REASONS FOR JUDGEMENT

Ontario Court of Justice Old City Hall - Toronto

Between: Her Majesty the Queen And: Victor Ortega

Counsel:

• H. How, for the Crown
• S. Heyens, for the Defendant

Heard: October 6 and December 15, 2014

Justice: Melvyn Green

A. INTRODUCTION

[1] Victor Ortega was driving in downtown Toronto on April 27, 2013. He was pulled over around 3am, ostensibly for a Highway Traffic Act (HTA) investigation. The officer's detection of an odour of alcohol led to an approved screening device (ASD) demand with which, it is alleged, Ortega (hereafter, the defendant) did not comply. As a result, he was charged with refusal to comply with an ASD demand.

[2] The defendant claims that his initial detention was arbitrary (Charter, s. 9), that he was not informed as to its reasons (Charter, s. 10(a)), that there was no lawful foundation for the officer's subsequent ASD demand (Charter, s. 8), and that exclusion of any evidence of non-compliance with the demand should follow by way of a fit remedy for these and related breaches of his constitutionally protected rights (Charter, s. 24(2)). Alternatively, the defence submits that the Crown has simply failed to prove that the defendant "refused" the demand or, expressed in constitutional terms, that his purported refusal was sufficiently "informed" to support a conviction. (No defence of "reasonable excuse" is here advanced.)

[3] As the proposed search (the ASD demand) was advanced without warrant, the Crown bears the burden of demonstrating its reasonableness. The burden of establishing the other claims of Charter violation falls to the defence, on a balance of probabilities, as does the appropriateness and scope of any remedy of exclusion. Failing constitutional relief, the Crown, as always, carries the ultimate burden of proving to a standard of beyond reasonable doubt that the elements of the offence charged are made out. Litigation of the Charter issues and the trial proper proceeded by way of a blended proceeding.

B. EVIDENCE

(a) Introduction

[4] The arresting officer (PC Seth Rietkoetter) testified, as did the defendant. Their testimony is complimented by digital video recordings (DVR) taken by two cameras in Rietkoetter's police car, one directed forward through the scout's front window and the second focused on the defendant in the backseat of the vehicle following his arrest. Material portions of the DVRs were played near the conclusion of Rietkoetter's examination-in-chief, affirmed by him as accurate, and then entered as an exhibit by way of a DVD. The DVD recording begins a few seconds before Rietkoetter first testifies to seeing the defendant's car and concludes some 52 minutes later with the defendant's release on an Appearance Notice. There is no audio track until about the four-minute mark, just prior to Rietkoetter first reading the ASD demand to the defendant. Summaries of the two witnesses' accounts follow, supplemented by reference to the video recordings where appropriate.

(b) The Arresting Officer's Account

[5] As of April 27, 2013, PC Seth Rietkoetter was a six-year veteran of the Toronto Police Service, including 18 months dedicated to the enforcement of drinking and driving laws. He was working alone early that morning, uniformed and in a marked scout. Rietkoetter was a certified operator of a Drager Alcotest 6810, an approved instrument, and had one in his police car. He had checked the device for calibration accuracy and battery power and by way of a personal breath test, and confirmed that it was in proper working order. In direct examination, Rietkoetter testified that he had performed these tests at the beginning of his shift. In cross-examination he testified that he could not recall exactly when he had checked the operability of the ASD but that he had.

[6] Rietkoetter was dispatched to the area of Fort York and Bathurst Street, in downtown Toronto, with respect to an unrelated matter. He was on scene at about 3:05am. While facing north on the south side of Front Street and waiting for a red light to change, he saw an Infinity G35 driving south on Bathurst at what he viewed as a high rate of speed (over 50 kph). The vehicle maneuvered hard from the curb to the centre lane and came to an abrupt stop at the red light on the north side of Front. Rietkoetter also testified that the Infinity was "off the line quickly" with an advanced green afforded southbound traffic. As it closely passed by him in the centre lane, Rietkoetter heard "extremely loud music" and saw four occupants in the back seat of the vehicle.

[7] Shown the DVR taken by his scout's front-facing camera as he waited for the Front Street light to change to green, Rietkoetter agreed that he could not discern images of a speeding southbound vehicle, of a car abruptly changing from the curb to centre southbound lane or of a car barely managing to stop at the red light on the north side of Front. Nor, relying on the DVR image, could he identify a vehicle on the north side of the red light as an Infinity. However, on reviewing the video he did allow that only a city bus had passed his scout while travelling in the southbound centre lane. As to his other observations, Rietkoetter insisted that his eyesight was much better than the optical or recording properties of his scout's on-board camera and that he had indeed seen everything about which he testified, including identifying the make of the oncoming car and its abrupt maneuvers, while sitting on the south side of the Front Street intersection.

[8] I have several times viewed the DVD of the images recorded through the front-facing camera in Rietkoetter's vehicle, in real-time and slow motion and on every screen dimension the technology and my office computer allow. I am certain I do not share Rietkoetter's visual acuity. I am also certain that at least some of his testimonial recall simply does not accord with what actually occurred. I appreciate that it was the middle of the night and that the quality of the video recording of the events north of the Front Street intersection does not meet Hollywood standards. Nonetheless, the movement of the oncoming vehicles and their relative speed and direction appear well displayed. Watching the DVR, I, like Rietkoetter, cannot see a southbound vehicle approach the intersection at an excessive rate of speed, suddenly change from the curb to centre lane, or abruptly stop for the red light. What is apparent, however, is that a taxi occupies the southbound centre lane. A city bus stops behind it. On the advanced green, the taxi makes a quick left turn onto Front and the bus continues south in the centre lane, closely passing Rietkoetter's still-stopped scout. Other than the east-turning taxi, no vehicle appears to rapidly accelerate with the change of the traffic light. And no vehicle other than the bus closely passes the officer's scout.

[9] Something about the Infinity undeniably attracted Rietkoetter's attention. He immediately drove north through the intersection when his light changed to green, U-turned southbound on Bathurst and pursued the Infinity which, at that point, was about 450 to 500 metres ahead of him. He says he chose to follow the car because of the overcrowded back seat. He knew this model of Infinity was equipped with seat belts for only three rear seat passengers. He believed that excess backseat passengers posed a danger if one of them was unbelted or two were sharing a single seat belt. He knew that a fully G-licensed driver could not be charged for permitting passengers to ride unbelted. He did not then know if the driver was committing any offence as he did not know the class of the driver's licence. He did, however, believe that at least one rear seat passenger was committing an HTA seat belt violation.

[10] The southbound Infinity stopped for a red light on the north side of Lake Shore Boulevard, the next major east-west artery south of Front. Viewing the DVR, I cannot discern how many passengers occupy the rear seat of the Infinity as the police car is stopped behind it at the light. According to Rietkoetter, the driver appeared to have some difficulty negotiating the intersection when the light changed. After a couple of sharp maneuvers, the driver transitioned to a lane to the right, and then into a 24-hour Esso gas station at the southwest corner of Lakeshore and Bathurst. (In cross-examination only, Rietkoetter allowed that the intersection is confusing to southbound traffic and that the defendant properly signaled before moving to the right. On my screening of the DVR, there is no conspicuously errant driving. Rietkoetter also agreed in cross-examination that he activated his scout's emergency equipment mid-way through the intersection as the driver of the Infinity signaled a right turn and before he entered the Esso station.) All the doors flung open as the car pulled up to the pump and all the occupants but for the driver "fled" the vehicle. Rietkoetter "believes" seven passengers left the car, a mix of 20-something men and women, as the defendant remained behind the wheel.

[11] In activating his emergency equipment and pulling over the Infinity, Rietkoetter agreed that he had detained the driver of the vehicle. He also agreed that he was required to provide the driver with a reason for the detention. Although not set out in his notes, Rietkoetter insisted he did advise the driver of the reasons for his detention.

[12] Rietkoetter testified he parked his scout about four or five metres behind the Infinity at 3:06am. (As recorded on the DVR, the officer actually parked his vehicle parallel to and to the immediate left of the Infinity when he followed it into the Esso station.) The driver was the last to get out of the vehicle. Rietkoetter described him as "Latin" and wearing "bar attire", with a ponytail and glasses. (I note only that the defendant, as captured on the DVR, was wearing a dark, perhaps leather, bomber jacket and a casual shirt. Likely reflecting my advanced years, this "attire" seems more suitable for a weekend shopping trip to Loblaws than an evening at an Entertainment District nightclub.) Rietkoetter says he intended to speak to the driver about his speeding, his "close to" improper stop at Front Street and the overcrowded car. He agreed he did not ask the driver any questions about the other occupants of the car. (The defendant, whose evidence I soon précis, testified he did.) Rietkoetter had neither notes nor an independent recall of pursuing any of his other intended areas of inquiry. The driver, he testified, did not exhibit any indicia of impairment.

[13] Rietkoetter agreed that a possible rear passenger seat belt infraction was the only "noticeable offence" when he decided to pull over the Infinity and that he could not ticket a driver for such offence if, as it transpired, the driver was an adult full G licence holder. Several of the Infinity's passengers had entered the gas station kiosk. Although the video does not capture any persons leaving the Infinity, a woman who appears to be one of the passengers is seen very slowly walking directly in front of Rietkoetter's scout for some seven or eight seconds very soon after he parks at the station. Whatever "fleeing" means, she was not doing it. Rietkoetter makes no effort to speak to or otherwise contact this woman. He explained that he did not pursue the passengers as his investigation of their possible HTA infractions was frustrated once they left the car. In the end, he issued no HTA-related tickets.

[14] Rietkoetter asked the driver for his ID. The driver checked his wallet without success (as the then-silent video tends to confirm) and then walked in front of the Infinity and retrieved a rental agreement from the passenger-side glove compartment. He handed it to the officer along with his driver's licence, identifying himself as Victor Ortega, the defendant. Rietkoetter, who was within a few feet, first claimed to notice an odour of alcohol on the defendant's breath at this point. This, he said, converted his inquiry into a criminal investigation. Rietkoetter also believed the defendant was "blading" his body "throughout" his investigation. He asked for and received the car key from the defendant. Rietkoetter agreed he had no legal authority to seize the key. He was motivated by a generalized safety concern arising from the Infinity's push-button ignition that, he said, could be activated by anyone in possession of the key. Regrettably, the defendant's retrieval and presentation of his documentation, the seizure of the car key and the officer's initial reaction to the purported odour of alcohol all occur "off camera". However, I am unable to detect any conduct consistent with "blading" during the many recorded minutes of the defendant's physical interaction with Rietkoetter.

[15] The officer formed a suspicion at 3:08am that the defendant was operating a motor vehicle after consuming alcohol. His opinion was founded, he says, on the noticeable odour of alcohol combined with the defendant's efforts to avoid close observation (the blading), his driving behaviour (speeding and a hasty stop), the overcrowded car, the passengers' abrupt departure, and the transaction's proximity to the Entertainment District. Rietkoetter directed the defendant to place his hands on the hood of his scout, which he did. He then collected his microphone, activated the DVR's audio track, and put his ASD equipment box on the hood beside the defendant's outstretched arms. At about 3:10am, he read the defendant the ASD demand.

[16] The ensuing exchange, as I have transcribed it from the DVR, follows:

Q. Do you understand?

A. No.

Q. What don't you understand?

A. I don't understand because I've never done one.

Q. OK, I will demonstrate it for you. Now, before I demonstrate do you understand that I am requesting a sample of your breath? That's a lawful demand and failure to provide a sample of your breath is an offence.

A. OK. That's fine.

Q. So are you saying you do understand?

A. I don't understand.

Q. Are you going to comply with my demand?

A. No.

Q. You're not?

A. No.

Q. If I demonstrate it will you comply with the demand?

A. No.

Q. The demand that I just read to you, and I will re-read it if need be, you're not going to comply with?

A. I will not.

Q. OK, one more time. It now being 3:11 in the morning, [re-reads formal ASD demand from notebook]. Do you understand?

A. I do not understand.

Q. OK, this [pointing to the roadside device] is an approved screening device. I want you to provide a sample of your breath through one of these mouthpieces….

A. [interrupting:] I'm not going to do that.

Q. OK, place your hands….[formal arrest for refusing to comply with breath demand].

The arrest occurred about one and a half minutes after the first recital of the ASD demand. Rietkoetter did not wait any longer to effect the arrest as it was clear to him that the defendant had no intention of providing a sample. He agreed that he did not tell the defendant his reasons for the ASD demand. (The defendant's evidence on the point, to which I shall return, differs.) Nor, ultimately, did he ever demonstrate the breath sampling procedure.

[17] Rights to counsel followed at 3:12am. The defendant was released at the scene. A subsequent inventory search of the Infinity located nothing of any investigatory interest.

[18] The defendant, on video, presents as well coordinated, even-keeled, sober, coherent and lucid throughout his interaction with the officer. Unsurprisingly, he does not appear sanguine about his circumstances.

(c) The Defendant's Account

[19] The defendant was 32 at the time of trial. He had lived in Toronto since the age of four and had no difficulty understanding or speaking English. He was employed at a cooking school and spent the evening of April 26, 2013 preparing a demonstration for his next day's work. His cousin called about 1am on the 27th and asked the defendant if he would collect him and some friends at Cobra, a club near King and Bathurst in downtown Toronto. The defendant agreed after advising his cousin that he could only transport four passengers in total. He waited an hour or two for his cousin's party to be ready. When they were finally on board, he headed south on Bathurst in search of a gas station. The defendant's cousin and his friends were highly intoxicated. The defendant did not, he says, consume any alcohol that evening.

[20] There is an Esso gas station on Bathurst on the south side of Lake Shore. The defendant noticed the emergency lights of a police car behind him as he entered the intersection and turned in the direction of the station. As he pulled up to the pumps his passengers quickly jumped out and went into the gas station kiosk to use the washroom. The defendant intended to fill up his car. He asked the officer, Rietkoetter, why he had been pulled over. Rietkoetter, he said, told him it was because of the occupants in the back seat and asked about their number and where they had gone. The defendant had never previously been pulled over by the police and did not fully understand. He had consumed Benadryl throughout the day to address his seasonal allergies and was feeling tired. The events unfolded very quickly. And, as the defendant several times testified, he had difficulty recalling everything that happened.

[21] At the officer's request, the defendant collected and presented the documents Rietkoetter requested. They were no more than a metre apart during this exchange. The officer asked the defendant if he had been drinking and he denied doing so. The officer then told him he would have to take a breath test as he suspected the defendant was "under the influence". The defendant understood that the officer wanted him to use a breath-testing device and that he was obliged to follow his demand. He did not like the officer's manner. He felt the officer was aggressive, pushy and unfair, and that he had been pulled over for no reason. He was also concerned about the effect of the Benadryl on his test performance. He agreed he said nothing to the officer about consuming Benadryl.

[22] The officer told the defendant to place his hands on the hood of the police vehicle, which he did. The defendant first asked to speak to a lawyer and, he says, was advised he would have to wait until after the breath testing procedure. The defendant's recall of the exchange respecting his wish to call a lawyer was never put to PC Rietkoetter in cross-examination. The DVR does not here assist as the audio track was not activated until after the defendant placed his hands on the scout's hood.

[23] The defendant agreed that he several times told the officer he would not comply with the ASD demand, and that he was "very direct and definite" when he did so. He explained that he "felt it was too fast", that he felt intimidated, and that he did not understand the meaning of a "screening device". He agreed that he never asked for clarification of any specific terms and that the DVR contains no record of his ever asking for an explanation for the ASD demand.

[24] After being "ticketed" and released, the defendant, his cousin and three others left the gas station in a shared taxi.

C. ANALYSIS

(a) Introduction

[25] As noted earlier, the testimony and DVR provide the evidentiary record for determination of both an application to exclude evidence of the defendant's refusal and the merits of the Crown's allegation that the defendant refused to comply with the officer's ASD demand.

(b) The Charter Application

(i) Introduction

[26] The defendant's claim is that the police, in breach of his Charter s. 9 protections, arbitrarily stopped him and, in violation of s. 10(a), failed to advise him of the reason for his detention. But for his "pretext" detention, Rietkoetter would never have detected alcohol on the defendant's breath so as to ground an ASD demand. Alternatively (and whether or not the stop was arbitrary), the defendant asserts that he had not consumed any alcohol so there could not have been an odour of alcohol on his breath and, as a result, there was no reasonable basis for the demand. Either way, the officer's ASD demand – effectively a search – infringed the defendant's Charter s. 8 rights, as did the unreasonable seizure of the defendant's car key. The severity and impact of these breaches, or any one of them (but for the key), the argument continues, are such that the evidence respecting the defendant's alleged refusal to comply with the ASD demand should be excluded to preserve the repute of the administration of justice.

[27] Before addressing these various arguments, I note that the force of some of them is diminished by the defendant's testimonial candour. Said otherwise, some Charter-related issues left open at the close of the Crown's case were effectively closed by the time the defendant left the stand.

[28] I also note that each of the substantive Charter claims depends, respectively, on my inferring that there were never more than three passengers in the back seat of the Infinity and effectively accepting that the defendant had not drunk any alcohol that evening. So premised, the defence then asks me to resolve the evidentiary conflicts between the defendant's and the officer's testimony by attributing a number of testimonial fabrications to PC Rietkoetter. Not only, it is said, did he exaggerate the number of rear seat occupants but, in addition, he then failed to advise the defendant of any reasons for his detention or, if he did, it was only to cover his pretext stop of the vehicle. Similarly, Rietkoetter never detected an odour of alcohol on the defendant's breath and never advised him of the reasons for the ASD demand or, if he did, it was only to create a consistent narrative to legitimate his claim to having a reasonable suspicion for the demand. While I have difficulty accepting some of Rietkoetter's evidence, I do not find that he engaged in the sustained litany of prevarication alleged by the defence.

[29] I address these evidentiary concerns in due course.

(ii) Sections 9 and 10(a): Pulling Over the Defendant and Advising Him as to the Reasons for Doing So

[30] Sections 9 and 10(a) of the Charter guarantee, respectively, "the right not to be arbitrarily detained" and if detained, "to be informed promptly of the reasons therefor". PC Rietkoetter agreed that by activating his emergency equipment and pulling over the defendant he had, in law, detained him. The defence position, as just noted, is that there was no lawful basis to pull over the defendant: the explanations offered by Rietkoetter (speeding, sudden lane change, hard deceleration at the red light, quick acceleration as it turned to green and, of course, the overcrowded backseat) were mere pretexts for a hunch-driven investigation of youths coming from the direction of the Entertainment District at three in the morning with the radio blaring. Translated into the language of s. 9 of the Charter, the defendant's detention was arbitrary in the sense of it being the product of a random, capricious or purely subjective discretion, one untethered by legally defined objective standards or evidence of such standards having been met.

[31] This position, as noted, effectively depends on my being persuaded that Rietkoetter lied in advancing his reasons for pulling over the defendant. Rietkoetter, of course, is charged with enforcement of not only the Criminal Code but, as well, provincial legislation, including the Highway Traffic Act. Section 106(3) of the HTA compels motor vehicle passengers to occupy a seated position for which a seat belt assembly has been provided and to wear the complete seat belt assembly. Pursuant to s.-ss. 5(1)4, 6(1)2 and 6(1.1)2 of O. Reg. 340/94, as am., to the HTA, holders of Class G1 and G2 drivers licences are bound by a condition requiring that the "number of passengers in the motor vehicle must not exceed the number of operable seat belt assemblies installed in it". Put otherwise, and but for a few exceptions that do not here apply, every passenger in a moving vehicle violates the law if he or she is not wearing a seatbelt, but the only drivers subject to penalty for having fewer seat belts than passengers are those who hold less than a full G license.

[32] This, basically, is Rietkoetter's explanation for pulling over the defendant's car. While his attention may have been initially drawn to the Infinity by certain peculiar driving behaviour, the only possible offence he claims he was investigating was that associated with the use of seat belts. He saw more heads in the Infinity's backseat than could be legally accommodated by the seat belt assemblies installed in that model of car. At least one of the backseat passengers was breaking the law. If the driver carried only a G1 or G2 licence, he or she was also breaking the law, but Rietkoetter could not determine the driver's liability, if any, until he had an opportunity to view his or her licence. Assuming Rietkoetter was presented with the circumstances he described, he not only had the authority to demand that the defendant, as driver, produce his driver's licence but, in addition, he had the power, pursuant to sub.-s. 8(1) of the HTA, to request identification from any passenger who he "has reason to believe" is contravening the safety belt provisions of the Act or its regulations.

[33] As noted earlier, the defence bears the burden of proof on a standard of balance of probabilities respecting its ss. 9 and 10(a) Charter claims. Although I have doubts about the veracity of parts of Rietkoetter's account, I am ultimately not persuaded that he fabricated his evidence of backseat overcrowding or that his conduct otherwise falls short of constitutional norms.

[34] It may be that Rietkoetter hoped his investigation of a possible seat belt infraction might lead to his discovery of more serious offences. Whatever parallel or latent motivation he may have had when pulling over the Infinity, it does not taint the propriety of the defendant's initial detention so long as that detention is constitutionally defensible. No independent evidence confirms Rietkoetter's assertion that the back seat was over-populated. But even the defendant does not directly contradict the officer's testimony on this point. The defendant says he initially cautioned his cousin he could only accommodate a total of four passengers and that he, his cousin and three others shared a taxi from the station when he was finally released. However, my notes (in the absence of a transcript) do not reflect the defendant being asked or volunteering the number of persons occupying the back seat when he was pulled over at the Esso station. Further, it is the defendant (and not Rietkoetter) who recalls that their very first exchange focused on why he had been pulled over, and that the officer explained that it was because of excessive passengers in the rear of the Infinity and then asked about their number and whereabouts. The immediacy of this explanation lends credence to Rietkoetter's account. Additionally, it satisfies the s. 10(a) requirement that the defendant "be informed promptly of the reasons" for his detention.

[35] I find I am unable to reject Rietkoetter's testimony as to the excessive number of passengers he says he observed in the back seat. Nor, as a result, can I do other than conclude that his observation affords an objective basis for stopping the vehicle, and the defendant driver, for a legitimate HTA investigation. Rietkoetter's exercise of his discretion in this regard may be seen as small-minded or overly zealous, and it may have been twinned to other embryonic concerns, but it was within his compass of authority. (See Brown v. Regional Municipality of Durham Police Service Board; R. v. Calderon; and R. v. Harris, 2007 ONCA 574, esp. at paras. 29-30; R. v. Nolet, 2010 SCC 24; R. v. Morris, 2013 ONCA 223, esp. at paras. 6-7.) As I have already explained, I am also satisfied, in light of the defendant's account, that there was no breach of his s. 10(a) Charter rights during the course of this investigative detention.

(iii) Section 8: The Lawfulness of the ASD Demand

[36] Having determined the lawfulness of Rietkoetter's detention of the defendant, the assessment of whether there was a s. 8 breach turns not on an analysis of derivativeness or otherwise-indiscoverability but, rather and exclusively, on whether there existed an evidentiary basis for the ASD demand. An officer's empowerment to make such demand finds purchase in the Criminal Code rather than the issuance of any prior judicial authorization. Accordingly, and as noted earlier, the burden is borne by the Crown to establish the reasonableness of, here, the demand; the defence is not obliged to demonstrate its unreasonableness. As put by the Supreme Court in R. v. Nolet, supra, at para. 21:

A warrantless search is presumptively unreasonable and contrary to s. 8 of the Charter, which guarantees to everyone "the right to be secure against unreasonable search or seizure". In the absence of a warrant, the Crown must establish on a balance of probabilities that the search was authorized by law, that the law itself is reasonable, and that the manner in which the search was carried out was reasonable: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278, and R. v. Caslake, [1998] 1 S.C.R. 51, at para. 10.

(See, also, R. v. Haas.)

[37] Section 254(2)(b) of the Criminal Code sets out the legal authority for an ASD demand. No issue respecting the reasonableness of this provision arises or, given its inchoate nature in the instant case, the manner of search. The relevant portions of s. 254(2)(b) read:

If a peace officer has reasonable grounds to suspect that a person has alcohol … in their body and has, within the preceding three hours, operated a motor vehicle … the peace officer may, by demand, require the person … to provide forthwith a sample of breath … by means of an approved screening device ….

It is undisputed that the defendant had driven the Infinity within the three hours preceding the demand. The sole issue is whether the other fundamental statutory precondition for the demand is established: did PC Rietkoetter have the required "reasonable grounds to suspect" that the defendant had alcohol in his body at the time he made the roadside demand. The defence position, to which I have earlier alluded, is that Rietkoetter fabricated his claim to having detected the odour of alcohol. In the alternative, the defence suggests that the defendant's breath was somehow contaminated by the alcohol emanations of his passengers. In my view, which I hereafter detail, Rietkoetter's olfactory claim warrants credit and, as a result, the alternative defence position does not avail the defendant in the presenting circumstances.

[38] The applicable standard – both statutory and constitutional – is one of "reasonable suspicion". As very recently explained in R. v. Moiz, 2015 ONCJ 40, at para. 25-26 (citations omitted and emphasis added):

Reasonable suspicion means, "something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds". As the Supreme Court of Canada has explained, "reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts" but "reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime." According to the Court the standard, "derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny." In assessing whether or not this threshold is met, a reviewing court must have regard to the "totality of the circumstances". The assessment, "must be fact-based, flexible, and grounded in common sense and practical, everyday experience".

It is important to remember that in the context of 254(2)(b) a peace officer is not required to have reasonable suspicion that a driver is in fact impaired. Rather, the question is simply whether the officer has reasonable grounds to suspect that a driver has some alcohol in his or her body.

"[S]ome alcohol", as set out in the final quoted sentence, is here synonymous with "any alcohol". Conventional indicia of impairment may be of assistance (indeed, sometimes crucial) in determining whether the threshold of "reasonable suspicion" is met in cases of ambiguous evidence, where no odour of alcohol is detected, or where the only discernable odour of alcohol emanates from the inside of a vehicle (as in the Moiz case itself), particularly one containing several occupants. However, an officer's suspicion founded on a smell of alcohol on the breath of the driver is independently sufficient – "reasonable grounds to suspect" – to infer that the driver has alcohol in his body even where, as here, the driver denies drinking: R. v. Lindsay; R. v. Butchko, 2004 SKCA 159; R. v. Stauch, 2007 ABCA 55, at para. 18. The seemingly low standard of "reasonable suspicion" of alcohol in a suspect's body is perfectly understandable in the context of a procedure that, itself, does not establish any offence but, rather, serves solely as a screening mechanism for further potentially incriminating inquiries.

[39] The arrogant manner in which Rietkoetter sometimes testified invites skepticism of his credibility. I also find suspect certain driving and personal behaviour he claims to have observed. Nonetheless, I accept Rietkoetter's evidence that he detected an odour of alcohol on the defendant's breath and that this claim supports a "reasonable suspicion" that the defendant had alcohol in his body. The DVR is of no assistance with respect to any verbalization of this perception as the incident is said to have occurred off-camera and before the officer retrieves his microphone. However, the defendant's evidence affords a circumstantial measure of confirmation in so far he testifies, against his own interests, to Rietkoetter both inquiring as to his drinking and articulating his suspicion that the defendant was under the influence at a time before the DVR microphone was activated.

[40] I do not accept the defendant's bald disavowal of having consumed any alcohol that evening. The DVR discloses no signs of impairment and Rietkoetter eschews any observation of related indicia. However, as I have earlier endeavoured to make clear, evidence of impairment is not necessary to the legal assessment directed by s. 254(2)(b) nor, in the circumstances of this case, is there any evidentiary requirement to identify indicia of intoxication. In short, I prefer Rietkoetter's account to the defendant's blunt denial.

[41] The alternative defence theory – that of olfactory contamination – leaves open the possibility that both witnesses could have testified honestly in this regard. That is, even if the defendant had not consumed alcohol Rietkoetter could still have detected, close to the defendant's mouth, an odour of alcohol transferred to the defendant as a result of his close proximity to his highly intoxicated passengers. Whether or not the defendant actually had a drink that evening, the theory of cross-occupant contamination then provides an empirical foundation for the suspicion held by Rietkoetter as to the defendant having alcohol in his body. The defence position, of course, is that in such circumstances the inference drawn by Rietkoetter as to the defendant having consumed alcohol is mistaken. In my view, such mistake (if such it was) is of no moment where, as here, the odour emanates from the defendant's breath and no benign explanation, other than a bald denial, is on offer. Put otherwise, a police officer who detects the odour of alcohol on a driver's breath may form a reasonable suspicion (not probability) that the driver has "alcohol … in their body", and the threshold-clearing force of that inference is not negatived by subsequent evidence or explanation (if any) that renders it mistaken.

[42] Under either rubric, I am satisfied that Rietkoetter smelled an odour of alcohol on the defendant's breath and, as a result, had a reasonable basis for that suspicion necessary to make an ASD demand. In short, relying on Rietkoetter's evidence, I find the ASD demand was not violative of the defendant's "right to be secure against unreasonable search or seizure" as protected by s. 8 of the Charter.

[43] There remains, if only marginally, the question of Rietkoetter's seizure of the defendant's car key. The key is not, of course, probative of any fact in issue and the defence does not seek to exclude evidence of its seizure or suggest that such seizure alone, even if unreasonable, would warrant exclusion of evidence of the defendant's refusal. The seizure of the key, even if violative of s. 8, goes only to the issue of the officer's good faith, or lack thereof, within the framework of a s. 24(2) exclusionary analysis. Given my conclusion that there are otherwise no Charter breaches, I need not determine whether the seizure of the keys is constitutionally wanting or, if so, its value in the exclusionary calculus.

(iv) Section 24(2): The Remedy of Exclusion

[44] Having watched the entire DVD, it is apparent that PC Rietkoetter was at times abrupt and discourteous in his dealings with the defendant. Such demeanour, if regrettable, does not engage any constitutionally protected interests.

[45] As I have found no Charter breaches there is no reason to embark on a s. 24(2) inquiry. It may be, in any event, that evidence of a refusal to comply with a lawful ASD demand is not subject to exclusion as the refusal itself is an element of the actus reus of the offence. As said by the Court of Appeal in R. v. Hanneson, at 473, with respect to an established infringement of the right to counsel, a "breach of s. 10(b) does not insulate the person detained from subsequent criminal responsibility by rendering inadmissible statements which are the whole or part of the actus reus of a crime."

[46] The scope and application of this "thorny issue" are far from settled. The competing authorities are reviewed in R. v. Soomal, 2014 ONCJ 220. Stribopoulos J. there concludes that, following a finding of a Charter infringement (at least one involving s. 10(b)), a court is not precluded from considering a remedy of exclusion of evidence of a refusal to comply with an approved instrument demand, pursuant to sub.-s. 254(3)(a). However, he conspicuously notes that, "an approved screening device demand under subsection 254(2)(a) … appears to raise different considerations" [emphasis added]. These "different considerations" are addressed in R. v. Bleta, 2012 ONSC 1235. In view of my conclusions respecting the alleged constitutional breaches, the resolution of this debate need not here be resolved.

(c) Addressing the Merits: Did the Defendant "Refuse" to Comply with the ASD Demand?

[47] In my view, there is no doubt that the defendant refused the ASD demand. There was no uncertainty in his response to the officer's demand. He repeatedly says "no". His words are constantly, adamantly those of refusal, and he takes no issue with this interpretation of the video record of his exchange with PC Rietkoetter. The charge, as set out in the Information, particularizes the offence of "refusing" to comply with an ASD demand. As said in R. v. Bijelic, at para. 30, "[r]efusal to comply may be quite express or may logically be inferred from the totality of the detained driver's behaviour". Where, as here, the evidence of "refusal" rests on express and consistent language rather than conduct from which a reading of constructive refusal may be drawn, proof of the actus reus, the physical act, is hardly an inferential leap.

[48] Further, fulfilment of this element requires no more opportunities or time than afforded by Rietkoetter in the face of the defendant's consistent repudiations and the absence of any evidence of ambivalence or equivocation. Where the refusal is, as here, verbal, repetitive and expressed in unambiguous language, it matters little whether one treats the mental element as one requiring proof of specific intent (R. v. Lewko, 2002 SKCA 121) or merely general intent (R. v. Porter, 2012 ONSC 3504): the mens rea is amply satisfied under either approach in the case before me.

[49] Finally, I see no reason on the evidentiary record to explore the further Charter-based submission, only faintly urged, that the defendant was so inadequately apprised of the consequences of his refusal to comply with the ASD demand as to render his words of refusal, however sincere and certain, inadequate to satisfy a legal standard of "informed refusal". I have been offered no authority in support of this proposition that, as best I understand it, seeks to equate the threshold information necessary to compel compliance with an otherwise lawful exercise of a statutory police power with the constitutional requirements for an informed waiver of Charter protected rights (see, for example, R. v. Wills) or, perhaps, protections that obtain in determining the voluntariness of an accused's statement.

[50] I do not purport to determine the contours or applicability, or even the existence, of a principle of "informed refusal" on the facts of this case. As I read the record, the defendant cannot realistically be said to have advanced this species of justification for his refusal to comply either at trial or during the course of the relevant transaction as captured on the DVR. When asked on the scene what of the ASD demand he did "not understand", the defendant spoke only of his "never [having] done one". Yet he eschewed Rietkoetter's offers to demonstrate the procedure. Further, he testified that Rietkoetter told him he suspected that he, the defendant, had consumed alcohol, and he acknowledged understanding that the officer wanted him to use a breath-testing device and that he was required to follow his demand.

[51] All that said, I do note that there is at least some precedent for suggesting that an officer's provision of positively erroneous information regarding the consequences of failing to comply with an ASD demand may breach s. 7 of the Charter: R. v. Kenny, [2002] O.J. No. 3601. On the other hand, there is considerable authority (including appellate authority) for the proposition that the provision of incomplete information (as opposed to misinformation) does not compromise an otherwise effective refusal: R. v. Liptak, [2007] A.J. No. 534; R. v. Kovinko, [2001] Q.J. No. 8285; R. v. Hammersley, [1995] B.C.J. No. 997; R. v. Mac, 2008 ONCJ 161, at para. 13. I shall leave to others or another day the legal fate of this doctrine, if such it is.

[52] Finally: while the issue does not directly arise on the immediate facts, if, as held in R. v. Porter, supra, the requisite mental element is satisfied on proof of general intent, it does seem that an accused could more effectively and indeed fairly defend himself if he could invoke the statutory defence of "reasonable excuse" without having to assume a burden of proof that, in Ontario, requires him to establish such excuse on a balance of probabilities: R. v. Moser. (See, also, R. v. Goleski, 2014 BCCA 80, esp. at paras. 59-81, which relies on s. 794(2) of the Code, to achieve the same result.)

[53] A contrary view obtains in some other provinces (see, for example, R. v. Lewko, supra, at paras. 35-36; R. v. Dolphin, 2004 MBQB 252, at paras. 27-28), and some Ontario jurists have at least mused that the direction of the more modern authorities is to fix only an evidential burden on an accused, rather than one of persuasion, where a s. 254(5) defence of "reasonable excuse" is advanced. As is conventionally the case with affirmative defences, evidence amounting to "an air of reality" with respect to a "reasonable excuse" would then suffice to place the legal or ultimate burden of proof on the Crown in refusal-to-comply prosecutions.

[54] R. v. Porter, supra, at para. 42, affords one discussion of the logic of reconsidering the allocation of the "reasonable excuse" burden of proof in the context of treating the offence of failing or refusing to comply with a breath demand as one of general intent. While not expressly addressing s. 254, the learned authors of The Law of Evidence in Canada, 4th Ed., (Toronto: LexisNexis Canada, 2014), at 124, observe that the assignment of the burden of proof,

does not lie in a mechanical formula or rule of construction but rather in our traditional notions of justice. As American writers conclude, the incidence of the burden of proof is dependent upon considerations of policy, fairness and probability ….

These "considerations" will undoubtedly inform the Supreme Court's determination of this very issue in the pending appeal of Grant Anthony Goleski v. Her Majesty the Queen.

D. CONCLUSION

[55] Consistent with these reasons, I find the defendant guilty of the offence of refusing to comply with an approved screening device demand.

Verdict rendered on February 6, 2015

Final reasons filed on February 10, 2015

Justice Melvyn Green