he issued a standardized field sobriety test demand.

[34] Constable Hinds explained that drug evaluation testing is comprised of a 12-step program established by the regulations under the Criminal Code. This testing is to assist in forming an opinion on whether or not the subject under investigation is impaired by a drug (or drugs) while operating or having control of a motor vehicle.

[35] The following documentation was referenced by Constable Hinds when providing his evidence:

1. Standardized field sobriety test worksheet;
2. Drug influence evaluation;
3. DRE, 12-step and chart;
4. Drug recognition evaluation log.

[36] The first of the twelve steps refers to the breath alcohol test. This was confirmed at 36 milligrams of alcohol in 100 millilitres of blood. The next step refers to an interview with the arresting officer. According to the Crown this was completed when Officer Hinds met with Constable Rainville at which time Constable Rainville outlined the grounds for arrest. The third step refers to a preliminary examination which involves talking to the accused person and completing a drug influence evaluation form.

[37] Further to the above, the following series of tests are conducted:

a) Examination of the pupil size;

b) Eye examination which consists of the "horizontal gaze nystagmus" test and the "vertical gaze nystagmus" test;

c) A series of physical coordination tests which consists of the "Romberg balance test", the "walk and turn" test, the "one-leg stand" test, the "finger to nose test", and;

d) An examination which consists of measuring blood pressure, body temperature, pulse, pupil size under various light levels, an examination of muscle tone and a visual examination of the arms, neck and legs for evidence of injection sites.

[38] Notations of responses to the testing are noted on the drug influence evaluation form. Constable Hinds provided detailed evidence with reference to each test or step performed. It was Constable Hinds' opinion that although Ms. Beaulieu did not perform poorly on all testing, her overall performance was markedly poor. In addition he placed weight on the fact that her muscle tone was flaccid, her blood pressure was low and her pulse was low.

[39] Constable Hinds found that there were reasonable and probable grounds to believe that Ms. Beaulieu's ability to operate a motor vehicle was impaired by drugs. He stated that his finding was based on the totality of everything namely, his observations and all of the testing.

[40] At 15:08 p.m. Constable Hinds made a formal demand for a urine sample pursuant to section 254(3.4). Ms. Beaulieu complied and the sample was sent for analysis to the Centre of Forensic Sciences.

3.6 James Rajotte

[41] James Rajotte was called as an expert witness. He is a toxologist. He was qualified as capable of giving expert opinion evidence in the area of the detection of drugs and alcohol in the body and the effect on the body of both substances in isolation and together.

[42] Mr. Rajotte is employed at the Centre of Forensic Sciences. He works at the Northern Regional Laboratory located at Sault Ste. Marie. He has testified on fifty (50) occasions including his testimony provided in this case.

[43] Mr. Rajotte prepared a report dated July 25, 2014. The report was entered as an exhibit. He confirmed in his report that from the urine sample provided by Ms. Beaulieu, a number of drugs were detected in her system. He gave a brief description of seven (7) different drugs found in her system together with the reason for which each drug is prescribed and the general effect of each drug on the body.

[44] In his report, Mr. Rajotte provided the following caveat:

"The detection of a drug/metabolite in a urine sample is indicative of prior drug exposure or administration. Urine findings cannot be used to determine the effects, including impairment, of a drug on an individual at a given time, since they do not necessarily mean that at the time of the incident there was a blood concentration of a drug, or drug effects."

[45] Mr. Rajotte was questioned about Ms. Beaulieu's blood alcohol reading. He was able to project that at the time she was operating her vehicle, she would have had between 30 and 65 milligrams of alcohol in 100 millilitres of her blood.

[46] It was Mr. Rajotte's general view that anyone with 50 milligrams of alcohol per 100 millilitres of blood or more in their system may be considered impaired. Mr. Rajotte was advised that the drugs found to be present in Ms. Beaulieu's system were known as prescription drugs and intended to be taken in pill form. Mr. Rajotte also indicated that the drugs found in Ms. Beaulieu's system were depressant in nature with capacity to involve sedation.

[47] Mr. Rajotte testified that the drug Temazepam is a drug prescribed for the treatment of insomnia. It is commonly known as a sleeping pill. He testified that this drug should be taken at night time before bed. The maximal effectiveness of this drug is expected within the first three (3) hours. Mr. Rajotte was responding to questioned posed by the Crown because Ms. Beaulieu had indicated she took a sleeping pill at 9:30 a.m. in which case the timing of the pill's effectiveness would have coincided with the approximate time of her arrest.

[48] Mr. Rajotte provided many guarded answers to questions posed about drugs. This, in large part, is because of a host of variables which may be present in any individual case where persons have ingested drugs. Mr. Rajotte in a general way was able to indicate that alcohol can also produce depressant action and that mixing alcohol and drugs would be something that could lead to possible increased sedation.

[49] The drugs that were detected in Ms. Beaulieu's urine sample are the following:

• 7-aminoclonazepam
• Citalopram
• Conazepam
• Gabapentin
• Olanzapine
• Oxazepam
• Temazepam

In addition, the urine sample she provided disclosed 48 milligrams of Ethanol in 100 millilitres of her blood.

4: ANALYSIS

4.1 Charter Issues — Did the investigating officer have reasonable and probable grounds to make a demand under section 254(3) of the Criminal Code?

[50] The existence of reasonable grounds to make a section 254(3) demand is both a statutory and constitutional pre-condition. The onus is on the Crown to prove that the officer had reasonable and probable grounds to make the demand.

[51] As indicated in the seminal decision of R. v. Shepherd decided by the Supreme Court in 2009, the investigating officer need not have anything more than reasonable and probable grounds. He need not demonstrate a prima faciae case for conviction. What is required is simply that the facts as found be sufficient objectively to support the officer's subjective belief that the motorist under investigation was driving while his or her ability to do so was impaired, even to a slight degree, by alcohol. The test is not an overly onerous one.

[52] In the earlier decision of R. v. Bernshaw decided by the Supreme Court in 1994, the court indicated that the test is not objective in the sense that the court looks over the shoulder of the officer to see whether or not the circumstances were factual. What is intended is that the court weigh the grounds that the officer understood to be present in terms of their reasonableness and probability.

[53] It has been held by the decision of R. v. Censoni decided by the Supreme Court in 2001 that judicial scrutiny of reasonable grounds for a breath demand must recognize the context within which police officers discharge their duties. Police officers must often make quick but informed decisions in impaired driving investigations. They frequently must make decisions based on available information which is often less than exact or complete. What must be measured are the facts as understood by the police officer when the belief as to the existence of reasonable and probable grounds was formed.

[54] It must also be remembered that hearsay can contributed to establishing reasonable grounds including preliminary-type information heard by the officer over the police radio system.

[55] In this case Officer Rainville proceeded in response to a radio communication made further to a 9-1-1 call placed by Charmain Marshall. This provided some context to Constable Rainville who then scouted the area and kept an eye out for the vehicle which was described.

[56] Constable Rainville was aware that dispatch had received information in reference to an erratic driver leaving the Beer Store. Because he was aware of the general location of the vehicle described, it did not take him very long to locate it.

[57] As he approached and followed Ms. Beaulieu's vehicle, Constable Rainville noticed it to make a very wide right turn onto Dominion Drive from Municipal Road 80. Her vehicle then continued in the opposite lane for about 10 seconds before pulling over.

[58] After stopping Ms. Beaulieu, Office Rainville could not get her immediate attention. She remained still in her vehicle staring straight ahead. He had to open her door. When he did so, he could smell alcohol from inside the vehicle and from her breath. Her lips and tongue were red as if stained from dry wine. Her speech was slow and slurred. Her eyes were glossy. She fumbled for her driver's licence. He noted she was unsteady on her feet when she exited the vehicle and had to use the vehicle for balance. He indicated that at one point he was not sure whether Ms. Beaulieu was going to fall over. He indicated that Ms. Beaulieu admitted to drinking the night before and having taken a sleeping pill at 9:30 that morning.

[59] Constable Rainville was well-versed on the distinction between a mere suspicion and reasonable and probable grounds. He stated that he would have made an ASD demand had he only had suspicion that Ms. Beaulieu had alcohol in her body. Because of the totality of his observations, Constable Rainville said that he felt he had reasonable and probable grounds to make a breathalyser demand.

[60] Defence counsel pointed out that Constable Rainville appears to have formed his grounds within a tight two-minute time frame. She indicated that the evidence disclosed that Ms. Beaulieu was stopped at 12:06 p.m. and arrested at 12:08 p.m.

[61] The court is mindful that recording time as an investigation unfolds may be a difficult art to master. Notwithstanding the apparent tight time frame, I find that there is no reason to discount the veracity of Constable Rainville's observations. Indeed his observations relevant to Ms. Beaulieu state of sobriety (or lack thereof) are no inconsistent with those made by Ms. Marshall. She had more time to make her observations. She was concerned enough to follow Ms. Beaulieu outside. She was of the opinion that Ms. Beaulieu was intoxicated. She followed Ms. Beaulieu outside in order dissuade Ms. Beaulieu from driving.

[62] Although defence counsel highlighted the discrepancies in the evidence given by Constable Rainville and Constable Gagnon, I am satisfied on the whole that their observations are equally telling in terms of symptoms displayed by Ms. Beaulieu relevant to her state of sobriety.

[63] In determining whether reasonable grounds existed, Officer Rainville appears to have taken into account all information available to him. This would include information from dispatch. This would also include following Ms. Beaulieu's vehicle. Further observations were made between the time her vehicle was stopped and the arrest. The evidence taken as a whole supports the theory that Officer Rainville arrived at his decision to make a breathalyser demand within a brief space of time. Nonetheless, given the consistent features of his own observations, I am satisfied that the evidence from an objective viewpoint supports the fact that Constable Rainville had reasonable grounds. I have also taken into account the context within which he discharged his duties and the fact that the test as referred to in the Shepherd decision is not an overly onerous one.

4.2 Charter Issue – Was the drug evaluation demand made forthwith or as soon as practicable and were there reasonable and probable grounds to make the demand?

[64] Defence counsel submits that the demand was not made as soon as practicable in accordance with section 254(2) of the Criminal Code.

[65] Constable Hinds advised Constable Rainville and he obtained a reading of 36 milligrams of alcohol in 100 millilitres of Ms. Beaulieu's blood at 1:46 p.m. It is clear from Officer Hinds' evidence that he did not take very long to re-act to the low breathalyser reading. Commensurately with becoming aware of the low reading, Officer Hinds told Constable Rainville that he would be testing for drugs.

[66] Constable Hinds testified that upon obtaining the low breathalyser reading, he formed the opinion that Ms. Beaulieu was also impaired by something other than alcohol. He specifically confirmed that he arrived at this opinion because of Constable Rainville's grounds and his own observations. He said that he believed alcohol was on board in her system, however, was not confident that it was the sole source of all her symptoms.

[67] In terms of Constable Hinds' observations; he said that Ms. Beaulieu moved slowly, appeared to be lethargic and at times was almost falling asleep. She was co-operative but her co-ordination was slow. She appeared off balance. Her eyes were reddened and glassy. There was a smell of alcohol on her breath and her speech was slow and slurred. It was not in these circumstances unreasonable for Constable Hinds to proceed as he did.

[68] Defence counsel referred to the decision of R. v. Catling decided in 2008. In that decision, Justice Allen conducted a thorough review of the case law regarding the meaning of terms "forthwith" and "as soon as practicable" as used in relation to driving investigations. He concluded that the phrase means "within a reasonably prompt time in the circumstances". He stated that the whole chain of events must be considered and that the Crown is not required to account for every minute.

[69] It is defence counsel's argument that Constable Hinds should have made the demand at the exact time that he formed his opinion and not four (4) minutes later at 1:50 p.m. In defence counsel's view, the cumulative effect of the four minute delay constitutes a flagrant breach.

[70] Interwoven in the position taken by defence counsel is that had Constable Rainville chosen to use the ASD at the outset it would have become clear to him that alcohol was not the only factor. Hence he would have made the proper demand right away. In other words the investigation relating to impairment by drug(s) would have proceeded much quicker.

[71] Defence counsel also advanced the argument that the entirety of the investigation should have stopped immediately once the low breath result was obtained because there were no additional discernable signs of impairment observed. It was not reasonable in her argument for Officer Hinds to simply form a belief that Ms. Beaulieu was impaired by drug(s) solely because the signs of impairment were greater than the small amount of alcohol in her blood would be expected to generate.

[72] In this case it cannot be said that the drug evaluation demand flows from the spoils of an unlawful breathalyser demand. I have already concluded that Constable Rainville had reasonable and probable grounds to make the breathalyser demand. In consequence, I must consider any argument based on circumstances which may have existed had Constable Rainville chosen to make an ASD demand to be unhelpfully speculative.

[73] The absence of new or different signs of impairment at the time Constable Hinds obtained the low reading is certainly on these facts not determinative. When the low reading was obtained it was not unreasonable for Officer Hinds to readjust his focus. He had the full benefit and was able to rely upon Constable Rainville's remarks as well as his own uninterrupted observations. Although not the most experienced of officers, Constable Hinds is certainly not a novice. He has six (6) years' experience and has been involved in approximately 35 cases involving impaired driving charges. He is both a breathalyser technician and an evaluating officer qualified to conduct evaluations under subsection (3.1). This may only have been Constable Hinds' second case as an evaluating officer. I am satisfied that he was fully qualified under the regulations to conduct evaluations. He was patient and thorough in his dealings with Ms. Beaulieu. He had an excellent understanding of what was required to complete his evaluation.

[74] In essence I am satisfied that Constable Hinds considered all relevant circumstances touching upon Ms. Beaulieu's state of sobriety (or lack thereof) including his own observations and information imparted to him by Constable Rainville. In doing so, he was able to arrive at a conclusion that he had reasonable grounds to believe that Ms. Beaulieu was committing an offence contrary to section 253(1)(a) as a result of the consumption of a drug (or a combination of alcohol and a drug).

[75] Constable Hinds was made aware by Ms. Beaulieu that she had consumed drugs. He said that she spoke of having taken Cyprolex (1 pill) and Temazepan (30 miligrams) at her home at 10:00 p.m. In considering all information at his disposal, he said he was confident that Ms. Beaulieu was impaired by drug(s) while operating her motor vehicle. He proceeded in accordance with subsection (3.4) to make a demand that she provide a urine sample. She complied. In terms of reasonable grounds to make that demand he referred to the totality of the circumstances. He also verbally listed evaluation findings he took into account.

[76] There was no appreciable delay in making the demand on these facts. There was a modest four (4) minute gap between the time that Constable Hinds became aware of the low reading and the time that he made the demand. It is difficult here to assume that even on its face, the delay is unreasonable. The passage of four (4) minutes may from a practical viewpoint be attributed to a host of possible legitimate factors including something as simple as a brief pause and time to reflect. I do not, on these facts, find that it can be safely determined that the demand was not made "forthwith" or "as soon as practicable". The evidence does not support a finding that the demand was not made as soon as practicable (or forthwith) or that any objectionable delay existed in carrying out the demand (or either demands). No Charter provision or statutory requirement was breached by virtue of either concept namely "forthwith" or "as soon as practicable" being transgressed.

[77] It should be noted in the context of her Charter argument, counsel for the defence conceded that if the breach were to be found on this issue it would not be so serious to warrant an exclusion of the evidence. In her submission, it would be useful for the court to take the breach into account when considering the impact of "other" breaches (if found). Defence counsel describes this as the "domino effect".

4.3 Charter Issue – Were Ms. Beaulieu's rights set out in sections 10(a) and 10(b) of the Charter infringed?

[78] I have had some difficulty in capturing the main framework of defence counsel's position on this front:

• In her factum, defence counsel indicated that Constable Hinds commenced a new investigation after obtaining the low reading and failed to advise Ms. Beaulieu of the new jeopardy she faced;

• In her written submissions (which the court used as a guide in following her oral presentation), defence counsel raised the issue of Constable Gagnon sitting beside Ms. Beaulieu and speaking with her at the police station. In her submission, it was improper for Constable Gagnon to question her client while in custody without a caution or further rights to counsel;

• In oral submissions, defence counsel highlighted discrepancies in the evidence of Constable Rainville and Constable Gagnon particularly at the time of Ms. Beaulieu's arrest. Defence counsel indicated that according to Constable Rainville, Ms. Beaulieu was arrested on the spot. According to Constable Gagnon she was sitting in the police cruiser upon his arrival and had not yet been arrested. In defence counsel's submission, Ms. Beaulieu was not under arrest but being detained. She submitted that her client, while being detained, would have felt obligated to answer any questions posed in circumstances where she would not have been advised of being under investigation for impaired driving.

[79] Constable Rainville received the dispatch call at 11:58 a.m. He stopped Ms. Beaulieu's vehicle after having followed it for a short distance at 12:06 p.m. He placed her under arrest at 12:08 p.m. He proceeded with her right to counsel and caution after she was out of the vehicle at 12:10 p.m. The breathalyser demand was made at 12:11 p.m.

[80] Constable Rainville also testified that Ms. Beaulieu had exited her vehicle before being arrested. He then stated that as she walked to the police cruiser, she was unsteady and almost fell. At that point he indicated that Constable Gagnon arrived. He then said he advised her she was under arrest for impaired.

[81] Constable Gagnon testified that he heard the dispatch call at 11:58 a.m. namely the same time it was heard by Constable Rainville. He went directly to the scene where she was stopped. He saw that Ms. Beaulieu was sitting in the back seat of Constable Rainville's cruiser. He made observations of her symptoms. He spoke with her. She said that she had been drinking the night before and that she had taken a sleeping pill that morning at 9:30 a.m.

[82] It is also important to note that Constable Gagnon said that within one minute of his arrival or very soon thereafter, Ms. Beaulieu was arrested by Constable Rainville.

[83] As is often the case, the evidence of the two officers is not perfectly in sync. For the most part, however, I do not find that their evidence is remarkably dissimilar both in terms of timing and content. It may be that Ms. Beaulieu had just sat in the cruiser as Constable Gagnon arrived. If so, she had only been there for a very brief time because Constable Rainville, whose evidence I also accept, had just commenced his investigation. He had either just placed her under arrest or was about to do so. This is not inconsistent with Constable Gagnon's evidence that he arrived at or about the same time. It is possible that she was placed under arrest just prior to the time she sat in the cruiser. It is possible that she was placed under arrest just after she sat in the cruiser. At or about the time that Ms. Beaulieu was being placed under arrest Constable Gagnon arrived. The general gist of the scenario relating to Ms. Beaulieu's arrest does not raise red flags in terms of delay or detention. I am satisfied that she was promptly informed of the reason for her arrest or detention and that she was provided with her right to counsel without delay.

[84] Constable Gagnon did testify that later that afternoon when he returned to headquarters he sat with Ms. Beaulieu for a while and spoke with her. The evidence is clear that he returned to headquarters at 2:00 p.m. Constable Hinds had already obtained the low breathalyser reading. This was completed at 1:46 p.m. He issued the field sobriety test demand at 1:50 p.m. After conducting testing in his capacity as a drug evaluation officer, he returned Ms. Beaulieu to Constable Rainville's custody at 3:17 p.m.

[85] Constable Gagnon testified he felt that Ms. Gagnon ought not be left alone. His purpose for sitting next to her was not to pose questions. It appears in part that Officer Gagnon acted out of courtesy in keeping Ms. Beaulieu company and at the same time checking up on her well-being.

[86] The evidence does not disclose that anything told to Officer Gagnon by Ms. Beaulieu as they sat together was pivotal to the investigation.

[87] Ms. Beaulieu did advise Constable Gagnon that she had taken medication (or pills). To his mind she did not seem to know exactly how many. Constable Gagnon said that any decision about her release or attendance at hospital (by EMS) was up to the officer in charge. Constable Gagnon testified that as he sat with Ms. Beaulieu he was preparing release documents. All indications are that anything Ms. Beaulieu told Constable Gagnon at that time was more geared to the issue of her release. There is no reason in the circumstances to not accept Constable Gagnon's evidence in sitting with Ms. Beaulieu he was simply "trying to make sure that everything was done right".

[88] It is also important to note that the main thrust of the investigation was completed by the time Constable Gagnon engaged in speaking with Ms. Beaulieu. I do not, in considering the flavour of the circumstances relating to Constable Gagnon's conduct, find that it would have been necessary for him to re-issue a caution or rights to counsel.

[89] Not much time need be spent on the issue of whether Ms. Beaulieu ought to have been provided with a further right to counsel or additional reasons for her arrest because of any change of jeopardy.

[90] There was no obligation on Constable Hinds to re-advise Ms. Beaulieu after the investigation became drug-focused. On this point I agree with submissions of Crown counsel that Ms. Beaulieu did not face "new" charges. She was being investigated for the same offence namely that of impaired driving under section 253 of the Criminal Code. There was no shift to a greater legal consequence and accordingly no shift in jeopardy.

[91] I do agree with Justice Block's reasoning in the decision of R. v. Wilkinson 2014 ONCJ 515 decided October 3, 2014. In that decision Justice Block held that the duty to re-advise an accused of their right to counsel because of change of jeopardy arises when the suspect is facing a different and more serious crime than at the time of the initial advice. He went on to indicate that there is no meaningful or substantial difference in criminal jeopardy between the different ways a person may commit the offence of impaired driving.

[92] Moreover there is no obligation on police to re-advise an accused person of his or her right to counsel in an impaired driving investigation even when the investigation turns to a demand for body fluids. On this point I would rely on the decision of R. v. Fogarty 2014 NSCA 89 decided by the Nova Scotia Court of Appeal in December 2014. In that case the police did not afford Mr. Fogarty an opportunity to re-consult counsel before a blood test was taken after drug evaluation testing had been completed. The court held that the trial judge was entitled to assume that Mr. Fogarty received competent legal advice before the DRE. The wording of section 254(3.1) and 254(3.4) makes it clear that the DRE may culminate in a fluids demand. The court went on to conclude that competent counsel would expect that a failed DRE would likely trigger a demand for bodily fluids under section 254(3.4) and would advise the client of that eventuality.

[93] I am satisfied on the totality that Ms. Beaulieu was informed promptly of the reasons for her arrest or detention. She received rights to counsel initially by Constable Rainville at 12:10 p.m. Subsequently, she was provided with rights to counsel by Constable Hinds on two occasions namely at 1:30 p.m. and at 2:13 p.m. Further and of importance is the fact that by the time Ms. Beaulieu was seen by Officer Hinds, she had already spoken to counsel. Ms. Beaulieu's rights set out in sections 10(a) and 10(b) of the Charter were not infringed.

4.4 Reasonable Doubt – Mens Rea

[94] Factors that the court must consider where impairment in the ability to drive is alleged may vary from case to case. The Crown is not required to prove any specific level of impairment. Evidence that establishes any level of impairment in the ability to drive caused by alcohol or drug(s) (or a combination thereof) is sufficient proof of the offence. In R. v. Stellato, [1993] O.J. No. 18, the court specifically rejected the assertion that section 253(1)(a) required proof of a marked level of impairment. The court may draw inferences from circumstances that are not marked departures from the norm but any inference must be reasonable. Also, an inference that an accused's ability to drive is impaired may reasonably be drawn from conduct that exhibits a departure from the norm.

[95] I have, in these reasons, already referred to the evidence of Ms. Marshall, Constable Rainville, Constable Gagnon and Constable Hinds touching upon Ms. Beaulieu's state of sobriety (or lack thereof). They may have expressed themselves differently but in the larger picture their evidence was consistent and pointed in the same direction, namely that Ms. Beaulieu was not sober when observed. I have no reason to discount the reliability of these three witnesses. Although their evidence was not perfect and may have in minor respects raised discrepancies, they each did their best to testify in a credible and straightforward manner.

[96] There is no evidence that Ms. Beaulieu did not voluntarily ingest alcohol or drug(s) as found to exist in her system. Both counsel are ad idem on the state of the law as pronounced in the seminal decision of R. v. King, [1962] S.C.R. 746 decided by the Supreme Court of Canada. Essentially, the mental element in the offence of impaired driving is self-induced intoxication resulting in impairment of an accused person's ability to operate a motor vehicle. Self-induced intoxication involves voluntary ingestion of alcohol or drugs. The following is stated in the King decision:

"…a man who becomes impaired as the result of taking a drug on medical advice without knowing its effect cannot escape liability if he became aware of his impaired condition before he started to drive his car just as a man who did not appreciate his impaired condition when he started to drive cannot escape liability on the ground that his lack of appreciation was brought about by voluntary consumption of liquor or drug."

[97] In terms of ingesting the drug(s), Ms. Beaulieu was taking pills in prescription form. She knew that she had taken a pill at about 9:30 a.m. She described the pill as a "sleeping pill". She did not testify but inherent in her reference to a "sleeping pill" (as well as several other pills during the currency of her testimony) is that she was not unaware of the use or reason(s) for taking a prescribed drug (or drugs). The number of drugs found in her system as listed in the toxologist report remains a relevant factor on this point.

[98] There is a rebuttable presumption that Ms. Beaulieu's condition was voluntarily induced. There is no evidence before the court sufficient to raise a reasonable doubt as to whether Ms. Beaulieu was, through no fault of her own, disabled when she undertook to drive and drove, from being able to appreciate and know that she was or might become impaired from the consumption of alcohol or drug(s) or a combination of both.

[99] On these facts I cannot accede to defence counsel's suggestion that Ms. Beaulieu was not aware of the effects of ingesting a drug or drugs. To do so would be to engage in speculation. Simply put, there is no evidence sufficient to support such a finding. I also must disagree with defence counsel's suggestion that the Crown must establish that Ms. Beaulieu knew what the effect of medication was. This is not a state of the law.

[100] Having regard to Ms. Beaulieu's conduct at the Beer Store, Ms. Marshall's evidence about her exit from the parking lot, Constable Rainville's observations of her driving, Constable Rainville and Constable Gagnon's observations of her demeanour and symptoms at roadside, Officer Hinds' observations of her symptoms, the drug recognition assessment including its intensive tests undertaken under the twelve-step protocol, the toxologist's evidence, the breathalyser reading, the toxologist's report and Ms. Beaulieu's admissions, I find that the Crown has proven the impaired charge on the criminal standard of proof beyond a reasonable doubt.

[101] On a final note, there was mention by defence counsel about the wording of the information. The information alleges that on or about the 9th day of May, 2014 Ms. Beaulieu's ability to operate a motor vehicle was impaired by alcohol or a drug when she had the care of a motor vehicle. In order to prove the case the Crown must show that impairment is due to alcohol or a drug. Symptoms of impairment that are not proved to be a result of the consumption of a drug or alcohol are not sufficient. Reference, however, to impairment by alcohol or a drug in paragraph 1(a) includes impairment by a combination of alcohol and a drug. It is my conclusion that both the consumption of alcohol and drug (or drugs) were contributing factors to Ms. Beaulieu's impairment.

5: DECISION

[102] For the above reasons there shall be a finding of guilt.

Released: June 8, 2015

Signed: "Justice Randall W. Lalande"