Ontario Court of Justice

Date: 2015-08-14

Court File No.: Lindsay 14-1446

Between:

Her Majesty the Queen

— AND —

Heather Meade

Before: Justice S. W. Konyer

Heard on: August 10, 2015

Reasons for Judgment released on: August 14, 2015

Counsel:

• Ms. R. Griffin, counsel for the Crown
• Mr. B. Miller, counsel for the defendant Heather Meade

KONYER J.:

[1] Introduction

Heather Meade was stopped by police while driving eastbound on Highway 7 near Omeemee, Ontario on October 17, 2014 following a complaint called in by another motorist. As a result of the ensuing police investigation, she was charged with operating her motor vehicle with an excessive blood-alcohol concentration, contrary to section 253(1)(b) of the Criminal Code. The only issue at her trial is whether the demand for a sample of her breath into an approved screening device (ASD) made by the arresting officer was made "forthwith" in accordance with section 254(2)(b) of the Criminal Code.

[2] Charter Issues

The defence argues that the officer did not make the demand promptly upon acquiring sufficient information to give rise to a reasonable suspicion that Ms. Meade was operating a motor vehicle with alcohol in her body. The defence therefore argues that Ms. Meade was arbitrarily detained and that her right to counsel was infringed as a result of the failure of the police to make a timely demand that she provide a sample of her breath into the ASD. As a remedy for these breaches of her rights under sections 9 and 10(b) of the Charter, the defence seeks an exclusion of the results of the analysis of her breath by the ASD. Without this evidence – the fail reading on the ASD – it is argued that Ms. Meade's arrest and continued detention was arbitrary, and that the police lacked reasonable grounds to seize and analyze samples of her breath. As a remedy for these alleged breaches of her section 8 and 9 Charter rights, the defence seeks the exclusion of the results of the analysis of her breath samples taken at the police station by an approved instrument.

[3] Procedural Framework

Through agreement between counsel, this matter proceeded by way of a blended Charter application and trial. If the Charter applications are not successful, the defence concedes that the Crown has proven the case against Ms. Meade. The only witness to testify on this matter was the arresting officer, P.C. Cronk, although the Crown also introduced a copy of the police radio calls between the OPP dispatcher, P.C. Cronk, and other involved officers. The following is a summary of the evidence that is relevant to the Charter issues that I must decide.

Summary of the Evidence

[4] Initial Dispatch Call

At 9:42 pm on October 17, 2014, the OPP dispatcher, located in the town of Smiths Falls, placed a call on the air for P.C. Stevenson, who was known to be on patrol in the Lindsay area, concerning an erratic driver who was proceeding eastbound on highway 7 just east of Lindsay. Although the call was placed to P.C. Stevenson, all on-duty OPP officers would have been able to hear the call. This included P.C. Cronk, who was at the time involved in a call north of the village of Omeemee, which is located on Highway 7 east of Lindsay. Upon hearing the call, P.C. Cronk advised the dispatcher that she may be in a position to intercept the erratic vehicle at Omeemee.

[5] Vehicle Description and Pursuit

P.C. Cronk then proceeded towards Omeemee from the north, while P.C. Stevenson proceeded in pursuit of the vehicle from Lindsay, to the west. The OPP dispatcher continued to provide information about the vehicle which was being relayed to her by a civilian following the vehicle. A description and partial licence plate was provided. The vehicle was said to be swerving into oncoming lanes of traffic, braking suddenly and generally driving in an erratic manner. The OPP dispatcher characterized the complaint as a "possible 253", meaning a possible impaired driver.

[6] Traffic Stop

P.C. Cronk was the first to catch up to the vehicle in question on highway 7 just east of Omeemee. At 9:56 pm, according to the time stamp on the OPP dispatch recording, P.C. Cronk informed the dispatcher that she had located and was pulling over the vehicle in question. P.C. Cronk testified that she stopped the vehicle, which was being driven by Ms. Meade, at 10:00 pm. She noted this time from her wrist watch, which was not calibrated with the time stamp on the OPP dispatch log.

[7] Initial Conversation at Vehicle Window

After stopping the vehicle, P.C. Cronk attended at the driver's side window. She testified that she informed Ms. Meade, the sole occupant of the vehicle, that she had pulled her over as a result of a complaint received about her driving. She testified that Ms. Meade leaned away from the driver's side window where P.C. Cronk was standing, an action that the officer found to be unusual. In response to questions, Ms. Meade informed her that she was returning from a concert at a casino in Orillia. When told of the reason for the traffic stop, Ms. Meade explained the poor driving by telling P.C. Cronk that she had been texting on her cell phone, an explanation that the officer found to be plausible as there was a cell phone in plain view in the driver's compartment. When asked if she had consumed any alcohol, Ms. Meade responded that she had not.

[8] Odour of Alcohol

P.C. Cronk testified that there was a strong smell of cigarette smoke emanating from the vehicle. She also testified that she could detect what she described as the "sweet odour of an alcoholic beverage" emanating from Ms. Meade. She described the odour as a "sweet alcohol smell, like wine or a cooler" and added that she "does not have a good nose".

[9] Request for Second Officer's Assessment

After making these observations, P.C. Cronk walked back to her cruiser with Ms. Meade's driver's licence and vehicle documentation. By the time she reached her cruiser, P.C. Stevenson had arrived on scene. P.C. Cronk testified that P.C. Stevenson "has a better nose" and that she therefore asked the other officer to go and smell the driver.

[10] Confirmation of Alcohol Odour and Admission

P.C. Cronk then sat in the front seat of her cruiser. When she looked up a short time later, she noticed P.C. Stevenson escorting Ms. Meade to her cruiser. She was informed by P.C. Stevenson that "yes, I smell it as well", following which Ms. Meade was lodged in the rear seat of P.C. Cronk's cruiser. According to P.C. Cronk's watch, the time was now 10:05 pm, or five minutes after Ms. Meade's vehicle was pulled over by P.C. Cronk.

[11] Admission of Alcohol Consumption

At this point, P.C. Cronk informed Ms. Meade that both officers had smelled alcohol on her, and asked her again if she had consumed any alcohol that evening. Ms. Meade then told her that she had consumed two drinks approximately two hours previously. In addition, once Ms. Meade was lodged in the police cruiser, P.C. Cronk testified that the odour of alcohol was more readily apparent without the odour of cigarette smoke which had been present in Ms. Meade's vehicle.

[12] Formation of Reasonable Suspicion

At this point, P.C. Cronk testified that she formed a reasonable suspicion that Ms. Meade had alcohol in her body. The suspicion, according to the officer, was based on the odour of alcohol coupled with Ms. Meade's admission that she had consumed alcohol.

[13] Search for Approved Screening Device

Once she formed this suspicion, P.C. Cronk made efforts to locate an approved screening device in order to administer a roadside screening test. These efforts included searching the cruisers that both she and P.C. Stevenson were using, and then placing a call to dispatch for any nearby officers with an ASD. From the dispatch time stamp, this call was placed at 10:03 pm. It is clear that there is a discrepancy between the time shown on P.C. Cronk's wristwatch and the time stamp on the OPP dispatch recording.

[14] ASD Demand

P.C. Lynch responded seconds later, indicating that he had an alcotest – the approved screening device used by the OPP – that he was on the road near Lindsay, and that he would proceed to the location of the traffic stop. After learning this information, P.C. Cronk then made the ASD demand. She recorded the timing of this demand in her notes as 10:09 pm by her watch, or four minutes after Ms. Meade was lodged in the rear of her cruiser. When asked if she understood the demand, Ms. Meade, who was polite and cooperative throughout, responded "yes, no problem".

[15] Right to Counsel and Caution

At 10:11 pm by her watch, P.C. Cronk informed Ms. Meade of her right to counsel. She advised the officer that she understood this right. When asked if she wished to call a lawyer, Ms. Meade indicated that she did not wish to call a lawyer at that time. Ms. Meade was then cautioned at 10:12 pm, which she also understood.

[16] Preparation of ASD and Self-Test

P.C. Cronk did not make a note of the time that P.C. Lynch arrived on scene with the ASD. The next entry in her notebook is at 10:19 pm, when she noted that she conducted a self-test with the ASD. When asked what occurred prior to the self-test, she testified that she would have obtained the device from P.C. Lynch, checked that it was properly calibrated and turned it on. The device takes a few minutes to warm up before it is ready for use. During this time she would have instructed Ms. Meade on how to provide a proper sample, then conducted a self-test. The purpose of the self-test is two-fold: to ensure the instrument is in proper working order, and to demonstrate to the subject how to provide a suitable sample of breath.

[17] Roadside Screening Test Result and Arrest

Given the tasks she had to complete before the device would have been ready for the self-test, P.C. Cronk estimated that the ASD likely arrived at about 10:15 pm. After the self-test, a suitable sample was provided by Ms. Meade, yielding a fail result. She was arrested at 10:21 pm for operating a motor vehicle with an excessive blood-alcohol concentration. Again, she was informed of her right to counsel, and this time indicated that she was unsure whether she wanted to call a lawyer. P.C. Cronk explained that she could place a call to either private counsel or duty counsel from the detachment. While en route to the detachment, a further conversation occurred about whether Ms. Meade wished to speak to counsel, at which point she stated an intention to waive this right. Once at the detachment, she ultimately signed a form waiving her right to counsel.

[18] Station Breath Samples

Ms. Meade ultimately provided two samples of her breath into an approved instrument at the station, with results that exceeded 80 mgs of alcohol in 100ml of blood.

Issues and the Law

[19] Statutory Framework and Charter Limits

Parliament has placed reasonable limits on some Charter rights in its efforts to combat the serious societal problems posed by impaired drivers. The police are empowered, pursuant to section 254(2) of the Criminal Code, to make a demand requiring a driver to provide samples of his or her breath for analysis in an ASD without reasonable and probable grounds to believe that an offence has been committed, and can detain the driver for this purpose without affording rights to counsel. As the Ontario Court of Appeal held in R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779 at para. 22: "this statutory detection and enforcement procedure constitutes a reasonable limit on Charter rights, given the extreme danger represented by unlicensed or impaired drivers on the roads".

[20] The "Forthwith" Requirement

This limit on Charter rights is, however, itself limited. The officer must make the ASD demand once he or she forms the reasonable suspicion that the driver has alcohol in his or her body: see Quansah, supra, at para. 25. The rationale for this requirement, known as the "forthwith" requirement in the language of section 254(2), can be easily understood. The procedure permits the police to infringe upon Charter-protected rights for the limited purpose of enforcing drinking and driving laws. The suspension of Charter rights must be no more than is necessary to permit the police to enforce these laws. The requirement that the police make the ASD demand "forthwith" upon forming a reasonable suspicion that a particular driver has alcohol in their body places a temporal limit on the suspension of that driver's rights.

[21] Defence Argument

In Ms. Meade's case, the defence argues that P.C. Cronk did not comply with the forthwith requirement because she should have formed a reasonable suspicion that Ms. Meade had alcohol in her body during the initial conversation at the driver's window of her vehicle. That is when the reasonable suspicion ought to have been formed, according to the defence. Counsel points to the evidence of bad driving, the fact that the dispatcher characterized the call as involving a possible impaired driver, the fact that Ms. Meade deliberately leaned away from P.C. Cronk, and the odour described by the officer as factors that ought to have compelled P.C. Cronk to form a reasonable suspicion at that point.

[22] Officer's Subjective Assessment

If P.C. Cronk in fact formed a reasonable suspicion at that moment, I agree that the ASD demand was not made forthwith. P.C. Cronk, however, offered reasons why she did not, subjectively, form a reasonable suspicion until after Ms. Meade was lodged in the rear of her cruiser. Ms. Meade offered an explanation for the poor driving which on its face was credible, she denied any consumption of alcohol, and the officer was simply unsure that the sweet odour she detected amongst the strong odour of cigarettes was alcohol. She knew that P.C. Stevenson, who she believed to have a better nose for detecting the odour of alcohol, would be arriving momentarily, and she decided to wait. It was not until Ms. Meade was lodged in the rear of her cruiser, that the odour of alcohol was confirmed by P.C. Stevenson, and that Ms. Meade admitted to consumption that P.C. Cronk was satisfied that she had a reasonable suspicion that Ms. Meade had alcohol in her body.

[23] Reasonableness of Officer's Decision

Another officer may have formed a reasonable suspicion upon speaking to Ms. Meade in her own vehicle, and might well have been able to justify this suspicion. The uncontradicted evidence of P.C. Cronk, however, is that she did not. In my view, her decision was not unreasonable. A potentially credible explanation was advanced by Ms. Meade for her poor driving. There were no other indicia of alcohol consumption present other than an odour which was masked by the smell of cigarettes, and Ms. Meade denied having consumed any alcohol. I accept P.C. Cronk's evidence that she did not believe she had the requisite grounds for an ASD demand until Ms. Meade was lodged in the rear of her cruiser, the odour of alcohol had been confirmed by P.C. Stevenson, and Ms. Meade had admitted to consumption.

[24] Judicial Deference to Police Judgment

As a trial judge, I must be cautious about substituting my opinion for whether sufficient grounds existed for the conclusion reached by the officer. As the Court of Appeal held in R. v. Smith (1996), 105 C.C.C. (3d) 58, the police in drinking and driving investigations are involved "in making a quick but informed determination of whether there are reasonable grounds to believe that the driver is impaired" [para. 12].

[25] Context of Police Decision-Making

Further, in R. v. Golub (1997), 117 C.C.C. (3d) 193, the same court stated that "in determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant" [para. 18].

[26] Application of Principles

Although Smith and Golub are both drinking and driving cases dealing with reasonable grounds to arrest a suspected impaired driver rather than reasonable suspicion to make an ASD demand, the same principles still govern a court's review of an officer's decision as to whether a reasonable suspicion exists that a particular driver has alcohol in his or her body. In short, the issue is not whether P.C. Cronk's decision in this case was the best decision, but rather whether it was a reasonable decision, given the context in which it was made. The foregoing reasons make it clear that I have found that P.C. Cronk's decision was a reasonable one.

[27] Officer's Respect for Charter Rights

Furthermore, I accept P.C. Cronk's testimony that she did not form a reasonable suspicion that Ms. Meade had alcohol in her body prior to the point where Ms. Meade was placed in the rear of her cruiser in part because P.C. Cronk appears to have been diligent in her efforts to respect Ms. Meade's Charter rights. She informed Ms. Meade of the reason for her initial detention. When she did form a reasonable suspicion, she made the ASD demand promptly. Upon learning that the arrival of the ASD would take some minutes, she cautioned Ms. Meade, informed her of her right to counsel and inquired whether Ms. Meade wished to call a lawyer. If P.C. Cronk had formed a reasonable suspicion at an earlier point, it would make no sense for her to have delayed making the ASD demand, and such an action would be inconsistent with her general behaviour towards the rights of the motorist that she was investigating.

[28] Conclusion on Forthwith Requirement

It follows from this analysis that I have found that P.C. Cronk made the ASD demand forthwith upon forming a reasonable suspicion in her mind that Ms. Meade had alcohol in her body. She made this determination at the side of the road, in circumstances where she took pains to ensure that Ms. Meade's Charter rights were respected. I am not prepared to second guess her decision, which strikes me as eminently reasonable in the circumstances.

[29] Final Judgment

Since I have found that the ASD demand was made forthwith, the Charter applications raised by the defence must fail. The results of the analysis of Ms. Meade's breath samples on the approved instrument are therefore admissible, and she is found guilty of the sole count before the court.

Released: August 14, 2015

Signed: Justice S. W. Konyer