COURT FILE AND PARTIES

Court File No.: City of St. Catharines S12-2628

Date: 2015-07-20

Ontario Court of Justice

Between:

Her Majesty the Queen

— And —

Catherine Edgecombe

Before: Justice Stephen D. Brown

Heard on: May 28, 29, October 7, 8, 9, 10, 2014

Written Submissions received by the defence: December 18, 2014

Written Submissions received by the Crown: January 20, 2015

Reasons for Judgment released on: July 20, 2015

Counsel:

Danielle Garbaty, for the Crown

Angelo Fazari, for the accused Catherine Edgecombe

BROWN, J.:

1: INTRODUCTION

[1] The defendant is charged that on or about June 26, 2012 at the City of St. Catharines did, while her ability to operate a motor vehicle was impaired by alcohol, operate a motor vehicle contrary to s. 253(1)(a) of the Criminal Code, as well as operating a motor vehicle with greater than 80 mgs of alcohol in 100 mLs of blood contrary to s. 253(1)(b) of the Criminal Code.

[2] At the time of her arrest she was a police sergeant with the Niagara Regional Police Service and a Qualified Intoxilyzer Technician. This both helps her and hurts her. It should not, but it does.

[3] It helps her because at the time of her arrest she was taken not to the closest police station, which would have been a Niagara Regional Police Station, but to the O.P.P. station in Niagara Falls. Thus, her counsel argues that the breath tests were not taken as soon as practicable, she was unknowingly videotaped using the washroom in the O.P.P. cells, the breath room video was not recorded and she was not allowed to consult with counsel in private, all of which would not have occurred had she been taken to the nearest police station to do her breath tests.

[4] It hurts her because the opinions on impairment given by the officers in this case have a special allure because, unlike in most cases where they arrest an accused for impaired operation, they knew her well, worked with her and could compare her comportment and speech and actions the evening of the arrest to the person they knew as a well-regarded police sergeant.

[5] As the Crown states in their written submissions, it is rare to have the type of evidence that we have in this case – where multiple police witnesses are known personally to the accused and were therefore able to compare the defendant's normal sober state to that observed on the night in question.

[6] Both Mr. Fazari and Ms. Garbaty provided written submissions on this matter at their request.

[7] As such, I intended to rely heavily on the evidentiary summary submitted by both counsel in reviewing the evidence in this case. I intended to make the necessary modifications when I thought that counsel allowed arguments and submissions to creep into their summary of the facts or when evidence has been misstated. Where I believe that the evidence is accurately stated, I have reproduced it verbatim. Unfortunately, some of the evidence from the trial is inaccurately stated and not contested by the Crown, and that makes the whole point of written submissions an addition to my work required to write this judgment.

[8] I have, of course, reviewed my bench notes, all of the transcripts and the exhibits in this proceeding.

2: ISSUES BEFORE THE COURT

[9] The defendant seeks relief for alleged breaches of ss. 7, 8, 9 and 10(b) of the Charter. The trial proceeded by way of a blended voir dire on the Charter issues and the trial proper.

3: THE EVIDENCE AT TRIAL

Itayi Nyaundi

[10] Itayi Nyaundi originally testified that, on the night of Tuesday, June 26, 2014, he was riding a Yamaha R1 motorcycle. He was not sure of the year of the bike, but it was either a 2002 or 2003. He left his home in Niagara Falls close to 2:00 a.m. after several hours of studying for an upcoming examination. It was a warm, dry and clear evening. He was wearing a white and black motorcycle jacket that should have been quite visible to other drivers.

[11] He testified that he drove into St. Catharines and was driving around the streets, some of which he was unfamiliar with. He made a right turn onto Glenridge Avenue which he did know goes to Brock University. He testified that while driving between 40-50 kilometers per hour he noticed lights of a vehicle travelling behind him. He suddenly felt a sharp pain on his left shoulder and chest. He remembered being told to stay down by a voice that sounded female, a light in his eyes and then waking up in the hospital. Although he made statements to the paramedics at the scene of the accident, at trial he did not recall any such conversation.

[12] When he testified at trial, Itayi Nyaundi could not recall making the following statements which he made to the police:

• that he was in 5th or 6th gear,
• that he may have been waving to a couple on the sidewalk, and
• that he was stopped to turn left when he was hit from behind.

[13] It is to be noted, however, that he suffered an injury that resulted in his loss of consciousness and that perhaps his statements immediately after the accident were a consequence of those injuries.

[14] He disputed Mr. Fazari's suggestion that he was waving at people on the sidewalk before the collision, but said that you do not always have to have both hands on the motorcycle such as when you are signaling a turn or a stop with your hands. He as well disputed the suggestion that he was stopped to make a left turn, pointing out to counsel that the portion of Glenridge where the accident happened is an overpass.

[15] All in all, though I found him to be an honest and truthful witness, he does not really advance the Crown or defence case other than the undisputed fact that he was driving his motorcycle that evening and was struck from behind by a vehicle that caused him to recall little of the incident other than waking up in hospital later.

Abdulaziz Aldaghaim

[16] The witness Abdulaziz Aldaghaim testified that on June 26, 2012 he was sitting in his brother's apartment watching TV when he heard the sound of the crash. He went outside and observed a man lying on the ground with another person trying to help him. Mr. Aldaghaim stated that roughly 5 minutes elapsed from the time he heard the crash to the time he saw the person lying on the ground. When police arrived, he saw the lady standing on the left side of the truck next to the driver's door. He also testified that the police arrived approximately 10 minutes after he had heard the crash.

[17] Abdulaziz Aldaghaim further testified that when he arrived at the scene of the collision, he could not remember if the person helping the man on the ground was a woman or a man, but he suspected that it was a woman. He stated that this person dragged the man on the ground to the side of the road. He stated that five people were present at the scene, but he could not see if there was anyone else on the other side of the overpass.

[18] He further stated that he made the 911 call received by the 911 operator at 2:44 a.m. and that, since he had difficulty giving the location, he handed his cell phone to an occupant of a vehicle who arrived on the scene to give the location of the accident. When the police arrived, they asked him whether he had witnessed the accident. However, the police did not ask him what time he had arrived there or whether he knew who the driver of the truck was. The police told him to leave and no statement was taken from him at that time. On July 24, 2012, almost one month after the incident, police obtained a statement from Mr. Aldaghaim.

Selkirk Johnston

[19] Selkirk Johnston was a bartender working for the Merchant Ale House on June 26, 2012. He is an experienced bartender and has been doing that job for 11 years in total, 3 years at the Merchant House.

[20] He was interviewed by Sergeant Woods on July 24, 2012 approximately one month after the incident. Mr. Johnston testified in-Chief that the woman he had observed at the Merchant Ale House who came in at about 1:00 a.m. had drowsy eyes, slurring of words and looked tired, although he did not have a conversation with her.

[21] He described her as Spanish looking with brown skin and short dark hair, which fits the description of the defendant. He also said in direct examination that she was stumbling towards the end of the evening. He also testified that, during the course of the night, he only observed the female drinking beer out of a 14-ounce glass, but did not see when she left with a male. He thought the female was intoxicated, but did not call her a cab. He said he may have been upstairs when she left. During his police interview on July 24, 2012, he told Sergeant Woods the name of the other bartender working that night who had served the alcohol to the woman, but this individual did not testify at the trial. At no time did Selkirk Johnston serve the woman alcohol.

[22] In cross-examination, Selkirk Johnston acknowledged that when the woman arrived at the bar he did not notice her swaying or falling over. He observed her walking in the bar, but did not notice anything unusual about her walking until she approached the bar after she was there for some time. He agreed that he never told Sergeant Woods that the woman's eyes were drowsy. He stated that the woman had no more than two drinks while at the bar. He said that neither the woman nor her friend looked intoxicated when they came into the bar and that her male friend arrived approximately 10 minutes before she did.

[23] Mr. Johnston told Sergeant Woods that the woman, who was in the bar for approximately 45 minutes, only had a glass of beer which she did not finish. He thought she had an accent and a drunken slur. Mr. Johnston did not speak with the woman directly, but when she was talking to another individual at the bar Mr. Johnston thought she was mumbling which, he said, is the same as slurring. In addition, Mr. Johnston testified that there was nothing unusual that he noticed about the woman when she came into the bar, but he only thought that she was intoxicated when she came up to the bar and was talking to another individual named Steve who was a patron. He agreed that the woman could have been tired when she left the bar and it is possible that the woman finished her beer just before she left, although it appears that he was not watching her constantly while she was there.

[24] He stated that it was highly unlikely that she left the bar after 2:30 a.m., although he could not pinpoint the exact time that she did leave because he did not see her and her friend leave, but he thought it was around 2:15 a.m.

[25] The fact that Mr. Johnson had such a clear recollection of this individual when he was only interviewed almost one month after the event and would have served countless patrons during that interval gave me some cause for concern. Also, the point that he thought she had some accent (which she does not) also gives me some concern about his reliability; however, he did strike me as an honest, observant witness who was reliable for the most part. His evidence is corroborated to some degree from the evidence of the defendant which is discussed later in these reasons.

P.C. Kelly Dolynski

[26] Kelly Dolynski was a Scenes of Crime Officer who took photographs of the scene.

[27] She stated that the location of the truck and the motorcycle were at the crest of the road. She further testified that Photograph #5 (Exhibit 2J) depicts a white substance on the ground with debris around the truck. Although Mr. Fazari stated in his written submissions that the pictures show no overhead lighting, I note that Ms. Garbaty in her re-direct examination directed the officer's attention to photographs that do depict overhead lighting in the area of the collision.

[28] She confirmed that the road where the accident was located had a lot of cracks and had some defects (Photograph 41 and 43, Exhibits 2L, 2M, 2N, 2O, Photograph 1 Exhibit 1).

[29] She also testified that the photographs taken by her depict numerous cracks on the road, as well as a lip in the road going past the driver's passenger door (Exhibit 2P, Exhibit 2Q). She also stated that some of the cracks on the road and in the area of the accident were cracks with no tar put in to fill in the cracks (Exhibit 2R, 2S, 2T, 2U, 2V). Exhibits 2W and 2X depict the unevenness of the road and the cracks across the southbound lane. Exhibit 2Y depicts the cracks close to the location where the truck came to rest and also north of the truck.

P.C. Brian Noble

[30] Constable Noble had known the defendant since 1998 and had worked with her and knew her well.

[31] P.C. Noble testified that he was dispatched at 2:47 a.m. on June 26, 2012 and arrived at the scene at 2:50 a.m. Upon arrival, he noted the black Avalanche belonging to Sgt. Edgecombe. It was a distinctive vehicle with personalized plates that were "C EDGE" and he had seen her driving it numerous times in the past. He exited his vehicle and walked over to the first officer on the scene, P.C. Spano. He heard someone say, "Hi, Brian" and he looked to his left and noted Sgt. Edgecombe walking back towards the Avalanche. He asked her if she was okay, she responded that she was and then he commenced blocking off the scene. Sgt. Hughes showed up and spoke to Sgt. Edgecombe. P.C. Noble observed that Sgt. Edgecombe had a bit of difficulty standing, she was distraught and upset. He also noted a smell of alcohol on her breath, noticed her fumbling with her cell phone while she talked to someone and slurring her words slightly. He confirmed that the exchange lasted less than one minute before she was escorted off.

[32] He was asked by the Crown if, in terms of the observations about difficulty standing, fumbling with the cell phone and slurring words, this was the norm for Sgt. Edgecombe or was it different somehow. He replied, "This was not her normal state of being. She's a very put together person, a very straightforward person. And that was out of character for her."

[33] He also had remembered seeing the same vehicle parked outside the Merchant Ale House earlier in his shift, but there was no need at the time to make a note of that.

[34] In cross-examination, P.C. Noble testified that Sgt. Edgecombe was escorted from the Avalanche to Sgt. Hughes' vehicle which was parked a distance behind the Avalanche. P.C. Noble confirmed that he did not ask Sgt. Edgecombe whether she was the driver and confirmed that she did not tell him that she was the driver. P.C. Noble did not tell Sgt. Hughes that Sgt. Edgecombe had identified herself as the driver, nor did he tell Sgt. Hughes that Sgt. Edgecombe had told him that she was the driver. However, he did tell Sgt. Hughes that he "believed Edgecombe was involved in the collision". P.C. Noble went on to state that he only spoke with Sgt. Edgecombe for less than 10 seconds. P.C. Noble did observe that Sgt. Edgecombe was nervous, upset, stressed but cooperative.

[35] When he was asked at trial whether he ever told Sgt. Hughes that the Applicant was identified as the driver involved in the collision, P.C. Noble testified as follows: "I indicated I believe Edgecombe was involved in the collision" (p. 154, l. 5 & 30), "She never made a statement to me about being the driver" (p. 154, l. 5) and "I didn't know if she was the driver" (p. 5, l. 20). P.C. Noble again stated that he did not say anything to Sgt. Hughes about who the driver was because he "didn't know who the driver was." (p. 5, l. 30) P.C. Noble acknowledged that someone else could have been driving the vehicle involved in the collision (p. 157, l. 25).

P.C. Melissa Spano

[36] P.C. Melissa Spano of the NRP was dispatched at 2:47 a.m. and arrived at the scene of the collision at approximately 2:48 a.m. She observed a black Chevrolet Avalanche pickup truck with personalized license plate "C EDGE" (the "Truck"). P.C. Spano stopped her police vehicle behind this truck and walked up the hill. P.C. Spano was the first police officer to arrive at the scene of the collision. When she arrived at the scene, she asked who the driver of the truck was and all she heard was, "Hi Melissa." She then approached Sgt. Edgecombe, who immediately stated to her that she had been driving and that the motorcycle had stopped or slowed and she did not see him. P.C. Spano testified that she had no further conversations with Sgt. Edgecombe at that time and that her conversation with Sgt. Edgecombe lasted a few seconds.

[37] P.C. Spano testified that she did not tell P.C. Noble that the Applicant was the driver because "it wasn't a question, we both knew she was the driver." (p. 57, l. 25). However, P.C. Spano further explained that she told P.C. Noble that the Applicant was the driver based on the Applicant's statements to her. P.C. Spano testified that P.C. Noble would have known that the Applicant was the driver based on the information the Applicant provided to her (p. 58, l- 15).

[38] In cross-examination, P.C. Spano stated that she parked her vehicle directly behind the Avalanche. P.C. Spano testified that she was conducting an investigation pursuant to the Highway Traffic Act and that she knew what she was required to do by law. She spoke with the witnesses at the scene and all of them told her that they had not seen anything. P.C. Spano did not obtain the names of the persons she spoke with at the scene. P.C. Spano stated that Sgt. Edgecombe made a statement to her about being the driver, in response to P.C. Spano's question. P.C. Spano made no other observations of Sgt. Edgecombe, notwithstanding that she was a few feet away from her. P.C. Spano spoke with Sgt. Noble briefly and advised him that she had a brief conversation with Sgt. Edgecombe. According to P.C. Spano, she and Sgt. Noble had no other discussions. P.C. Spano confirmed that the road had cracks and damage. P.C. Spano was familiar with Section 199 of the Highway Traffic Act and the requirements of drivers involved in a collision, particularly the requirement to identify oneself as the driver. In addition, she confirmed that she told Sgt. Edgecombe to wait at the scene and not to leave. P.C. Spano had no conversations with Sgt. Hughes.

[39] P.C. Spano relied almost exclusively on the self-incriminatory statements of Sgt. Edgecombe to determine that Sgt. Edgecombe was the driver and then communicated that information to P.C. Noble. Although P.C. Spano detained Sgt. Edgecombe at the scene, she did not read her rights to counsel, nor did she inform her of the reason for the detention. According to P.C. Spano, no one is allowed to leave the scene of an accident.

P.C. Schonewille

[40] P.C. Schonewille testified that he specializes in the field of Collision Investigation and Reconstruction. However, prior to June 26, 2012 he had never investigated a collision involving a truck and a motorcycle. On June 26, 2012, he was paged to attend at Glenridge between Edgedale and Glendale for a vehicle collision. After completing his investigation, he concluded that the Avalanche was traveling 83 km/hour at the area of impact, but was unable to determine the speed of the motorcycle.

[41] In cross-examination, P.C. Schonewille stated that different roads have different coefficients of friction depending on the condition of the road. He also stated that at no time did he determine whether the ABS brakes on the Avalanche were in working order. P.C. Schonewille confirmed that to complete his report he relied on information the mechanic provided to him about the condition of the vehicles. (Exhibit #4)

[42] In cross-examination, P.C. Schonewille confirmed that the driver of the motorcycle advised him that he was in fifth or sixth gear travelling between 38 and 44 km/hour. P.C. Schonewille concluded that at the time of the collision the motorcycle was in fifth gear. He also acknowledged that a motorcycle that is in fifth gear in the city travelling at 60 km/hour could stall the engine, and that if the motorcycle was traveling at 44 km/hour in fifth gear it would stall and the vehicle behind it would collide with it.

[43] The motorcycle was taken to JNE Recovery by P.C. Schonewille and a report was prepared. P.C. Schonewille stated that the road was in good condition and he made no notes of any problems with the roadway. However, he did acknowledge that if the road was in very bad condition, it could be a contributing factor to the accident. He looked at the photographs in this case, but made no notes about any unevenness in the roadway. Again, he confirmed that the level of unevenness of a roadway could contribute to the collision.

[44] In his report, marked as Exhibit #4 at the trial, P.C. Schonewille concluded that "neither vehicle had a mechanical defect that caused or contributed to the collision." However, the report provided by his mechanic at JNE Recovery concludes that the motorcycle would not have passed safety. The mechanic stated in the report that he "found mechanical defects that may have caused or contributed to the accident." P.C. Schonewille's conclusion that both of the vehicles were in a good state of repair, and that both were mechanically sound, contradicts the findings of the report prepared by his own mechanic. Prior to completing his own report, P.C. Schonewille had no discussions with the mechanic regarding the mechanic's conclusions about the cause of the accident. However, as the Crown points out, the mechanic did not testify and there is no indication that he knew anything about the circumstances of the collision.

[45] The expert Reconstructionist provided an explanation as to why, in his opinion, any defects with the braking of the motorcycle did not contribute to the collision in the circumstances of this case. His view was that the motorcycle was not braking, so any deficiencies in the braking system of the motorcycle would not have caused or contributed to the accident. One must remember that it is the truck that ran into the rear of the motorcycle, not the motorcycle that, due to deficient braking pad material, was not able to stop in time before running into the rear of the truck.

[46] P.C. Schonewille's report is based on the testing of a 2008 Chevy Crew Cab, not the 2007 Avalanche that was involved in this case.

[47] P.C. Schonewille acknowledged that if he had actually used a 2007 Avalanche to conduct his tests, it would have resulted in a more accurate determination of the actual speed of Sgt. Edgecombe's vehicle at the point of impact. He also indicated that if the road was uneven, the test results could be inaccurate and the speed could be different. After looking at the photographs, he acknowledged that he missed some of the cracks, holes and unevenness on the road. Accordingly, when P.C. Schonewille prepared his report, he did not take into account the mechanic's findings regarding the mechanical fitness of the motorcycle, nor did he consider the fact that the motorcycle was in fifth gear. Furthermore, he did not use a 2007 Avalanche for testing, he did not consider the conditions of the road and he did not take into account the possibility that the motorcycle could have stalled if it was in fifth gear travelling at 43 km/hour. The driver of the motorcycle advised P.C. Schonewille that while driving in fifth gear he was waving at people on the sidewalk, which he denied doing at trial or had no memory of it. Again, this fact was not taken into account by the officer when he was tasked with determining the cause of the accident.

[48] P.C. Schonewille did not conduct any tests to determine whether the Avalanche had the correct tires in accordance with the manufacturer's requirements. He did state that the size of the tire would affect what the speedometer identifies as the speed. He did not determine if the overhead lights on the road were working on the evening of the collision. In addition, P.C. Schonewille confirmed that if the motorcycle stalled, it was possible that the brake lights were not operating or possibly defective because it did not pass safety.

[49] P.C. Schonewille acknowledged that if the motorcycle stalled and the brakes were not applied, this would have contributed to the collision. Another potential contributing cause of the collision was the momentary inattention of the motorcycle driver when he waved at the people on the sidewalk.

[50] P.C. Schonewille did not check the air pressure on the 2007 Avalanche (nor the 2008 Chevrolet pickup which was used for the testing), which would also have been a very slight factor in the speed estimate that he arrived at.

[51] P.C. Schonewille, however, was well rehabilitated in re-direct examination and explained that the apparent oversights in his methodology would not have changed his ultimate opinion about the cause of the accident and the speed of the truck at the time of collision. The factors mentioned by defence counsel in cross-examination would have had a negligible impact on his opinion looking at all the evidence as a whole.

[52] In the end, he maintained his opinion that the truck was travelling at 83 km/hour in a 50 km/hour zone and that he was unable to determine the speed of the motorcycle at the point of impact.

Katherine Clemens

[53] After the completion of two days of trial in May 2014, Katherine Clemens came forward to provide a witness statement to police after reading about the trial in the newspaper.

[54] When she testified, Ms. Clemens was studying for her Masters Degree in Sociology.

[55] On the date of this incident she was driving around with her friend Tim when they came upon this accident. She saw the motorcycle wedged under the front of the truck and there were two international students at the side of the road. The driver of the truck was in the driver's seat for about a minute until they got out and helped the motorcyclist to the side of the road. This concerned Ms. Clemens as she did not think that this was something that you should do with an injured person; you were to wait for the paramedics.

[56] While this was going on, her friend took over the 911 call that one of the international students had made to the police because he was having language difficulties.

[57] She then observed the driver, who she described as having dark short hair and a darker complexion, get back into her truck and try to back up off the motorcycle. She only went a foot or two and then stopped. Her friend was referring to this person as a male and she described the person as having an androgynous appearance.

[58] The police did not take a statement from Katherine Clemens at the scene of the collision, nor did the police take a statement from her friend who was also present at the scene. Katherine Clemens testified that, on the night of the collision, a blonde, fair-skinned officer told her that she was free to leave and did not ask her to provide a statement.

[59] Initially, Ms. Clemens believed that the driver of the Truck involved in the collision was a man. Ms. Clemens relied upon the newspaper coverage of the trial to change her opinion about the gender of the driver and to now identify the driver of the truck as a woman. On the night of the incident, she had no face-to-face conversation with the person driving the Truck. Ms. Clemens confirmed that when she observed the driver, she was quite a distance away, about thirty-five feet from the driver, and it was very dark outside.

[60] Ms. Clemens did not notice any smell of alcohol at the scene of the collision. She acknowledged that when she was at the scene of the collision she did not make any observations that led her to believe that alcohol was involved. She only believed that the driver was impaired by alcohol once she read the newspaper article about the incident.

[61] Katherine Clemens described the accused as demonstrating what, in her opinion, was 'odd behaviour'. She testified that the accused exhibited what appeared to her to be poor judgment - both in moving an injured party after a serious collision involving a large truck and a motorcycle (getting him up and telling him he was fine) and in trying to move her vehicle with a motorcycle wedged under its front bumper.

[62] Ms. Clemens stated that she felt the need to come forward to provide more information once she realized that the Applicant/Accused was not pleading guilty to the charge and because she did not think that it was even possible to plead not guilty to an impaired driving charge.

[63] This is a view that is no doubt shared by many laypeople who read about someone who has blown over the legal limit on an Intoxilyzer.

[64] It is also to be noted, and this was not described in defence counsel's written submissions, that the day after the collision she posted her account of this accident to Facebook. That posting was still available when she went to the police almost two years after the accident and she provided a copy of that to the police.

[65] I found Ms. Clemens to be an honest and forthright witness and, although Mr. Fazari strongly submitted that she was a biased witness, I did not find her to be.

Sergeant Lynda Hughes

[66] Sgt. Lynda Hughes was dispatched to a motor vehicle collision on Glenridge Avenue at 2:47 a.m. and arrived at the scene at 2:53 a.m. on June 26, 2012. She parked her cruiser at the bottom of the bridge and walked up towards the crest of the bridge. Sgt. Hughes observed a black pickup truck and a motorcycle lying on the ground, damaged. Other officers were already on the scene.

[67] She first walked towards the area where the motorcycle driver was being attended to and then walked towards the truck.

[68] She testified that she was advised by Acting Sergeant Noble that the driver of the pickup truck was Sergeant Edgecombe. Sgt. Hughes then walked over to the truck and saw Cathy Edgecombe standing outside at the door of her truck. She testified that she recognized the license plate as "C EDGE" and that it was Cathy Edgecombe's truck.

[69] She approached Edgecombe at the side of her truck and could smell alcohol on her breath. She then asked Edgecombe how much she had to drink. According to Sgt. Hughes, Edgecombe responded by saying she was at the Merchant Ale House but did not provide any number of drinks. According to Sgt. Hughes, Edgecombe further stated, "I'm sorry, he put the brakes on. I was behind him. I braked and hit him." In addition, Hughes testified that she noted that Edgecombe's speech was very slow and somewhat mumbled and that her eyes were glossy.

[70] Sgt. Hughes stated that Edgecombe was detained at 2:47 a.m., but was not read her rights to counsel until 3:06 a.m. Further, she confirmed that there were no public safety concerns, no need to subdue Edgecombe and no need to search her at the time.

[71] Sgt. Hughes arrested the Applicant for impaired operation of a motor vehicle at 3:03 a.m. However, she did not note the time that at which she formed the grounds to arrest the Applicant.

[72] Sgt. Hughes made the following observations of the accused relating to impairment:

• Odour of alcohol on her breath;
• Speech very slow and mumbled;
• Glossy eyes; difficulty focusing - trouble making eye contact;
• Difficulty dialing her cell phone, could not press the buttons properly;
• Leaning against her truck to maintain her balance;
• Very unsteady and unbalanced on her feet (both while walking to Sgt. Hughes' cruiser at the roadside and once at the OPP station); and
• Difficulty removing her property at the station

[73] Sgt. Hughes allowed Edgecombe to use her cell phone, but, according to her, Edgecombe was having a difficult time dialing because she could not press the buttons. However, Sgt. Hughes confirmed that it was dark in the area where the defendant was using the cell phone.

[74] That said, it is common for cell phones to have lighted keypads and darkness should not be an impediment to being able to dial a number, provided that the cell phone has some charge left in it.

[75] Sgt. Hughes also testified that while Edgecombe was walking with her to her cruiser, she noticed that Edgecombe was very unsteady and unbalanced on her feet.

[76] At 3:08 a.m. Sgt. Hughes placed Edgecombe in the back of her cruiser and once again advised her that she was under arrest and read her rights to counsel and caution from her duty book. Upon this arrest, Edgecombe requested to speak with her counsel, Mr. Fazari.

[77] At 3:11 a.m. Sgt. Hughes read the breath demand directly from her duty book.

[78] Sgt. Hughes stated that she was aware that the closest facility to provide the breath samples was District #1 in the City of St. Catharines. However, since Edgecombe was employed by the Niagara Regional Police and worked in St. Catharines, she thought it was best to take Edgecombe to a different facility, namely the O.P.P. station in Niagara Falls. She further indicated that the reason Edgecombe was taken to the O.P.P. facility was to ensure impartiality, avoid embarrassment and avoid conflict for Edgecombe. However, the investigation of this matter was completed by the Niagara Regional Police and the O.P.P. were only tasked with obtaining the breath samples from the defendant. At all material times, Sgt. Hughes was aware that an accused needed to be taken to the closest facility to provide the breath samples as soon as practicable with no exceptions.

[79] Sgt. Hughes stated that on June 25th, she was aware that Edgecombe was a Sergeant at District # 1. However, she did not make inquiries regarding the time at which Edgecombe finished her shift, nor did she make inquiries as to who the breath tech would be at District #1 at the material time. Sgt. Hughes did not ask Edgecombe if she wanted to provide her breath samples at District #1.

[80] Sgt. Hughes admits that District # 1 in the City of St. Catharines was the closest location for the breath samples to be taken that evening. She was aware that there was an Intoxilyzer 8000C available at District #1.

[81] At 3:13 a.m., Sergeant Hughes contacted Staff Sergeant Healey to confirm where she was to take Edgecombe to provide the breath samples.

[82] At 3:16 a.m. she was advised over the radio to bring Edgecombe to the O.P.P. Station in Niagara Falls. She acknowledged that District #1 station in St. Catharines was only three to four kilometres, and less than five minutes away, from the scene of the collision.

[83] Notwithstanding the call with Sergeant Healey, Hughes stated that she was in charge of this case from the start to the finish and it was her decision to take the defendant to the O.P.P. station and not to any of the other police stations, such as District #1, District #2 (Niagara Falls) or Welland, in order to provide the breath samples.

[84] At. 3:16 a.m., Sgt. Hughes left the scene and eventually arrived at the O.P.P station at 3:32 a.m. At that time, Hughes did not know whether there were any other police stations that were in a position to take the breath samples from the defendant.

[85] Hughes testified that while at the O.P.P. station, Edgecombe was unsteady on her feet and was having a difficult time removing her property, her shoes, and had to balance herself on the wall.

[86] Sgt. Hughes fairly testified that Edgecombe had no problems getting out of the police vehicle, nor did she lean on the vehicle upon arrival at the O.P.P. station. Sgt. Hughes made no observations about the condition of the pavement.

[87] Sgt. Hughes also confirms that she did not note any difficulties with Edgecombe walking from the cell area to the breath room, however this was quite a short distance.

[88] The video of the cell also demonstrates that Edgecombe was not falling over while using the facilities in the cell area.

[89] At 3:35 a.m., Sgt. Hughes lodged Edgecombe into one of the cells at the O.P.P. station.

[90] At 3:50 a.m. Sgt. Hughes called Mr. Fazari's office and his home leaving a message.

[91] At 3:52 a.m., Sgt. Hughes provided her grounds to P.C. Massie

[92] At 4:12 a.m. Sgt. Hughes once again called Staff Sergeant Healey.

[93] At 4:20 a.m., Hughes once again called Fazari's residence, and at 4:25 a.m. she advised Edgecombe that the charge would be Impaired Causing Bodily Harm.

[94] At 4:33 a.m., Hughes called Edgecombe's fiancée Darla to let her know that Edgecombe was okay.

[95] At 4:35 a.m. Sgt. Hughes asked Edgecombe if she wanted to speak with another lawyer since Mr. Fazari had not called back.

[96] At 4:36 a.m., Sgt. Hughes contacted Mr. Evans' office and left a message

[97] At 4:40 a.m., Mr. Evans returned the call and Sgt. Hughes advised him of the charges. She subsequently allowed Mr. Evans to speak to Edgecombe in the cell area. Sgt. Hughes stated that there is a phone that reached from the wall right into the cell area.

[98] Sgt. Hughes describes the area where the telephone call was made as a hallway with a door that leads into the cell area.

[99] Sgt. Hughes handed the telephone to Edgecombe, who was in the holding cell. The long cord on the phone stretched into the holding cell.

[100] Sgt. Hughes testified that she then left the area and closed the brown wooden door that leads into the area where Edgecombe was using the telephone to speak with her lawyer. Hughes confirmed that the cell area was being videotaped at the time. A review of this recording indicates that the door remained shut during the time that the Defendant was on her call with counsel.

[101] Sgt. Hughes did not recall if there were any other officers in the area outside of the wooden door.

[102] In cross-examination, Sgt. Hughes could not recall if she closed the door.

[103] Sgt. Hughes stated that the telephone call with Mr. Evans ended at 5:04 a.m. She then introduced Edgecombe to P.C. Massie, the Qualified Breathalyzer Technician.

[104] According to the video recording of the cell, at 03:48:14, Edgecombe placed the telephone on the bed in the holding cell. At 03:48.43, Edgecombe pulled down her pants, exposing her buttocks and sat on the toilet. At 03:49:11, Edgecombe stood up. At 03:49:48, the door opened. Accordingly, 1 minute and 29 seconds elapsed from the time the phone was placed on the bed to the time the door was opened.

[105] Sgt. Hughes testified that she recalled hearing a noise coming from Edgecombe, but maintained that she could not hear her conversation.

[106] At 5:28 a.m. she lodged Edgecombe back into the cell after the first breath sample was taken. At 5:39 a.m. she removed Edgecombe from the cell again and took her to the breath room.

[107] At 6:04 a.m. she lodged Edgecombe back into the cell. Mr. Paul DiSimone, the President of the Niagara Regional Police Association, spoke to Edgecombe while in the cell.

[108] Sgt. Hughes testified that Edgecombe was not released at that time, but instead was taken to the Niagara Falls Police Station to be processed

[109] Sgt. Hughes stated that, in addition to processing Edgecombe, she believed that, because of Edgecombe's position, there would be other paperwork to be completed by higher ranking police officers.

[110] At 6:31 a.m. Sgt. Hughes retrieved Edgecombe's property and at 6:32 a.m. Edgecombe was released from the O.P.P. cell area to her custody. At 6:34 a.m., she drove Edgecombe to the Niagara Falls Police Station, arriving there at 6:39 a.m. Edgecombe was then lodged into the cells at the Niagara Falls Police Station.

[111] At 9:40 a.m., Sgt. Hughes served documents to Edgecombe.

[112] In cross-examination, Sgt. Hughes acknowledged that she was unable to recall whether or not she was dispatched to the scene of the collision at 2:44 a.m. or 2:47 a.m. and confirmed that the accident occurred prior to those times.

[113] Sgt. Hughes confirmed that she was the Officer in Charge of the investigation from the beginning to the end (2:44 a.m. until 11:11 a.m.).

[114] Sgt. Hughes testified in cross-examination that she left her cruiser at the bottom of the hill approximately 75 feet from the collision.

[115] Sgt. Hughes testified that at the time of her arrival, as a result of the accident, she was conducting an investigation under the Highway Traffic Act, as well as a criminal investigation.

[116] Sgt. Hughes also testified that she is aware that, pursuant to the Highway Traffic Act, an accused must provide certain information. At no point in time did she speak to any bystanders who were present at the scene, nor did she take any statements from them.

[117] Sgt. Hughes indicated that she spoke to Sergeant Noble, but at no time did she speak to P.C. Spano.

[118] Sgt. Hughes in cross-examination testified that she was advised by Sergeant Noble that Cathy Edgecombe told him that she was the driver.

[119] Sgt. Hughes admitted that once everyone knew that Edgecombe was involved, the focus shifted to Police Services issues, including employment issues, discipline issues and notices of suspension. In fact, in cross-examination Sergeant Hughes confirmed that Inspector Garvey of the NRP attended at the OPP Station (where Edgecombe was being detained) and spoke to her about the matter.

[120] Sgt. Hughes concluded that Edgecombe was the driver based on what she was told by Noble. However, P.C. Noble states that he never told Sergeant Hughes that Edgecombe identified herself as the driver. There were, however, other reasons why Sgt. Hughes could reasonably conclude that the defendant was the driver, the main one being the admission to her by the defendant that she was sorry.

[121] P.C. Noble was asked at trial if he ever told Sergeant Hughes that Edgecombe was identified as the driver involved in the collision. He stated, "I indicated I believe Edgecombe was involved in the collision", "She never made a statement to me about being the driver" and "I didn't know if she was the driver." P.C. Noble again stated that he did not say anything to Sgt. Hughes about who the driver was because he "didn't know who the driver was."

[122] Sgt. Hughes does not recall indicating to Staff Sergeant Woods that Edgecombe made an inculpatory statement, although P.C. Woods states that Sgt. Hughes did say that Edgecombe made an inculpatory statement by admitting to being the driver.

[123] Although Sgt. Hughes claims that P.C. Noble did tell her that Edgecombe was the driver, she did not do anything further to investigate who the driver was. At no point in time did Sgt. Hughes see Edgecombe sitting in the truck, nor did she see the accident, nor did she speak to any bystanders (potential witnesses).

[124] Sgt. Hughes stated that Edgecombe's speech was slow and mumbled, but not slurred. In addition, at trial Sgt. Hughes testified that she knew Edgecombe for approximately 13 years and that she does not normally mumble or speak low. However, at trial, it was clear that Edgecombe speaks very quietly.

[125] In cross-examination, Sgt. Hughes stated that her grounds for the arrest were as follows:

• Odour of alcohol;
• Speech was slow and mumbled;
• Glassy eyes;
• Edgecombe not focusing; and
• Evidence that she was the driver from statement made to her by P.C. Noble.

[126] Sgt. Hughes testified that she made no observations about the condition of the road, but does state that Edgecombe was wearing open-toed sandals. Sgt. Hughes stated that while Edgecombe was walking down the hill, she was stumbling, but she did not need to hold her up.

[127] Sgt. Hughes confirmed that, at all material times, Edgecombe was cooperative, polite and remained quiet for the most part.

[128] Sgt. Hughes testified that from the time of her arrival at the scene until the time she arrested Edgecombe was approximately 15 minutes.

[129] Sgt. Hughes stated that on June 25 she was aware that Edgecombe was a Sergeant at District # 1, but was not aware as to when Edgecombe finished her shift, nor did she make inquiries of the same. She also did not make inquiries as to who the breath tech would be at District #1 at that time. At no point in time did she ask Edgecombe if she wanted to provide her samples at District #1.

[130] Sgt. Hughes admitted that District # 1 in the City of St. Catharines was the closest location for the breath samples to be taken that evening. She also indicated that she was aware that there was an Intoxilyzer 8000C available at District #1.

[131] According to Sgt. Hughes, an accused detained at District #1 can speak to their counsel in an enclosed, private room. However, at the O.P.P. Station there was no private room to speak to a lawyer.

[132] Sgt. Hughes testified that at the O.P.P. Station there are no signs in the cells stating that the cells are being video recorded. Sgt. Hughes did not advise Edgecombe that the cell was being video recorded.

[133] Sgt. Hughes testified that once both breath tests were completed, she did not recall any issues with Edgecombe being unsteady on her feet or swaying.

[134] Sgt. Hughes confirmed that Edgecombe was detained for approximately 6.5 hours and that during this time period she spoke to Sergeant Woods, Inspector Garvey and Inspector Lillico.

[135] Sgt. Hughes testified that her investigation was completed when the breath tests were done. However, she transported Edgecombe to District #2 (Niagara Falls) where she was further detained until 10:00 a.m. According to Sgt. Hughes, she had no authority to release Edgecombe notwithstanding that she was the Officer in Charge. Further, she confirmed that an officer of a higher rank made the decision to take Edgecombe to District #2 (Niagara Falls). Edgecombe could have been released from the O.P.P. station had it not been for the involvement of Staff Sergeant Woods and Inspector Lillico.

P.C. Massie

[136] The breath tests were conducted by P.C. Massie, an O.P.P. officer at the Niagara Falls detachment. P.C. Massie acknowledged that the breath tests were not videotaped. He further testified that some police stations record the taking of breath samples to confirm the officer's observations for evidentiary purposes.

[137] P.C. Massie made observations of Edgecombe as she walked from the cruiser, up the stairs and into the O.P.P. Station. He testified that she was swaying side to side as she walked up the stairs.

[138] P.C. Massie acknowledged that he did not make any observations that Edgecombe had any difficulty getting out of the cruiser upon her arrival at the O.P.P. Station. He stated that Edgecombe did not require assistance walking into the station. He remembered that she was wearing sandals.

[139] He testified that he watched Edgecombe fall forward and catch herself on a cabinet while she was removing her property in the cell area. He did not recall whether or not she was wearing shoes at the time. He acknowledged that, to his recollection, she did not have any difficulty removing her property, including her watch and belt.

[140] He stated that he made further observations of Edgecombe, including that she had glossy eyes and the odour of an alcoholic beverage on her breath.

[141] P.C. Massie confirmed that Sgt. Hughes' grounds for the arrest of Edgecombe included the following: a motor vehicle collision with personal injuries, an odour of an alcoholic beverage on her breath, slow speech, admitted to being at a bar, glossy eyes, unsteady on her feet and difficulty dialing a number on her cell phone. P.C. Massie testified that the offence took place at 2:46 a.m.

[142] P.C. Massie stated that there is a thick steel door between the cell area where Edgecombe would have to use the phone to speak to counsel and the hallway where the officers would wait for detainees to use the phone. He stated that he could not overhear the conversation between Edgecombe and counsel. He acknowledged that recently there has been a concrete booth with a steel door constructed in the cell area. He further acknowledged that at the time Edgecombe was being investigated his detachment had an issue with rights to privacy and talking to lawyers. P.C. Massie initially stated that when Edgecombe was speaking with her lawyer he was sure that the door was closed, although he did not write it in his notes. However, he then admitted that he did not recall whether he closed it.

[143] P.C. Massie explained that the officers involved could tell that a detainee was finished speaking to their lawyer because they would be instructed to yell or make noise. Otherwise, the officers would not be able to tell that the conversation between the lawyer and the detainee had ended. It was clear from the videotape that Edgecombe did not yell out to indicate that she was finished speaking to her lawyer. In addition, Edgecombe testified that she was not advised to yell or shout once she completed her call with the lawyer.

[144] When questioned about the practices in place for individuals in police custody who need to use the toilet, P.C. Massie stated that now women are provided with a gown, and that he has previously offered women in custody a blanket to cover themselves with while using the toilet. However, no such privacy was afforded to Edgecombe. P.C. Massie testified that, at the time Edgecombe was detained, he could not recall if there were any signs posted advising her that the cell was being video recorded. In addition, P.C. Massie testified that he did not recall whether he had advised Edgecombe that the cell was being recorded and did not recall whether he pointed to the camera.

[145] P.C. Massie testified that Edgecombe was swaying side to side and appeared unsteady while walking from the cell area to the breath room.

[146] P.C. Massie testified that when Edgecombe was providing breath samples she would start and stop; he stated that she did this nine times. He further stated that she began standing and watched the instrument. Although P.C. Massie stated that he believed that Edgecombe was not trying to be compliant with him until she was warned that she would be charged with failing to provide a breath sample, he acknowledged that she said that she was trying. Further, when she was standing providing a breath sample, she was not swaying or falling over.

[147] Prior to providing a second breath sample, P.C. Massie indicated that the instrument recognized an ambient fail. In order to correct the issue, P.C. Massie turned on a fan to blow the air around in the breath room.

[148] He testified that Edgecombe was not complying with the breath demands properly while providing her second sample and it took thirteen attempts for her to provide a suitable sample.

[149] He speculated that Edgecombe was attempting to provide two different samples that were not within twenty milligrams of each other in order to discredit the samples.

[150] P.C. Massie acknowledged that Edgecombe was breathing very heavily and was upset.

[151] P.C. Massie indicated that through his observations of Edgecombe at the Niagara Falls O.P.P. station, he formed the opinion that her ability to operate a motor vehicle was impaired by alcohol. However, upon cross-examination, P.C. Massie stated several times that he was not investigating Edgecombe for an impaired driving charge. In addition, he stated that while Edgecombe was standing in the breath room she was not swaying or falling over.

[152] I found that P.C. Massie was a very credible and reliable witness who gave his evidence in a straightforward manner and showed no bias or animus towards the accused. He was fair to the accused and did not, in my view, try to show her in the worst light. It is important to me that he knew her and how she acted in a sober state as he had taken the Intoxilyzer qualification course with her.

Staff Sergeant Ian Borden

[153] Staff Sergeant Ian Borden is a member of the O.P.P. who testified with respect to the procedures involving cell video monitoring and recording. As a result of several Coroners' inquests, the cells at O.P.P. stations across the province are now video recorded and monitored.

[154] Sergeant Borden testified that the rationale for video recording and monitoring of the cells was related to safety concerns both for the detainee and the police. However, in the Niagara Falls O.P.P. detachment, notwithstanding these concerns, the detainees were allowed to use a telephone through the cells which could have resulted in self-harm if the cells were not being monitored. In this case, there was no evidence that the cell was, in fact, being monitored at the time that Edgecombe was being detained.

[155] Sergeant Borden testified that, as a result of recent Court decisions, the process has changed and now an individual detainee is entitled to a blanket that he or she can use for privacy while using the toilet in the cells.

Staff Sergeant Michael Woods

[156] Staff Sergeant Woods testified that at the time of this incident he was the Detective Staff Sergeant in charge of the District #2 Detective Services Unit.

[157] On June 26, 2012 at 5:33 a.m. he received a phone call from Sergeant Brad Swan to advise him of the incident.

[158] Staff Sergeant Woods testified that as part of his involvement in this matter he was to interview the accused, Edgecombe. The interview with Edgecombe commenced at 8:58 a.m. on June 26, 2012.

[159] He testified that while Edgecombe was in the interview room and prior to the commencement of the video recording, Inspector Lorne Lillico served Edgecombe with a Notice of Suspension and her badge was removed. There is no evidence as to what the conversation was between Sergeant Lillico and Edgecombe.

[160] He also testified that the procedures for taking breath samples from an average citizen do not differ from the procedures followed when a police officer is under arrest and is subject to a breath demand.

[161] He further testified that the reason he was contacted was specifically because the incident involved a police officer.

[162] He was not aware of any policy which requires the police to take a police officer who is charged with an offence to a police station other than the one where he or she works.

[163] Staff Sergeant Woods testified that there were other higher ranking police officers involved in this investigation, including Sergeant Brad Swan, Inspector Shawn Clarkson, Sergeant Marg Smith and Inspector McLean (SIU Investigator).

[164] Staff Sergeant Woods testified that after 6:39 a.m., after Edgecombe was transported to District #2, he took over the investigation. Notwithstanding that Edgecombe's detention continued at District #2 at 6:39 a.m., Sergeant Woods did not arrive at the station until 7:55 a.m. and his first contact with Edgecombe was at 8:53 a.m. with no reason provided as to why he waited another hour before interviewing Edgecombe. Despite the fact that the criminal investigation was completed by the Officer in Charge Sgt. Hughes at the time Edgecombe arrived at District #2, Edgecombe was further detained in order for Sergeant Woods to conduct his investigation.

[165] Staff Sergeant Woods testified that at 8:05 a.m. he spoke with Sgt. Hughes at District #2. He further testified that at 8:05 a.m. he was advised by Sgt. Hughes that Edgecombe made an inculpatory statement at the scene in regards to her being the driver of the vehicle. Staff Sergeant Woods' evidence on this point was in direct contradiction to the evidence of Sgt. Hughes who denied telling Staff Sergeant Woods that Edgecombe had made an inculpatory statement.

[166] Staff Sergeant Woods also testified that there was no real urgency in serving Edgecombe with the Notice of Suspension at that time in the morning and, in fact, according to him, it could have been served later in the day or another day. As such, the defendant submitted that there was no need to further detain Edgecombe in order to serve her with the Notice of Suspension. However, the Crown submitted that the further detention was necessary to allow Staff Sergeant Woods to conclude the criminal investigation since this was a criminal charge involving a police officer.

[167] He testified that during his interview with Edgecombe she was crying, anxious, upset and nervous. Furthermore, he was aware that she had worked a shift on June 25, 2012.

[168] Staff Sergeant Woods testified that during the interview with Edgecombe, at no point in time did he tell her that he was not involved in a Police Services Act or discipline investigation. Prior to commencing the interview, at no time did Staff Sergeant Woods advise Edgecombe as to why she was being further detained. It was submitted by the Defendant that since Inspector Lillico was in the interview room with Staff Sergeant Woods while the Notice of Suspension was being served, it was reasonable for Edgecombe to believe that this interview was part of a Police Services Act discipline investigation. He also advised her at the outset of the interview that she was being charged with impaired operation, not impaired causing bodily harm, read her rights to counsel, and the primary and secondary police cautions.

[169] Notwithstanding that Staff Sergeant Woods was aware that Edgecombe had already been detained for approximately 6 hours, was crying, upset and was stressed, he continued to conduct his interview. It was submitted by the defendant that the criminal investigation was completed by Sgt. Hughes and, as such, there was no reason for Staff Sergeant Woods to further detain Edgecombe. At the time Edgecombe was transported to District #2, the criminal investigation had been completed. Accordingly, it was not necessary to further detain Edgecombe at that point and her continued detention in these circumstances amounted to over-holding, and constituted an unlawful detention, in contravention of her Charter rights. It is noted, however, that because Edgecombe was a Police Sergeant with the police service that investigated her, Staff Sergeant Woods testified that he was there to dot all the i's and cross all the t's.

[170] Staff Sergeant Woods testified that after he read Edgecombe's rights to counsel, she responded by saying that she had spoken with Mark Evans earlier. However, at no point in time did Sergeant Woods ask Edgecombe whether she wanted to speak with Mark Evans again in light of the fact that he was now conducting this additional interview. However, the further interview involved a charge of lesser jeopardy because, rather than being charged with impaired operation causing bodily harm, she was now charged and cautioned on impaired simpliciter. As well, at no time did Edgecombe indicate that she wished to speak to Mr. Evans again.

[171] Staff Sergeant Woods testified that at the commencement of his interview with Edgecombe at approximately 8:55 a.m., there was no evidence of impairment and, as such, Edgecombe could have been released at that time had Staff Sergeant Woods not felt that it was necessary to conduct the final interview.

[172] Edgecombe asked Staff Sergeant Woods what she could expect in terms of discipline. He did provide some answers to Edgecombe's inquiries saying he did not know but he did not think that she would lose her job and at no point in time did he advise her that he was not conducting a Police Services Act or discipline investigation.

[173] Staff Sergeant Woods testified that he has provided a statement regarding this matter to the Policing Standards Unit, however he also stated that he was required to do so and otherwise is in no way involved in the discipline aspect of this case.

[174] Staff Sergeant Woods testified that at one point in time he left the interview and shortly thereafter came back into the interview room. When he did, once again Edgecombe asked him what she could expect in terms of discipline. Staff Sergeant Woods told Edgecombe that he really could not give her any answers about discipline issues.

[175] Staff Sergeant Woods testified that he was also aware that Edgecombe had suffered an injury to her ACL on her right knee, had been off work and was on crutches at one point as a result of this injury. This was only a vague recollection and he did not have any idea when that had occurred.

[176] Staff Sergeant Woods started the interview with Edgecombe at 9:01 a.m. and it concluded at 9:28 a.m. Edgecombe was detained until 10:00 a.m.

Catherine Edgecombe

[177] Edgecombe testified that at the time of the incident she was 44 years of age, she was involved in a common-law relationship with her spouse, Darla, and had three children.

[178] At the time of the incident, Edgecombe was employed by the Niagara Regional Police Service holding the rank of Sergeant.

[179] Edgecombe testified that on Monday June 25, 2012, she worked as a Sergeant from 5:00 a.m. until 5:00 p.m. at District #1 in the City of St. Catharines. She was in charge of "D" Platoon. She had 19 officers on "D" Platoon and they completed their shift at the latest by 7:00 p.m. At the time of the incident, none of the officers under Edgecombe were at District #1. She had only worked at District # 1 for one year and prior to this date she worked at 2 Cushman Road in the City of St. Catharines as a breath technician for 4 years. She had also worked at District #2 in the City of Niagara Falls for 8 years.

[180] On June 25, 2012, Edgecombe completed her shift and went home. At 8:00 p.m. she left her home and attended at the Feathery to meet with a friend and her common-law spouse Darla. Prior to leaving her home she did not consume any alcohol. While at the Feathery she had some food and consumed five eight-ounce glasses of Alexander's Keith draft beer between 8:00 p.m. and 12:30 a.m.

[181] Edgecombe testified that she left the Feathery at 12:30 a.m. and was operating a 2007 Chevy Avalanche. While in the parking lot of the Feathery, she spoke to her friend Rob and they decided to go to the Merchant Ale House which is also located in the City of St. Catharines. When she arrived at the Merchant Ale House at 12:45 a.m., she met her friend Rob, who was already sitting in the establishment. Rob ordered two 16-ounce glasses of beer. During the entire time Edgecombe was at the Merchant Ale House she did not order any alcohol herself. While Edgecombe was testifying at the trial on October 9, 2014, at certain points it was difficult to hear her evidence.

[182] She testified that while she was at the Merchant Ale House, she had no difficulties with her speech, was not acting weird, nor did she have any problems walking.

[183] She testified that she finished the glass of beer and her friend Rob ordered another glass for her. She further testified that she did not finish the second glass of beer and she left approximately a quarter or a third of the beer in the glass. She left the Merchant Ale House at 2:30 a.m. just after she consumed part of the glass of beer.

[184] At 2:30 a.m. when she left the Merchant Ale House she was tired but felt no signs of impairment and could drive. She was wearing camel knee-length shorts, a black t-shirt, a baseball cap, and open-toed sandals with a strap by the heel. The sandals provided her with no support.

[185] In 2005, Edgecombe tore her ACL on her right knee and was off work for approximately one month. When she returned to work she was on light duty and continued with therapy. She testified that, as a result of this injury, she has balance loss and her right knee occasionally gives out. However, she does not recall whether, at the time of the incident, she was having problems with her knee.

[186] She testified that she is a low talker and that on the night of the incident her speech was not slurred. She wears contact lenses and she testified that on the night of the incident she had only had one hour of sleep and, therefore, was tired.

[187] She said that she left the Merchant Ale House at 2:30 a.m. and was on her way home. She took the most direct route travelling on Carlisle Street, to Parkway, to Westchester Avenue and then to Glenridge Avenue.

[188] Edgecombe testified that she was travelling southbound on Glenridge Avenue with no difficulties. When she was approaching the overpass, her cell phone made a noise. She looked down at her phone for a couple of seconds and when she looked back up she observed a motorcycle that was stopped in front of her. She does not recall seeing any lights on the motorcycle, nor any brake lights. She then slammed on her brakes.

[189] Edgecombe also operates motorcycles and testified that if the motorcycle driven by Itayi Nyaundi was travelling at the speed of 44 to 45 kilometers per hour in fifth or sixth gear it would stall out. She further testified that if the motorcycle stalled out, the brake lights would not go on. This evidence was given very little weight by me because there was no evidence before me that she had ever operated a motorcycle of the make and model of that driven by Mr. Nyaundi that evening and I found her assertion that the brake lights not going on if the motorcycle had stalled to be somewhat self-serving evidence.

[190] After colliding with the motorcycle, Edgecombe got out of her vehicle to assist the driver. Her vehicle was still running and the lights were on. Both vehicles were at the crest of Glenridge Avenue.

[191] Edgecombe testified that the driver of the motorcycle was lying in the middle of the road. She indicated that from the time she left the Merchant Ale House at 2:30 a.m. it only took her two to three minutes to get to Glenridge where the accident took place. Edgecombe was assisting the driver of the motorcycle and then went back to her vehicle to call 911, but her cell phone was dead. She realized at this time that the noise the cell phone had made prior to the accident was a beep to indicate the battery was dying.

[192] Edgecombe testified that because the driver of the motorcycle was in the middle of the road, and at the crest, she decided to move him to the curb out of danger. She thought that because of the location of the driver, it was important to move him in order to avoid a vehicle from coming around her truck and running over the driver.

[193] Edgecombe testified that the first officer she spoke to at the scene was P.C. Spano. She stated that P.C. Spano asked her who the other driver was and, in response to that question, Edgecombe said that she was the driver and had been driving. Edgecombe also told P.C. Spano that "he stopped in front of me and I hit the brakes and slid into him."

[194] She stated that she was familiar with the requirements under the Highway Traffic Act, namely that you have to report any accident you are involved with where there are injuries, damaged property, that you have to inform the police that you were the driver and provide your driver's licence, ownership and insurance.

[195] She also testified that she was required to tell P.C. Spano she was the driver because of the provisions of the Highway Traffic Act. She only spoke to P.C. Spano for approximately one minute or a little more.

[196] Edgecombe testified that the next police officer she observed was Sergeant Brian Noble. She stated that Sergeant Noble said "hi" to her and she said "hi" back. There was no other conversation with Sergeant Noble and the interaction lasted for a few seconds.

[197] At the time she was briefly saying hi to Sergeant Noble, she was nervous, upset, in shock, worried about the driver, and embarrassed.

[198] Edgecombe testified that the next officer she spoke to was Sgt. Hughes while standing by the driver's side of her vehicle. She recalls that the driver's side door was closed. Sgt. Hughes asked Edgecombe if she had been drinking and Edgecombe responded by saying she was at the Merchant Ale House. Edgecombe also told Sgt. Hughes that she was behind the motorcycle, he stopped and she braked but hit him. She had no other conversation with Sgt. Hughes at that time. Edgecombe felt that she was required to respond to questions since Sgt. Hughes was assisting in the investigation. Edgecombe never told Sgt. Hughes that she was the driver of the truck.

[199] She testified that Sgt. Hughes arrested her for impaired driving and instructed her to walk from the location of the truck down the overpass to the cruiser. Edgecombe estimated that the distance she walked downhill was between 20 to 30 metres. Edgecombe walked down the hill wearing her sandals with no assistance from Sgt. Hughes. At the time of the incident, Edgecombe did not notice the condition of the road. However, now that she viewed the photographs at trial, she stated that it was in poor repair with many cracks, holes and divots. She does not recall having any difficulties walking and testified that her speech was fine.

[200] She testified that Sgt. Hughes allowed her to use the cell phone in order to contact her partner, Darla. However, since the cell was not charged she was having difficulties using the touch screen. Sgt. Hughes subsequently read Edgecombe her rights to counsel and placed her into the cruiser. Edgecombe stated that she had no difficulty understanding what was said to her and had no difficulties getting into the back of the cruiser.

[201] Edgecombe testified that she assumed she was being transported to District #1 in St. Catharines, but was, in fact, transported to the O.P.P. Detachment in Niagara Falls. At no time did Sgt. Hughes ask Edgecombe if she wanted to go to District #1. Edgecombe testified that the breath rooms at District #1 and District #2 are video recorded.

[202] Edgecombe testified that she had no difficulties with getting out of the cruiser in the O.P.P. parking lot, nor while walking on the stairs or in the station.

[203] Edgecombe testified that while at the O.P.P. station she was asked to remove her property and had no difficulties doing the same. She testified that she was not leaning forward nor falling down. She had no difficulties with removing her sandals.

[204] While Edgecombe was being detained at the O.P.P. station, at no point was she advised that the holding cells were being recorded. She did not see any signs indicating that the cell was being video recorded. Edgecombe testified that while at the O.P.P. station she was still upset, nervous, embarrassed and stressed.

[205] Edgecombe testified that she spoke to Mark Evans while sitting in the cell. The telephone was handed to her through the cell bars. She did testify that at District #1and District #2 an accused is placed in a private booth when speaking to defence counsel.

[206] While speaking to Mark Evans, Edgecombe testified that she could hear voices in the hallway, people walking around and talking. She never advised the police that she felt she had no privacy because she was still under stress. She did, however, testify that she did not feel she had privacy while speaking to Mark Evans. After completing her call with Mark Evans, she did not make any noise or alert the police officers in any way, including verbally, that she had completed her call with defence counsel. She placed the telephone on the cell bed after the call was completed and within a short period of time the officer came into the cell area to retrieve it. Edgecombe testified that she believed that the police were listening to her call and heard when she completed the call.

[207] Edgecombe testified that the first time she became aware that the cell was being video recorded was when she viewed the disclosure provided by the police. She viewed herself using the toilet and exposing her buttocks. She felt embarrassed and humiliated since this video would be viewed by other police officers, the court, the media, her colleagues and other lawyers.

[208] Edgecombe testified that as a breath tech, the reason the testing is recorded is that it corroborates the observations of the police with respect to the signs of impairment exhibited by the detainee.

[209] After the breath tests were completed, P.C. Paul DiSimoni attended to speak with Edgecombe. She did not contact him, nor did she request the police to contact him. Paul DiSimoni is President of the Police Association. Paul DiSimoni advised Edgecombe that the SIU was being contacted. Edgecombe believed that Paul DiSimoni as the President of the Police Association is also involved with Police Services Act and discipline matters. He was not called as a witness at the trial.

[210] Edgecombe testified that after her conversation with Paul DiSimoni she was transported to District #2, but was never advised by Sgt. Hughes of the reason for this transfer. Edgecombe thought the purpose of the transfer to District #2 was to be served with the paperwork involving the matter. Edgecombe further testified that she believed that she was going to be released from District #2 after she was fingerprinted. Her partner Darla was available to pick her up from District #2.

[211] At District #2, Edgecombe was placed in the cell and subsequently Sergeant Woods removed her and took her into an interview room. At this time, Sergeant Woods did not advise her why she was being placed in the interview room, nor did he explain to her the nature of his involvement. When she arrived in the interview room, Inspector Lillico was already waiting inside. Inspector Lillico served Edgecombe with a Notice of Suspension and removed her badge.

[212] Edgecombe testified that she thought the interview involved Police Services and SIU matters since Sergeant Woods was with Inspector Lillico and her badge had just been removed, along with receiving the Notice of Suspension. Edgecombe further testified that she subsequently made statements to Sergeant Woods during the interview because she thought it involved professional standards, policing standards and, as such, she was compelled to cooperate. During the interview, Edgecombe also asked questions regarding Police Service standards and discipline issues. During the interview, Edgecombe was crying, worried, upset, stressed, nervous, tired and embarrassed.

[213] Edgecombe was released from District #2 at 10:00 a.m., approximately 7 hours after her arrest. She was suspended for only 24 hours.

[214] Edgecombe testified that she was aware of other Niagara Regional Police officers charged with Over 80 and Impaired Driving who were not taken to the O.P.P. station to provide breath samples.

[215] In cross-examination, Edgecombe testified that the incident was an accident and that at all times her only concern was the condition of the individual on the motorcycle that was hit.

[216] Edgecombe testified that at the time of the incident she spoke to P.C. Spano and Sgt. Hughes because they wanted to know what happened. Edgecombe further testified that at the time of the accident she was aware that it was a Highway Traffic Act collision investigation. However, in cross-examination she stated that once the duty to report is completed to the investigating officer there is no further duty to identify to any other officer. The Crown argues that even if there was a duty-felt compulsion to report to P.C. Spano, that duty was completed upon the Defendant identifying herself as the driver to P.C. Spano and there was no obligation to continue to identify herself as the driver to Sgt. Hughes or any other officers.

[217] Edgecombe testified that on the date of the incident her weight was 160 lbs., not 155 lbs. as set out in the Alcohol Influence Report.

[218] Edgecombe testified that at the time of the accident she did not know her breath readings were Over 80, but she felt that she was not impaired and she felt fine. She further testified that while she was working as a breath tech, she had actually seen people who had readings of over 200, but she did not believe they were impaired and, further, they had no signs of impairment.

[219] In cross-examination, Edgecombe testified that her phone went off, she looked down to see if it was a text message from home, but realized it was the low battery sign. When she looked up, the motorcycle was in front of her and appeared to be stopped. She then slammed on her brakes. She reiterated on cross-examination that if the motorcycle was in fifth or sixth gear travelling at 40 km/hour, it would stall.

[220] Edgecombe testified that, although she knew that the Niagara Regional Police video record the cells, there are signs everywhere advising a detainee of the video recording. Furthermore, she believed that the detained individual is also told of the recording. She further testified that while at the O.P.P. station she did not see any signs indicating that the cell was being recorded, nor was she told it was being recorded. She did not think they were video recording the cell. In addition, she testified that she did not notice the video camera on the wall. She would not have used the toilet unless she felt she had some privacy while in the cell.

[221] Edgecombe testified that she had a very quiet voice at the time of the incident.

[222] In cross-examination, Edgecombe testified that while she was speaking to Mr. Evans she could hear people making noise in the hallway. In addition, she could hear people talking loudly.

[223] In cross-examination, she testified that she thought the interview with Sgt. Woods dealt with policing standards and not with the impaired matters or the criminal investigation. She thought she had to cooperate with the police when dealing with policing standards issues.

Mark Evans

[224] Mark Evans did not testify at the trial. However, on consent, his sworn Affidavit dated October 7, 2014 was filed as Exhibit #12. In it, he states that on June 26, 2012 he spoke to Catherine Edgecombe at 4:40 a.m. and made the following observations:

• her speech was good, showing no signs of slurring;
• the conversation was unremarkable in that the questions and answers were rational and coherent;
• she seemed completely sober and he detected no signs that she was under the influence of alcohol.

Dr. Daryl Mayers

[225] The toxicologist, Dr. Daryl Mayers, did not testify. However, on consent, his Report/Letter of Opinion was filed as Exhibit #11. Dr. Mayers' opinion was that the BAC readings at approximately 2:45 a.m. were 150 to 205 milligrams of alcohol in 100 millilitres of blood (mg/100 ml). However, according to the evidence, a 911 call was received at 2:44 a.m. and completed at 2:48 a.m. As such, the accident did not occur at 2:45 a.m. as set out in Dr. Mayers' report.

[226] The witness Abdulaziz Aldaghaim testified that from the time he heard the crash until the police arrived, approximately 10 minutes elapsed. P.C. Spano was the first officer to arrive at the scene and, according to her evidence, she was dispatched at 2:47 a.m. and arrived at the scene at 2:48 a.m. Accordingly, the defendant submits that the accident occurred at approximately 2:38 a.m. and not at 2:45 a.m. as set out in Dr. Mayers' report. It is submitted that since Dr. Mayers did not provide a range of time but specifically stated approximately 2:45 a.m., his conclusions with respect to the BAC readings are inaccurate.

[227] In summary, the following are the relevant time periods in this case:

a) At 2:36 a.m. NRP dispatched to a motor vehicle collision.

b) At 2:48 a.m. P.C. Spano arrives at the scene and speaks to Edgecombe.

c) No evidence of when Sgt. Hughes formed reasonable and probable grounds.

d) At 3:03 a.m. Sgt. Hughes arrested the Applicant.

e) At 3:08 a.m. Sgt. Hughes advised Applicant of reason for arrest, and right to counsel and caution were read.

f) At 3:11 a.m. Sgt. Hughes read the breath demand.

g) At 3:16 a.m. Sgt. Hughes began transport the Applicant to O.P.P. station.

h) At 3:32 a.m. Sgt. Hughes and Applicant arrived at the O.P.P. station.

i) At 3:35 a.m. the Applicant was lodged into the cell.

j) At 4:40 a.m. the Applicant spoke to counsel.

k) At 5:06 a.m. introduction to P.C. Massie.

l) At 5:28 a.m. first breath test was conducted.

m) At 6:03 a.m. second breath test was conducted.

n) At 10:00 a.m. the Applicant was released from custody.

4: ANALYSIS

[228] An important issue in this case is credibility. To arrive at my decision, I have analyzed the evidence presented in this case with the following principles in mind.

[229] One, the accused is presumed innocent unless and until proven guilty beyond a reasonable doubt. The burden of proof remains on the prosecution throughout the trial. The accused has no burden to disprove any elements of the charges. The standard of proof that the Crown is required to meet in any criminal trial is a very high one indeed.

[230] The standard more closely approaches absolute certainty than the standard of proof on a balance of probabilities. In R. v. Starr, 2000 SCC 40, Mr. Justice Iacobucci stated for the majority at paragraph 242:

In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. Both of these alternative standards are fairly and easily comprehensible. It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard appropriately between these two standards. The additional instructions to the jury set out in Lifchus as to the meaning and appropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proof beyond a reasonable doubt. In this regard, I am in agreement with Twaddle J.A. in the court below, when he said, at p. 177:

If standards of proof were marked on a measure, proof "beyond reasonable doubt" would lie much closer to "absolute certainty" than to "a balance of probabilities". Just as a judge has a duty to instruct the jury that absolute certainty is not required, he or she has a duty, in my view, to instruct the jury that the criminal standard is more than a probability. The words he or she uses to convey this idea are of no significance, but the idea itself must be conveyed....

[231] In this case, the defendant has testified. I am mindful of the dictates of the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742, 63 C.C.C. (3d), 397. There, Mr. Justice Cory for the majority indicated that in a case where credibility is important, the trial judge is required to instruct the jury or himself, if it is a judge alone matter, that the defendant must be acquitted if the defendant's evidence is believed.

[232] The defendant is entitled to an acquittal even if the trier of fact disbelieves his evidence but his evidence raises a reasonable doubt with respect to his guilt.

[233] Thirdly, even if the trier of fact is left in no doubt by the evidence of the accused, the trier of fact must, nevertheless, ask himself, on the basis of the evidence which he does accept, if he is convinced beyond a reasonable doubt by that evidence of the guilt of the defendant.

[234] In assessing a witness' credibility and reliability, I must consider the witness' perception, memory and sincerity. I must consider the witness' ability to observe, store, recall and report evidence accurately, reliably and truthfully. I must consider the witness' interest or bias, if any, including animosity. In assessing evidence of a witness, I try to listen carefully to their testimony and make observations of the witness while they are on the stand. I have to take into account that appearing and testifying in court can be a very stressful occasion for many persons and that witnesses can exhibit this in many different ways.

[235] As a result, I do not place as much weight on a witness' appearance or demeanour on the stand than the analysis of their evidence. I prefer to apply a threefold test to the testimony of the witness. I look to see if the testimony is internally consistent; that is, does the evidence fit together and is one piece of their evidence consistent with another? Secondly, is the testimony of a witness externally consistent? Does it fit with other known or accepted facts? Does it fit in with other evidence or testimony that is accepted or believed? Finally, does the testimony have a ring of truth to it? Does it stand the test of common sense?

[236] In short, the real test is in determining if the evidence of the various witnesses is credible. The question is: Is it in harmony with the preponderance of the probabilities that a practical and informed person would readily recognize as reasonable in that place and in those conditions?

[237] I can accept some, all or none of a witness' evidence and I am required to weigh all of the evidence. This is not a credibility contest where I have to pick the version of one witness and, by doing so, reject that of another.

[238] Simply because I have not averred to a submission made by counsel or a piece of evidence in this proceeding or case law cited does not mean that I have not considered it in arriving at my conclusion.

[239] In my view, it would be most logical to deal with the issues in this case beginning with the use of what the defendant alleges were statutorily compelled statements to the police. So I will first address the Charter application pursuant to section 7 of the Charter.

Duty to Report – R. v. White

[240] The defence alleges that section 7 was infringed when the accused spoke to Officer Spano and Sgt. Hughes because the accused was compelled to speak to these officers due to her legal obligation to report the accident.

[241] In R. v. White, [1999] 2 S.C.R. 417, 135 C.C.C. (3d) 257 (S.C.C.), the Supreme Court of Canada held that where a driver gives a statement to a police officer who is investigating a motor vehicle accident because the driver honestly and reasonably believes that he or she is under a "legal obligation" to do so, that statement is compelled and, hence, is not admissible against that driver in a criminal proceeding.

[242] In R. v. Soules, 2011 ONCA 429, [2011] O.J. No. 2500 (Ont. C.A.), the Ontario Court of Appeal followed the British Columbia Court of Appeal's decision in R. v. Powers (2006), 2006 BCCA 454, 213 C.C.C. (3d) 351 (B.C.C.A.) and held that a driver's compelled utterances to a police officer at the scene of an accident may not even be used as grounds for a breath demand.

[243] The accused must establish on a balance of probabilities an honest and reasonably held belief that she was required by law to report the accident to the person to whom the report was given. See R. v. Soules, 2011 ONCA 429 (OCA) at paragraph 29, and R. v. White, [1999] S.C.J. 28 (SCC) at paragraph 77 and 81.

[244] Section 199(1) of the Highway Traffic Act states:

Duty to report accident

199.(1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3).

Officer may direct person to report accident at another location

If, on reporting the accident to the nearest police officer under subsection (1), the person is directed by the officer to report the accident at a specified location, the person shall not furnish the officer described in subsection (1) with the information concerning the accident but shall forthwith attend at the specified location and report the accident there to a police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3).

Duty of police officer

A police officer receiving a report of an accident, as required by this section, shall secure from the person making the report, or by other inquiries where necessary, the particulars of the accident, the persons involved, the extent of the personal injuries or property damage, if any, and the other information that may be necessary to complete a written report concerning the accident and shall forward the report to the Registrar within ten days of the accident.

Duty of person in charge of vehicle in case of accident

200.(1) Where an accident occurs on a highway, every person in charge of a vehicle or street car that is directly or indirectly involved in the accident shall,

remain at or immediately return to the scene of the accident;

render all possible assistance; and

upon request, give in writing to anyone sustaining loss or injury or to any police officer or to any witness his or her name, address, driver's licence number and jurisdiction of issuance, motor vehicle liability insurance policy insurer and policy number, name and address of the registered owner of the vehicle and the vehicle permit number.

Penalty

Every person who contravenes this section is guilty of an offence and on conviction is liable to a fine of not less than $400 and not more than $2,000 or to imprisonment for a term of not more than six months, or to both, and in addition the person's licence or permit may be suspended for a period of not more than two years.

[245] If the defendant has met her burden of proving on a balance of probabilities that the inculpatory statements made to the police admitting that she was the driver were generated as a result of her obligation to report under s. 199(1) of the Highway Traffic Act, the exclusion of statutorily compelled admissions is compulsory. See Soules, supra, at paragraph 61 and White, supra, at paragraph 89.

[246] The defendant was a police sergeant with the Niagara Regional Police and had been a police officer for 18 years. She would have been aware of her duty to report and, in my view, she was acting under that duty when she uttered the words to Constable Spano that she was the driver of the truck involved in the collision. Despite the reservations that I have about the defendant's credibility and reliability, which will be developed later in these reasons, I am of the view that she has met the balance of probabilities standard regarding this issue.

[247] Pursuant to section 24(1) of the Charter, I exclude all statements made by the accused to Officer Spano.

[248] I cannot reach the same conclusion regarding the statements made to Sergeant Hughes.

[249] Sergeant Hughes testified that she relied in part upon the information imparted to her by Acting Sergeant Noble that the defendant was the driver. The evidence conflicts on this point as Acting Sergeant Noble testified that he did not tell Sergeant Hughes that the defendant was the driver.

[250] The defendant herself admitted in cross-examination that once the driver of a motor vehicle has provided the requested information to the investigating officer, who in this case would be Constable Spano, then the duty to report is complete. Constable Spano was the first officer on the scene and specifically asked the group who the driver was. It was at this point that the defendant indicated that she was. In the wording of s. 199(1) of the Highway Traffic Act, Constable Spano was the nearest police officer that the section required the reporting and furnishing of information concerning the accident to.

[251] The defendant stated in cross-examination in the October 9, 2014 transcript as follows beginning at page 146 as follows:

Q. Leaving all of this hypothetical aside of assisting officers and other people arriving, all I'm asking you is that if there is an individual whose been involved in an accident….

A. They're obligated to talk to the investigating officer and….

Q. Okay, I wasn't finished my question.

A. Sorry. I apologize.

Q. You have an individual whose been involved in an incident, collision where there is a duty to report.

A. Yes

Q. That individual speaks to an officer. They provide all of their documentation, they tell the officer what they need to in terms of their involvement. At that point, that individual's duty to report under the HTA is complete, fair?

A. I believe so.

Q. Okay. Well what are you not sure about?

A. It's just circumstances that I've seen in the past that's throwing it off.

Q. Well circumstances that I've just described where all of the required information is passed on to the officer, in that circumstance you've seen an ongoing duty to report to another officer?

A. Well if there's only one individual dealing with it, then if there's just one individual, then yes their obligation would be ended at that point.

Q. I'm talking about the obligation on the driver.

A. Yes.

Q. Correct?

A. Correct.

Q. Once they've provided all of their information, whatever police decide to do with that is a separate issue, you'd agree with that, correct?

A. Yes.

Q. If there are five officers involved after that point, it doesn't change the obligations on the driver, correct?

A. No. Once they've identified to the investigating officer then…

Q. Right.

A. …yes.

Q. They're duty is complete at that point?

A. Yes.

[252] As the Crown states in her written submissions, which I accept and adopt, all officers at the scene of the collision knew who the accused was, where she worked, how to find her and that she would have been properly insured as a patrol sergeant. The purpose behind the HTA reporting obligation had already been fulfilled the moment the accused spoke to Cst. Spano and told her what happened.

[253] Even if I am wrong regarding the above, it is my view that Sgt. Hughes had sufficient grounds to conclude that the defendant was the driver of the motor vehicle in light of all the surrounding circumstances.

[254] The Crown submits, and I agree, that the accused went on to tell Sgt. Hughes what had happened not because of any legal compulsion, but rather because she felt bad. She was embarrassed and wanted to cooperate. In these circumstances, then, given that her HTA obligation was fulfilled, her statements to Sgt. Hughes that she braked and hit the motorcyclist can be used by Sgt. Hughes in the formation of her grounds.

[255] At least part of the accused's roadside utterance had nothing to do with any legal obligation to report an accident. The accused apologized to Sgt. Hughes. She said "I'm sorry" to Sgt. Hughes. The accused herself agreed that this apology had nothing to do with the HTA and any statutory obligation to report a collision. (Oct. 10/14 transcript, page 5, lines 13-16)

[256] I agree with the Crown that the only reasonable inference that can be drawn from the apology alone in the context in which it was said is that the accused hit the motorcyclist. This apology alone made while the accused stood by her own truck with a motorcycle wedged under the front bumper gave Sgt. Hughes the grounds to believe that the accused was the driver, without the accused's explanation as to how the collision had taken place. Sgt. Hughes did not require the accused to identify herself as the driver to believe on reasonable grounds that she was. Given the circumstances and observations made at the roadside, the inference that the accused was the driver of the truck was virtually inescapable.

Reasonable Grounds for Breath Demand

[257] Because I have found that the Sgt. Hughes had the reasonable and admissible belief that the defendant was the operator of the motor vehicle that rear-ended the motorcycle, in my view, she had more than sufficient grounds to make the breath demand.

[258] The existence of reasonable and probable grounds imports both an objective and a subjective component. Section 254(3) of the Criminal Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this belief. See R. v. Bernshaw, [1994] S.C.J. No. 87 254 at para. 48, and R. v. Rhyason, 2007 SCC 39, [2007] S.C.J. No. 39 at para. 12.

[259] The "reasonable grounds to believe" formulation in s. 254(3) applies to the impairment of that person's ability to drive. Further, the test has both subjective and objective components: R. v. Censoni (2001), 22 M.V.R. (4th) 178 (Ont. S.C.), at para. 32. As said by Provincial Court Judge MacDonnell (as he then was) in the oft-quoted case of R. v. Cooper (1993), 46 M.V.R. (2d) 231, at paras. 12 to 14:

This provision [s. 254(3)] bestows a significant power upon a peace officer to interfere with the liberty of the citizen. It requires, however, as preconditions to [the lawful exercise of] the grant of power, that the officer form a particular belief, and that the belief be based on reasonable and probable grounds. ...

[Applying the approach to arrest powers endorsed by the Supreme Court in R. v. Storrey (1990), 53 C.C.C. (3d) 316], the question to be addressed is whether, on the basis of the record before the court, a reasonable person placed in the position of [the arresting officer] could conclude that there were reasonable and probable grounds to believe that the accused's ability to operate a motor vehicle was impaired by alcohol.

[260] As said by Hill J. in R. v. Censoni, supra, at para. 43:

Reasonable grounds in the context of a s. 254(3) breath demand is not an onerous threshold. It must not be inflated to the context of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom.

[261] In R. v. Bush, 2010 ONCA 554, [2010] O.J No. 3453 (Ont.C.A.) Durno, J, states at paras. 55-56 as follows:

55 In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of the officer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection": Jacques at para. 23; also Censoni at para. 43. However, it is neither necessary nor desirable to conduct an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable: R. v. McClelland, 1995 ABCA 199, [1995] A.J. No. 539 (C.A.).

56 An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed; Censoni at para. 46. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; Wang, at para. 21.

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

[263] I am mindful of the direction given by Hill, J. in Censoni, supra, where he states at paras. 44-46 as follows:

44 While a particular aspect of a police officer's roadside information, for example, observations of the driver or facts relating to the operator's driving, may deservedly achieve greater prominence in the circumstances of a particular case, it must not be forgotten that reasonable grounds as to impairment to drive is essentially an opinion. As such, the belief, based on perceived facts, is frequently a compilation of a state of facts that are too subtle and complicated to be narrated separately and distinctly: Graat v. The Queen, supra at 382. It is, accordingly, somewhat antithetical to this understanding that in reviewing whether reasonable grounds objectively existed we compel a police witness to unbundle the facts contributing to the impression of driving impairment. We do so, however, only to the extent necessary to secure the comfort that the grounds are objectively supported. Sufficiently is never an examination of the articulated facts in isolation.

45 All too frequently, the defence makes submissions such as "bad driving and an odour of alcohol on the driver's breath can never amount to impaired driving" or "the cases have held that because the defendant wasn't involved in an accident" or "didn't stumble on getting out of the car" the ability to drive was unimpaired. The error of this approach is to elevate what are essentially individual factual circumstances to propositions of law. In Bernshaw v. The Queen, supra at 214, Sopinka J. stated:

The decision as to whether a peace officer believes on reasonable and probable grounds that an offence is being committed and, therefore, that a demand is authorized under s. 254(3) of the Criminal Code, R.S.C. 1985, c. C-46, must be based on the circumstances of the case. It is therefore, essentially a question of fact and not one of pure law.

46 The existence of reasonable grounds does not devolve to a simple mathematical exercise of comparing a list of factors supporting impairment to drive with a second list of factors pointing in the opposite direction. As observed by Doherty J.A. in Regina v. Golub, supra at 203:

In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable ....

[264] In the circumstances of this case and on the evidence that I do accept, I conclude that Sgt. Hughes did have sufficient reasonable and probable grounds to make the s. 254(3) demand and that not only did she possess the requisite subjective belief, but the circumstances preceding the arrest lay a sufficient foundation for an objective finding that sufficient grounds existed.

[265] The odour of alcohol on the defendant's breath, the admission of consumption of alcohol earlier that evening, the unexplained accident and the physical observations made of the defendant by Sgt. Hughes, who knew the defendant and knew what her sober appearance and demeanour was as contrasted to her condition on that night, was more than ample grounds, both subjectively and objectively, to meet the requisite standard to make a demand for a breath sample.

[266] In my view, in their totality and on the evidence of Sgt. Hughes that I accept, there were reasonable and probable grounds to arrest Ms. Edgecombe for the offence of impaired operation and to make the s. 254(3) demand. Accordingly, there is no violation of s. 8 and 9 of the Charter and that part of the application will be dismissed.

2.2: Analysis of the Breath Demand 'As Soon as Practicable' Issue

[267] An officer must make a demand for breath samples "as soon as practicable" following the formation of reasonable grounds to believe an offence has been committed under s. 253 of the Criminal Code. The demand does not have to be made as soon as possible. The test is whether the police acted reasonably.

[268] 1n the summary conviction appeal decision of R. v. Papa, [2006] O.J. No. 1497 (S.C.J.), Justice Gordon held that a14-minute delay between the arrest and breath demand was reasonable. He stated at paragraph 65 as follows:

As soon as practicable" is a more difficult concept and implies some flexibility. In R. v. Squires (2002), 59 O.R. (3d) 765 (O.C.A.), MacPherson J.A., at paragraph 31, said:

In several cases, the words "as soon as practicable" have been interpreted to mean "within a reasonably prompt time", not "as soon as possible": see R. v. Ashby (1980), 57 C.C.C. (2d) 348, 9 M.V.R. 158 (Ont. C.A.), leave to appeal to the Supreme Court of Canada refused, April 27, 1981; R. v. Phillips (1988), 42 C.C.C. (3d) 150, 4 M.V.R. (2d) 239 (Ont. C.A.); R. v. Letford (2000), 51 O.R (3d) 737, 150 C.C.C. (3d) 225 (C.A.); and R. v. Purdon (1989), 1989 ABCA 297, 52 C.C.C. (3d) 270, 19 M.V.R. (2d) 129 (Alta. C.A).

[269] He went on to state in paragraph 74 that:

Each activity engaged in required some time but not significant time. No doubt, the arresting officer did not have to do any of these items and could have simply made the breath demand and proceeded to the police station, Such, in my view, would not have been reasonable. We expect more of a police officer than simply to make an arrest.

[270] The accused was arrested at 3:03 a.m. and permitted to make a phone call to her fiancée. She was escorted to the police cruiser at 3:07 a.m., read her right to counsel and cautioned at 3:08 a.m. Immediately following the discussion about counsel, Sgt. Hughes read the breath demand at 3:11 a.m. It was submitted by the Crown that the conduct of Sgt. Hughes in the interval between the arrest and breath demand, a delay of about 8 minutes given the timing of s. 10 (b) rights, was reasonable. The breath demand was, in fact, read as soon as practicable.

[271] I agree with this. Although it was not legally necessary to allow the defendant to call her fiancée, it was an act that was allowed out of compassion for the defendant's predicament. In my view, it is akin to the loosening of the handcuffs performed by the arresting officer in R. v. Papa, supra.

[272] As well, Sgt. Hughes wanted to read the cautions, right to counsel and breath demand while seated in her cruiser rather than standing outside in the middle of a road on a bridge at an accident scene.

2.3: Failure of the Police to Obtain the Breath Sample As Soon As Practicable, in Violation of Section 8 of the Charter:

[273] In assessing whether the timing in this case is not 'as soon as practicable', I have considered counsel's submissions and reviewed the case law provided.

[274] It is incumbent on the Crown to prove beyond a reasonable doubt that the samples were taken as soon as practicable.

[275] However, not every moment has to be accounted for. The entire time period has to be looked at and it would be in error for me to focus on one single time period. The time from the defendant's arrest at 3:03 a.m. until she completed her final breath test at 6:03 a.m. was three hours, a reasonably prompt time in all the circumstances, in my opinion.

[276] As Rosenberg, J.A. states in R. v. Vanderbruggen, [2006] O.J. No. 1138 (Ont. C.A.) at paras 12-16:

12 That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. See R. v. Phillips (1988), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 1979 ABCA 286, 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen (1988), 1988 ABCA 277, 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, [1998] O.J. No. 4362 (C.A.).

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

14 Whether the samples were taken as soon as practicable in this case was an issue of fact for the trial judge. See R. v. Lightfoot (1980), 4 M.V.R. 238 (Ont. C.A.) and R. v. Renda, [2005] O.J. No. 1453 (C.A.). In my view, the Crown adduced sufficient evidence before the trial judge from which he could conclude that the police acted reasonably and that the breath samples were taken as soon as practicable in all the circumstances. In this case, there was an approximate delay of one hour and fifteen minutes from the time of the offence to the taking of the first sample. The following evidence was offered as explanation for this delay: time was taken in arresting the appellant, reading him his rights, transporting him to the station, waiting for the technician to arrive, searching the appellant, conveying the information as to the grounds for the breath demand and waiting for the technician to prepare the breathalyzer (Foley was "playing around" with the machine). There was no evidence that either the arresting officer or the technician acted unreasonably. The record only shows that they were attentive to their duties and to the need to administer the tests to the appellant as soon as practicable. There was no evidence that the officers gave unreasonable priority to any other task.

15 Given that there was sufficient evidence upon which the trial judge could conclude that the samples were taken as soon as practicable, the appellant has not shown that this court should disturb his finding.

16 To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect's blood alcohol level, should not be interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days when the breathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value and about the science underlying the presumption of identity. These provisions must be interpreted reasonably in a manner that is consistent with Parliament's purpose in facilitating the use of this reliable evidence.

[277] I find that, after a thorough review of the evidence before me and considering the submissions of counsel and the cases cited, the Crown has proven beyond a reasonable doubt that the samples were taken as soon as practicable in this case.

[278] Mr. Fazari submits for the defendant that the decision to take the defendant to the Niagara O.P.P. station was one that infringed his client's Charter rights in that she was unknowingly videotaped urinating at the O.P.P. station and that the breath room was not videotaped.

[279] Further, he suggests that the extra time taken to take the defendant to the O.P.P. detachment and to have the tests performed by an O.P.P. officer was unnecessary.

[280] Dealing with the temporal aspects of this decision, this decision resulted in an additional 11-minute delay in a process that spanned three hours from arrest to the last breath test. In the overall assessment of the time taken to complete the breath tests, I find this period to be of no significant importance.

[281] Again, this defendant was taken to the O.P.P. station to avoid embarrassment to her and to lend a degree of objectivity to the taking of the breath tests. This perhaps should not have been done, but I find it distasteful that this comfort afforded to the defendant by a colleague is now turned into a sword in this particular argument.

[282] The majority of the time in this rather lengthy delay involved facilitating contact with counsel of choice.

[283] In terms of reaching the accused's counsel of choice, Sgt. Hughes did everything she could to put the accused in touch with her first counsel of choice, Mr. Fazari. Between 3:35 and 3:50 a.m. Sgt. Hughes lodged the accused in a cell and worked on finding counsel's contact information. A call was placed to both Mr. Fazari's office and home at 3:50 a.m. The officer then placed another call at 4:20 a.m. When there was still no return call from counsel at 4:35 a.m., Sgt. Hughes asked if the accused had the name of another lawyer she wanted to call and was provided with the name of the accused's second lawyer of choice, Mr. Evans, and a message was left with his answering service immediately. Mr. Evans called at 4:40 a.m. and the accused spoke to him until 5:04 a.m. In total, 1 hour and 14 minutes was spent putting the accused in touch with a lawyer. Two minutes after she was finished receiving legal advice she was taken into the breath room for her breath tests.

[284] Sgt. Hughes acted in good faith in an effort to comply with her implementational duties under s. 1 O(b) of the Charter. The delay that resulted from ensuring that the accused's right to counsel was respected was implemented in the circumstances.

[285] Other than this delay and the extra 11 minutes required to take the defendant to the O.P.P. detachment, I find no irregular or unusual or unexplained delay that causes me concern.

[286] The defendant cites the case of R. v. Davidson, [2005] O.J. No. 3474 at para. 19-20 (Ont. S.C.J.). I agree with the Crown's analysis of that case when they state that for the proposition that a delay of 35 minutes to contact duty counsel out of fairness to the accused was unreasonable. The facts of that case are very different than those in the case at hand. Importantly, the accused in Davidson never asked to speak to a lawyer. In fact, the judge found that the accused had unequivocally waived his right to counsel. The police went ahead and called duty counsel anyway, which took 35 minutes. The delay occasioned to arrange for legal advice when that advice had specifically been waived was not justified in the circumstances and, therefore, the breath samples in that case were not taken as soon as practicable.

[287] In all the circumstances, I find that the tests were taken as soon as practicable and, although the Crown cannot rely on the presumption of identity because the tests were taken outside of the two-hour time window, the results are admissible and subject to the opinion of the toxicologist in this case.

2.4: Analysis of the Violation of Sections 7 and 8 of the Charter as a Result of Video Surveillance of the Applicant, Including Her Use of the Toilet:

[288] The applicant argues for a stay of proceedings for a breach of her ss. 7 and 8 Charter rights as a result of the videotaping of her using the toilet in the cell during her detention prior to her giving her breath samples. She also submits that, alternatively, the breath tests should be excluded as a result of these breaches.

[289] While awaiting a call back from counsel, the Applicant was lodged in a cell which was equipped with a video camera which recorded all of her activities while being detained. At no time prior to her detention in the cell was the Applicant advised that her activities were being video monitored and/or video recorded. There were no signs in the cells or in the area that it was being video recorded. The O.P.P. detachment did not follow its own procedures with respect to video recordings of the cells.

[290] Sergeant Borden testified that the reason the cells are video recorded is for safety concerns. However, in this case, the Applicant was searched, she was cooperative, polite and, as such, there were no safety concerns. What is more disturbing is the fact that the Applicant was handed a telephone through the cells with an extension cord. If the O.P.P truly had safety concerns, the Applicant would not have been permitted to use the telephone with the cord at the time.

[291] At one point during her detention in the cell area, the Applicant pulled down her shorts and underwear in full view of the camera, exposing her buttocks and used the toilet which was in the cell. Her use of the toilet was video recorded and has been disclosed to the defence. Due to the fact that the Applicant is employed as a Niagara Regional Police officer, holding the rank of Sergeant, the presentation of this video in these proceedings, and the continued existence of this video recording, is argued to have caused her and will continue to cause her stress, anxiety, embarrassment and trauma.

[292] The Applicant submits that although she was in custody, she had an expectation of privacy, particularly in respect of the use of washroom facilities. She was a police sergeant and a cooperative detainee charged with non-violent offences that did not raise concerns that she may be secreting contraband on her person. No justifiable safety concerns existed in respect of the Applicant's detention. It was not necessary for the Applicant's safety, nor that of the police, to observe and record the Applicant using the toilet, fully exposed to the camera. The fact that the bathroom activities were recorded was extremely degrading and contrary to human decency.

[293] At no time did the police advise the Applicant that she was being videotaped. There were no signs posted to advise the Applicant that she was being video recorded. The police did not specifically advise the Applicant that her activities inside the police cell were being videotaped. The Applicant was unaware there was a video camera in the police cell she was placed into. When Edgecombe discovered from the disclosure that her use of the toilet had been recorded she felt, humiliated, upset, disgusted and ashamed.

[294] In R. v. Wong, [1990] S.C.J. No. 118 at para 10, the Supreme Court of Canada held that video surveillance could, in appropriate circumstances, constitute a search within the meaning of section 8 of the Charter, but that result would only follow where the person who was the object of the intrusion had a reasonable expectation of privacy:

I noted above that the Court of Appeal, while not taking issue with the proposition that video surveillance could, in appropriate circumstances, constitute a search within the meaning of s. 8 of the Charter, held that that result would only follow where the person who was the object of the intrusion had a reasonable expectation of privacy. On the facts of this case, the court concluded that there was no such expectation. It is on this question as to what constitutes a reasonable expectation of privacy that I part company with the Court of Appeal for I am unable to reconcile its conclusion on this point with the approach since taken by this Court in R. v. Duarte, supra.

[295] The Crown on the other hand argues that Edgecombe, as a result of her experience as a police sergeant, was well aware that most prisoner cells are videotaped and monitored. Indeed her own station monitors and records activities in prisoner cells.

[296] As well, the Crown argues that the accused acknowledged that someone could easily have opened the door to the cell area at any moment while she was using the toilet; that regardless of whether or not you are on camera, when you are a detainee at a police station you are watched.

[297] Further, the accused had a pillow available to her in the cell if she had wished to cover herself in the event that someone did enter the cell area unexpectedly.

[298] With respect to the humiliation that the Applicant is said to have suffered at the knowledge that her act of urination was recorded on the cell video, the Crown states that here the video recording of the accused in her cell was disclosed to the defence at their request. Further, it was a defence decision to play the video at trial; it was not played by the Crown. The Court could easily have been made aware of the video's contents by way of an agreed statement of fact, for instance, rather than playing the video in open court - which was the major source of embarrassment for the accused. Finally the Crown states that I suggested a ban on publication of the video so that it would not appear on the evening news which both the Crown and defence agreed to.

[299] It would be appropriate to comment on the credibility of the defendant as I found her while testifying on the blended voir dires and the trial proper.

[300] I did not find the defendant to be a credible witness at all during her testimony. Her evidence seemed extremely self-serving at all times and tailored to the situation at hand. Her explanations for virtually every sign of impairment observed by other officers on the evening of her arrest, all of whom knew her and had worked with her in a sober state, I found questionable and designed to consistently put herself in the best position before this Court. Her explanation for her unsteadiness on her feet while walking was that could have been because she suffered a knee injury several years earlier, however she admitted that she can't recall if her knee was giving her any problems on the evening of the arrest.

[301] By her own account, she had consumed at least 60 ounces of beer that evening while the individuals observing her had consumed none.

[302] She was evasive at times in her cross-examination. The accused was so focused at trial on trying to convince the Court of her sobriety while driving that night that it took multiple questions in cross-examination for her to acknowledge that if her blood alcohol concentration (BAC) was 150 mg/100mL she should not have been driving - that legally it was an offence regardless of how she felt subjectively. The following exchange in cross-examination illustrates her evasiveness, in my view, and should be reproduced in its entirety commencing at page 8 of the October 10, 2014 transcript;

MS. GARBATY: Q. Assuming that the – you've had a chance to look at the toxicology report in this case, correct? Reading back your breath results at the time of driving?

A. No.

Q. Well, okay then I'll tell you that your reading, when read back to the time of driving or at the time of around, approximately 2:45 a.m., was 150 milligrams of alcohol in 100 milliliters of blood. You're not telling the court that's the first time you're hearing that, are you?

A. I'm sorry, I thought you were referring to the toxicology report. Are you talking about the breath test sample?

Q. Well, I appreciate that the breath test, one of your readings was in fact 150, correct?

A. Yes.

Q. But because of the timing of that we had to read it back to the approximate time of the collision, correct?

A. Um, that's correct.

Q. Okay.

A. But if you're talking about the actual report though I…

Q. Haven't looked at that.

A. …I haven't look at that, so.

Q. Okay. You'd agree though, assuming that that is correct, and that your readings were around 150 milligrams percent at around 2:45 a.m., it's a pretty high reading, correct?

A. Um, it depends. It could be high for some and low for others, but.

THE COURT: Keep your voice up please.

A. I'm sorry, um.

MS. GARBATY: High for some, low for others is what I think you just said, correct?

A. Yes, yes.

Q. Okay. So in your mind is that, is that a big number for you or it's not a big number for you?

A. I don't know. I've never been in a situation like this before where I've had to provide a sample.

Q. Okay. Well, you've arrested hundreds of people before for drinking and driving, correct?

A. I've dealt with a lot of impaired cases, not specifically arrested them.

Q. Okay. You've dealt with them as the breath technician?

A. Yes.

Q. And I imagine that charges have been laid in plenty of cases you've been involved in where readings are much lower than 150, fair?

A. In some cases, yes.

Q. At that point in your life are you drinking heavily?

A. No.

Q. So at that point in your life, it's not as if you were drinking a lot of alcohol every day, correct?

A. That's correct.

Q. You'd agree that regardless of whether it's a big number for some, a low number for other people, if that's the number, if that's the minimum level of alcohol that was in your system at the time you're driving, you shouldn't have been driving, that's fair, right?

A. Not exactly, no. Some people have tolerance and if they have tolerance at different levels they don't even show any signs of impairment over 200. So I can't, I can't attest to that fact.

Q. Okay. Well let's break that down for a moment. In terms of the Criminal Code, you shouldn't have been driving, that's pretty clear, right?

A. It is over .80, yes.

Q. Right, okay so that we've established. Now in terms of tolerance, are you saying that you had a really high tolerance for alcohol at that point in your life?

A. I've never tested my tolerance levels so I can't tell you what my tolerance level is. You asked if, if that, if that's an impairment level and it's not specifically an impairment level. That's what I was answering to.

Q. Okay. Well, let's be more specific then. If that was your reading at that point, June of 2012, 150 milligrams of alcohol in 100 milliliters of blood, you shouldn't have been driving that night, fair?

A. For being over .80, I didn't feel impaired.

Q. So is that a yes?

A. No, I said to blow over….

Q. The question is should you have been driving?

A. I didn't know what my reading level was that night, so I couldn't tell if I was over .80.

Q. In hindsight….

A. In terms of it, in hindsight, now that I know what my readings are, yes because my readings were over .80.

Q. Right. Shouldn't been driving, right?

A. But I didn't have any way of knowing that at that night that I was over .80.

Q. Because you felt fine?

A. Yes.

Q. You know from your training as a qualified Intoxilizer technician and from years of being involved in taking breath tests, I'm sure, that there are many experts, most I would say that say that impairment of the ability to drive begins at about 50 milligrams of alcohol in 100 milliliters of blood. You're aware of that, right?

A. I'm aware of that, yes.

Q. Notwithstanding that though, you're saying someone could be at a level of 150 and not impaired, that's your opinion?

A. I've actually seen people who have been over 200 and I didn't believe they were impaired.

Q. But it's the ability to operate a motor vehicle that we're talking about, that's the impairment, not just being intoxicated, right?

A. I wasn't talking – I was actually talking about the impaired.

Q. Okay, so….

A. Not intoxicated. They had no signs or physicals and when you do the reading you're surprised that they're as high as they are.

[303] I as well find it suspect that a qualified breath tech such as the accused would have taken multiple attempts to provide suitable samples of her breath into an instrument that she was trained to operate. Indeed on the evidence of Constable Massie, which I found to be very credible and reliable, it took her a total of 22 attempts to provide two suitable samples of her breath, 9 for the first sample and 13 for the second sample, which caused Constable Massie to have to caution her about the ramifications of failing to provide a proper sample of her breath and the charge that could emanate from that.

[304] Her evidence of how the collision happened defies belief. She states that she looked down briefly when her cell phone made a noise that she thought was a text and when she looked up she was quickly approaching the motorcycle. This momentary inattention would not explain how she so quickly overtook the motorcycle from the position that she had noticed it in before she looked down absent excessive speed and impairment of her ability to operate her motor vehicle caused by the alcohol that she had consumed that evening. I find it contrived when she postulates that the motorcycle stalled out and stopped and that her momentary inattention caused the accident.

[305] Her lack of credibility permeates all of her evidence. Not only do I disbelieve her evidence, but it also does not leave me in a state of reasonable doubt.

[306] I do not believe the defendant when she states that she was not aware that the cell area was not videotaped. The cell camera was clearly visible, she knew from her job that it was common practice to record prisoners for officer safety and for prisoner safety, and I reject her evidence that she did not know that her actions in the cell were being recorded.

[307] Even if I were to be mistaken in that finding, I would not have stayed the proceedings or excluded the breath tests and I would have adopted the reasoning and analysis of Speyer, J. in R. v. Griffin [2014] O.J. No. 2029 (OCJ) affirmed on appeal by Dawson, J. in R. v. Griffin 2015 ONSC 927, [2015] O.J. No. 611 (Ont. Sup. Ct.).

[308] I as well would have adopted the Crown's written submissions that I agree with in their entirety found at paragraphs 86 to 100 of their written submissions.

Right to Counsel in Private

[309] The defendant bears the onus of proving on a balance of probabilities that her s. 10(b) Charter right was breached in that she did not have an opportunity to consult with counsel in private.

[310] Again, I do not find the applicant's evidence credible when she states that she felt that she had no privacy while consulting with counsel. It does not even rise to convincing me on the balance of probabilities test.

[311] Although she testified that she felt that she had no privacy, the cell video which is Exhibit 7 shows that the door to the breath room and the office was closed at all times during her conversation with counsel.

[312] Constable Massie testified that the door is a heavy steel door and when closed you cannot hear anything in the cells unless it is yelled out. The accused does have a soft voice and had to be reminded to speak up several times by me during the trial as I could barely hear her when she was only three feet away from me.

[313] Sergeant Hughes as well testified that the door was closed when she was provided with the phone to speak to counsel.

[314] The defendant did not look out of the cell at any time to see if anyone was in the vicinity or if the door to the public area was open or closed.

[315] She spoke to counsel for 24 minutes, and although I have been provided with an affidavit from her counsel Mark Evans outlining why he thought she was not exhibiting any signs of impairment or slurring of speech, there is no mention in that affidavit of her complaining about a lack of privacy which I would have expected her to do in the circumstances. She is an experienced police sergeant who one would have expected would be more than familiar with an accused's entitlement to privacy while consulting counsel. Her absence of complaint until the trial strikes me as contrived.

[316] I reject her evidence that she even felt that she did not have privacy when consulting counsel and accept the evidence of Constable Massie and Sergeant Hughes that the door was closed, she could not be heard and that she was afforded privacy.

[317] In R. v. Deveau, [2013] O.J. No. 5424 (OCJ) affirmed at [2014] O.J. No. 3034 (Ont. Sup. Ct.), Harpur, J. cites very similar conditions in that case. He states commencing at para 31:

31 The evidence on this point comprised the video recording of Ms. Deveau's stay at the Barrie O.P.P. detachment, as well as her voir dire evidence and that of P.C. Harrison, P.C. Crowe and Sgt. Morris. All of these indicate that the means by which Ms. Deveau was permitted to speak to duty counsel after her request to do so was a telephone located on a windowsill outside the bars of her cell, the hand piece of which was passed to her through the cell bars. P.C. Harrison's uncontradicted evidence was that he had exited the cell and that the steel door to the cell from the detachment corridor was closed when she was on the phone. Ms. Deveau said she was able to hear police officers talking beyond the steel door between her cell and the corridor at the time of her call. P.C. Harrison said he has never been able to hear the voice of an occupant of the cell through the steel door unless the occupant is yelling.

32 The detachment had an audio monitor of Ms. Deveau's cell as well as the video camera. The video camera both monitors and records. Barrie O.P.P. was employing civilian guards -- male or female -- for cell monitoring in November 2011, although on the morning of November 19, 2011 only P.C. Harrison, P.C. Crowe and a female officer, P.C. Stringer, were present at the detachment. The O.P.P. policy described by Sgt. Morris is to ensure that the audio monitor is off during calls with legal counsel. No evidence was led to the contrary. The camera, however, recorded Ms. Deveau as she participated in her call with duty counsel.

33 There are signs posted within the detachment, including one in the main cell area, which say "Notice. These cells are monitored by closed circuit audio/video equipment". P.C. Harrison said he gave this information to Ms. Deveau. Ms. Deveau testified that she was unaware of this information.

34 Mr. Lent submits that, even if I find that Ms. Deveau was given audio privacy during her call, the fact that her call was both video monitored and recorded establishes a breach of her right to privacy in her consultation with counsel. The defence relies on R. v. Keast, an unreported decision of the Ontario Court of Justice released on November 7, 2006, in which Pugsley, J. made the following observations:

It is perhaps not unreasonable to maintain an ability to check on a defendant's condition while he speaks to counsel to make sure he or she is safe. Doubtless some defendants are in a state of impairment such that they could injure themselves and require help. Audio privacy must of course be present, and the call must be on an unmonitored and unrecorded telephone line. What happened here was different, an apparent practice of video routine recording, and monitoring of a private telephone conversation such that its use as evidence in the case becomes inevitable. This is no longer a private setting, and the right to consult with counsel in private has been breached by the police. Privacy is not a difficult concept for most people to contemplate. Being continually video recorded while doing something is the antithesis of privacy.

35 Mr. Peters for the Crown counters with the decisions of the Ontario Court of Appeal in R. v. Cairns, [2004] O.J. No. 210, and of the Ontario Court of Justice in R. v. Sirelpuu, [2011] O.J. No. 208 and R. v. Hume, 2013 ONCJ 380, [2013] O.J. No. 3243. Mr. Peters' submission is that an applicant must prove on a balance of probabilities his or her reasonable belief at the time that his or her privacy was incomplete. He submits that Ms. Deveau has provided no such proof.

36 Certainly, Cairns, Sirelpuu and Hume hold that a reasonably perceived lack of privacy can constitute a s. 10(b) breach. However, these cases also establish that an actual, even if unperceived, lack of privacy may equally violate s. 10(b).

37 Here, Ms. Deveau testified that she felt her privacy to be incomplete in the sense of concern about the audibility of the sound of police officers' voices outside cell. She said this made her feel uncomfortable speaking to duty counsel. The record does not suggest that she mentioned any concern at the time or that she believed her own conversation with counsel could be heard. She testified that she was unaware until after her release from custody that she had been video monitored and recorded during the call.

38 Mr. Lent submits that the facts of the sound permeability of the cell, the video monitoring and recording and the possibility of audio monitoring have established actual lack of privacy.

39 I do not agree. P.C. Harrison said he consciously closed a steel door and stayed at a distance from Ms. Deveau's cell to give her privacy. He said he was unaware of the possibility of audio monitoring. Sgt. Morris said that audio monitoring of Ms. Deveau's cell was possible but that police policy was to ensure that it was turned off during calls with counsel. No evidence was led that this was not the case. Without contradiction, Sgt. Morris described the cell video monitoring procedure as designed primarily for prisoner safety, cell damage and loss-of-evidence concerns. He said the video recording procedure was designed for officer misconduct and disclosure issues. He said that neither was an evidence-gathering tool. I find no basis here to find, as the Court did in Keast, that the O.P.P. video monitoring of Ms. Deveau on November 19, 2011 involved bad faith.

40 I do accept that the conditions in which Ms. Deveau spoke to duty counsel were less than optimal. I also accept that the Crown runs a considerable risk to its prosecutions where either full audio and visual privacy are not afforded to a prisoner for this important step in the procedure or where the prisoner ultimately provides proof of having been constrained in discussions with counsel. However, I do not regard the evidence of discomfort from hearing a police officer's voice during Ms. Deveau's counsel call, together with the unperceived fact of potential monitoring and recording by a camera placed and activated for security purposes, without more, to establish a breach of her s. 10(b) rights. There can be no exclusion of the Intoxilzyer results or a stay on this basis

[318] Similarly, in this case, even if I were to accept that the Defendant could hear officers' voices during her consultation with counsel, which I do not, this without more is not sufficient, in my view, to create a breach of her s. 10(b) rights. I do accept the officer's evidence that the door was closed and that she could not be heard by anyone when the door was closed.

Breath Tests Not Videotaped

[319] There is no obligation on police to videotape the breath testing procedure. The breath testing procedure in this case was never videotaped. It is not a situation where video was lost or destroyed; the video simply never existed. It may be best practices, but at the time of this arrest there was no authority that breath tests had to be videotaped.

[320] In R. v. Piko, [2000] O.J. No. 3605, (Ont. Sup. Ct), Durno, J. on a summary conviction appeal involving police failure to tape a breath room proceeding that resulted in charges of failure to provide a sample, stated at para 6:

Mr. Price argues the failure to videotape violated Mr. Piko's rights under sections 7 and 11(d) of the Charter. The trial judge found no violations noting there was no negligence on the part of police, the officers were under a statutorily imposed obligation to take the samples as soon as practicable and no corresponding obligation to videotape. There is no basis upon which to interfere with the conclusions of the trial judge. This is not a case where police lost or destroyed evidence. Here the evidence never existed. While the trial judge would have benefited from a tape of the Appellant's condition, comments and efforts at providing a sample, there is no requirement the proceedings be recorded. Absent police negligence regarding evidence which they possessed or a deliberate avoidance of recording when the facilities were available there was no Charter violation.

[321] The defendant argues that the case of R. v. St. Onge-Lamoureux, 2012 SCC 57, [2012] S.C.J. No. 57 (S.C.C.) now requires that breath tests be videotaped. I note that this case is subsequent to the Applicant's arrest.

[322] While the Defendant argues that the failure to record the breath room interactions hurts the Defendant's case, it is mere speculation, in my view. It is just as possible that a video and audio record of the breath room interactions could have hurt the defence by corroborating the evidence given by Constable Massie and Sergeant Hughes.

The "Over-Holding" Issue

[323] Section 9 of the Charter states: "Everyone has the right not to be arbitrarily detained or imprisoned."

[324] The Applicant alleges that her detention for a further 4 hours after the completion of the breath test violates this right and the appropriate remedy is a stay of proceedings.

[325] Section 498(1) of the Criminal Code describes circumstances under which an officer-in-charge "shall", as soon as practicable, release a person who has been arrested and detained without a warrant, in circumstances similar to those faced by the Applicant. Section 498(1.1) provides that an officer-in-charge shall not release a person to whom s. 498(1) otherwise applies if that officer believes "on reasonable grounds" that either detention is necessary in the public interest or that the question of release from custody should be dealt with under another provision having regard to all of the circumstances, including the need to establish the identity of the accused, to secure or preserve evidence, to prevent the continuation or repetition of the offence or the commission of another offence, to secure the safety of any victim or witness to the offence or to address a concern about attendance in court.

[326] In this case, I find as a fact that the Defendant was detained so that a senior officer, Staff Sergeant Woods, could continue and complete the investigation to ensure that all evidence could be acquired to assist the police in the investigation of this case. He was a senior officer to Sergeant Hughes and she felt that she could not release the accused until she had spoken to Woods.

[327] Because of her position as a Sergeant with the Niagara Regional Police Service, I do not find it unusual to have an officer senior to her conduct an interview to ensure that all appropriate steps have been taken. The fact that Sergeant Hughes was of equal rank to the defendant reasonably allows the police to take the position that the investigation should be concluded by an officer of senior rank to ensure that it was done properly.

[328] Woods needed time to get up to speed on the case and get to the station and then to conduct the interview with the defendant. The time to do this was not unnecessarily long, in my view.

[329] Were I to be found in error on this point, the only remedy that I would have entertained would have been to exclude the statement given to Staff Sergeant Woods. Since I am able to find beyond a reasonable doubt that the Crown has proven all the essential elements of impaired operation and over 80 without relying on that evidence, it would have had no impact on my findings in this trial.

Voluntariness of the Statement to Staff Sergeant Woods

[330] The Crown needs to prove that the statement given to Staff Sergeant Woods was given voluntarily and must prove this beyond a reasonable doubt. In my view, they have done so.

[331] The record indicates that her contact with any officers prior to speaking to Staff Sergeant Woods resulted in no promises, threats or inducements. The Defendant does not argue that it did.

[332] The Defendant argues that she felt compelled to give a statement because she thought it was part of a Police Services Act proceeding. I disbelieve her evidence in this regard and I find that under no time was she under that misapprehension.

[333] Viewing the statement shows that Staff Sergeant Woods initially advised her that the charges would be impaired and over 80 simpliciter rather than causing bodily harm.

[334] He gives her the primary and secondary police cautions, as well as her right to counsel again even though she had already spoken to counsel.

[335] He then went on to state that, "Obviously you don't have to talk to me if you don't want, but I want to give you the opportunity to give me your side of what took place." (Exhibit 9b - Transcript of interview, page 4)

[336] These further excerpts from the Crown's written submissions I accept and adopt as my reasons.

[337] The tone of the interview was friendly - in no way can it be said that the interview was conducted in an oppressive atmosphere. The accused answered some of his questions, but was evasive regarding others - which was her right - such as when she was asked about the amount of alcohol she drank that night. Although she had every right to pick and choose what she wanted to say during the police interview, the fact that she chose not to answer certain questions is telling when determining voluntariness of her statement.

[338] The accused attempted to maintain at trial that she did not realize that the interview with Det. S/S Woods was an investigative interview that related to her criminal charges. She testified that she thought it was a policing standards interview where she was compelled to answer any and all questions. She said she knew nothing about the police standards process and therefore had no idea what facts might or might not be relevant. She struggled at trial, therefore, to explain why she would not answer certain questions during the interview because if she had truly believed that she was compelled to answer any and all questions, she would not have been evasive. With respect, her attempt at trial to explain the reason for her evasiveness was simply not credible. The only reasonable inference to be drawn from the context of that interview is that she knew she was involved in a voluntary interview and did not have to say anything.

[339] One need only watch the interview and it becomes abundantly clear that the accused's statement was voluntary. The accused acknowledged multiple times throughout her interview with Det. S/S Woods that what she said could be used against her. Numerous exchanges throughout the course of the interview highlight this fact, for example:

• "I know all this is used in court" (Exhibit 9 b - Transcript of interview, page 5)
• "I know I'm basically sinking myself" (Ibid., page 7)
• "MW: Ok um had you been drinking CE: Do I really have to say that on video MW: You you know you know the rules CE: I know the rules MW: It's up to you right I just have to ask the questions CE: I know, you do have the readings" (Exhibit 98 - Transcript of interview, pages 9-10)

[340] As a result of her training, experience and status, the accused was better equipped than the vast majority of suspects to withstand any encounter with Det. S/S Woods that day. She had the benefit of the hours prior to this interview to reflect on what had transpired, how she might be challenged and how she might respond - she was not taken off guard.

[341] The accused eventually agreed under cross-examination at trial that she realized at the time that everything she said to Det. S/S Woods could be used against her criminally. She agreed that her comments contained within the interview itself were an acknowledgment that she knew she did not have to say anything to Det. S/S Woods that night. (Oct. 10/14 transcript, pages 35-36; page 49, lines 27-29)

[342] This statement was obviously directed to the criminal prosecution and there could have been no doubt in the Defendant's mind that it was, despite questions that she had made to Staff Sergeant Woods about what could be the professional implications for her of these charges.

Time of Driving

[343] I agree and adopt the following submissions from the Crown found in their written submissions.

[344] The applicant cites the case of R. v. Jackson, [2014] O.J. No. 686 (C.J.) to support the submission that the Court cannot rely on the toxicological report of Dr. Mayers because it assumes an incorrect time of driving of 2:45 a.m. The case at hand is distinguishable from the situation in Jackson because in Jackson the Crown led no evidence as to when the accident may have actually occurred in relation to the dispatch call received by the investigating officer (see paragraph 30).

[345] In this case I have testimony from Mr. Aldaghaim that less than 5 minutes passed between the sound of the crash and the 911 call, and about 10 minutes between the sound of the crash and police arrival. The time estimates given by Mr. Aldaghaim are obviously just that - estimates. He did not purport to have had a stopwatch with him. He did his best to provide the Court with approximate times. The Court can reasonably infer from his evidence, therefore, that the approximate time of the collision was around 2:40 a.m.

[346] The accused was also observed in care and control of her vehicle following the collision. Mr. Aldaghaim testified that he heard the engine of her truck revving while she was seated in the driver's seat at some point after the collision. Ms. Clemens testified that the accused was attempting to reverse her vehicle before police arrived on scene.

[347] Further, I am not faced with a situation where the obtained lntoxilyzer reading is 90 mg/100 mL and, therefore, the difference in a BAC over a 10-minute period might actually mean something. Here, the minimum BAC of the accused at approximately 2:45 a.m. was 150 mg in 100 mL of blood. Whether the collision occurred at 2:35 a.m. or 2:45 a.m., it ultimately makes no appreciable difference in my mind.

[348] The toxicological assumptions upon which the opinion was given, I find, have all been proven beyond a reasonable doubt.

[349] The defendant's evidence at trial indicates no bolus drinking prior to leaving the last drinking establishment.

[350] She admits that she was not consuming any alcohol while driving or after the collision.

[351] The assumption that she weighed 160 pounds at the time of the accident as found in the Alcohol Influence Report that Dr. Mayers used in his opinion is one that I can reasonably infer came from a question of Constable Massie to the Defendant and that she gave that information to him. Otherwise, breath technicians would be involved in the dubious game of guessing the Defendant's weight and should be employed at a carnival, not with a police department.

[352] It is interesting to note that at trial the Defendant testified that she weighed 155 pounds at the time of the incident. Then her counsel argues that the weight "estimate" in Dr. Mayer's report is erroneous. This again is, in my view, a subtle yet obvious attempt at manipulation by the Defendant that hurts her credibility and her case overall.

[353] I am satisfied that her weight at the time of the accident was 160 lbs. as recorded in the Alcohol Influence Report completed by Constable Massie. I reject her evidence that she was 155 lbs. at the time of the incident.

Impaired Driving

[354] In R. v. Stellato, [1993] O.J. No. 18 (Ont.C.A), Justice Labrosse set out the test for proof of impairment at paragraph 14:

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

[355] These reasons were approved of by the Supreme Court of Canada and have been the benchmark test for proof of impairment for over two decades in Canada.

[356] After examining all of the evidence in this trial and making the credibility findings that I have, I find that the defendant's explanation for all of the signs of impairment made by Constables Noble and Massie, and Sergeant Hughes to be not believable. I find that I do not believe her evidence, nor does it leave me with a reasonable doubt.

[357] Finally, applying the third test of W.D., I am satisfied that the Crown has proven beyond a reasonable doubt that the defendant was driving that evening while her ability to operate a motor vehicle was impaired by alcohol.

[358] Certainly all of the observations of impairment have been skilfully countered in the defence's written submissions for plausible explanations. The condition of her eyes as observed could be caused by the fact that she was tired after working the shift that she did and that she wore contacts.

[359] The walking over 20 to 30 meters to Sgt. Hughes cruiser where indicia of impairment were observed could have been the result of the road condition, wearing of sandals or the previous knee injury.

[360] The fumbling with the phone could be a result of difficulties with the battery.

[361] The accident could have been caused not by her delayed reaction caused by impairment to the developing situation of the motorcycle which was totally visible to her, slowing down or stopping, but by her momentary inattention of a couple of seconds while glancing at her cell phone.

[362] Her 22 attempts to provide two suitable breath samples could have been as a result of her upset.

[363] Her slurred speech and lack of eye contact could have been because she is a generally soft-spoken person who was nervous in the situation.

[364] Her movement of the injured motorcyclist to the edge of the road could have been because of safety concerns for him or because she decided to move a potentially seriously injured person when she should have waited for paramedics.

[365] Her failure to call 911 could have been because of the supposed dead cell phone, and her failure to ensure that anyone else was directed by her to call 911 may have been an oversight caused by the stress of the situation.

[366] The odour of alcohol on her breath is only an indicia of consumption, not impairment.

[367] Her attempt to reverse her truck off the motorcycle was not addressed by defence in their submissions other than generally that Katherine Clemens was not a credible witness and that I should not accept her evidence. However I do accept her evidence and this leaves me with no doubt that the defendant tried to reverse off the motorcycle. I can find no explanation for this other than that it shows a poor lack of judgment at the time, in my view caused by her impairment of her ability to operate a motor vehicle.

[368] Her leaning against her truck while speaking with Sergeant Hughes was not done because she needed a secure object to steady herself, but for some other reason.

[369] It is true that the Defendant was not alleged to have been grossly intoxicated and stumbling and falling down. All the officers that testified in this case gave examples of times when the Defendant walked normally and had no motor skill problems.

[370] Constable Spano, who was the initial officer on the scene and who had brief contact with the Defendant, did not testify as to any signs of impairment.

[371] I detected a degree of discomfort particularly with Constable Noble and Sergeant Hughes when giving their evidence. Certainly it would have been difficult for them to give the opinions that they did knowing that the consequences to the Defendant could be profound from a personal and professional level.

[372] They knew her and respected her as a colleague. Yet, both of these officers who have known the Defendant and interacted with her in a professional basis for many years gave evidence that, in their opinion, her ability to operate a motor vehicle was impaired by alcohol on that evening.

[373] They gave cogent reasons and evidence supporting their opinions. For the most part, they corroborated each other in their observations.

[374] These officers gave their opinions in an unbiased but somewhat reluctant way.

[375] That carries great weight with me and, rather than examining each piece of evidence in a piecemeal basis, when looking at the evidence that I accept as a whole I am convinced beyond a reasonable doubt that the defendant is guilty of impaired operation.

[376] Constable Massie's evidence only reinforces my findings in this regard. Even though his familiarity with the Defendant was considerably less than Officers Noble and Hughes, he too proffered the same opinion and for what, in my opinion, were valid and sustainable observations and conclusions.

[377] My rejection of the Defendant's evidence explaining the indicia of impairment noted by the officers in this case and my finding that when looking at her evidence in its totality it does not leave me with a reasonable doubt, and with the final stage of analysis that, after examining all of the evidence that I do accept, I am left with the inescapable conclusion that at the time of this collision the Defendant's ability to operate her motor vehicle was impaired by alcohol, and that the Crown has proven all the essential elements of that offence beyond a reasonable doubt.

Over 80 Analysis

[378] The Intoxilyzer results are admissible in this trial.

[379] I find that the forensic report reading back the results to the time of driving is cogent and compelling. As such, I find that, as a result of my acceptance of this evidence, the Crown has succeeded in proving beyond a reasonable doubt that at the time of the collision the Defendant was operating her motor vehicle with greater than 80 milligrams of alcohol in 100 millilitres of blood on the date as alleged.

CONCLUSION

[380] For all the reasons set out above, I find that the Crown has proven beyond a reasonable doubt the essential elements of both charges in the information.

[381] The Defendant is found guilty of the offence of impaired operation of a motor vehicle and I will enter a conditional stay regarding the charge of Over 80.

Released: July 20, 2015

Signed: "Justice Stephen D. Brown"