ONTARIO COURT OF JUSTICE

Date: March 13, 2017

Court File No.: Toronto

BETWEEN:

HER MAJESTY THE QUEEN (Prosecutor)

— AND —

MICHAEL OMELAN (Accused)

Before: Justice Nakatsuru

Heard on: February 13, 14, 15, 2017

Reasons for Judgment released on: March 13, 2017

Counsel:

• B. McCallum, for the Prosecution
• D. Burke, for Omelan

NAKATSURU J.:

A. INTRODUCTION

[1] Mr. Omelan is charged with impaired driving and over 80. At around 4:55 a.m. on April 12, 2015, P.C. Williams and P.C. Ferlisi received a radio call about a possible impaired driver. A tow truck driver and another witness had seen Mr. Omelan at an intersection apparently asleep or passed out at the wheel. Once awoken, Mr. Omelan drove off followed by the two truck drivers. The police officers soon caught up to Mr. Omelan. They stopped him at 5:05 a.m. They entered into an investigation of Mr. Omelan with respect to a potential drinking and driving offence. At approximately 5:22 a.m. P.C. Williams placed Mr. Omelan under arrest for impaired driving, read him his right to counsel, and gave him a caution. However, rather than giving him an approved instrument demand, P.C. Williams read Mr. Omelan an approved screening device demand. At Traffic Services, Mr. Omelan gave two samples of breath: at 7:01 a.m., the reading was 170 mg of alcohol in 100 ml of blood; at 7:24 a.m., the reading was 162 mg of alcohol in 100 ml of blood.

[2] A Charter application was brought. The trial proceeded by way of a blended application and a trial on the merits. A number of issues arise in this case. I am mindful of the onus on the Crown to prove beyond a reasonable doubt all the essential elements of the offences. With respect to the alleged violation of s. 8 of the Charter, given the warrantless seizure of the Mr. Omelan's breath, I am further mindful that the onus is on the Crown to prove the reasonableness of that seizure.

[3] I will deal with each of the issues as argued by the parties. Before doing so, I must make an assessment of Mr. Omelan's testimony as he gave evidence on both the Charter application and the trial. Some of the factual issues have narrowed given Mr. Omelan's testimony. Furthermore, the camera in the police cruiser provided a good record of the exchanges between Mr. Omelan and the police at the roadside.

B. CREDIBILITY ASSESSMENTS

[4] As noted, Mr. Omelan testified both on the Charter application and the merits of the trial. As a result, I am mindful that the doctrine of reasonable doubt applies to his testimony. The Mr. Omelan admitted that he had been drinking and that he had drove the car largely consistent with what the Crown witnesses had observed. There are some differences. Significantly, he testified to the following:

• That he was not asleep or passed out at the wheel. Rather, he had stalled his vehicle and for some reason he was not able to restart or get the car going. He simply moved his head back in frustration momentarily.

• That his ability to operate a motor vehicle was not impaired.

[5] After carefully scrutinizing his testimony, I find I cannot accept his testimony on these points as well as others. I find there were credibility concerns in general and specifically with respect to these issues. While Mr. Omelan did testify at times with apparent candor and made reasonable admissions in his testimony, the impact of cross-examination on his credibility was significant. He was inconsistent, implausible, and evasive on material points.

[6] Mr. Omelan was cross-examined on his statements to P.C. Thompson, the qualified Intoxilizer technician. It was conceded by the defence that the statements were voluntary and admissible for that purpose. In one exchange, I find that Mr. Omelan tells P.C. Thompson he was not where P.C. Williams said he was. Mr. Omelan further states he was not involved in the incident referred to in the radio call. In other words, in my finding, he was denying to P.C. Thompson that he was the person whom witnesses found unconscious behind the wheel of a car. Under the pressure of cross-examination, Mr. Omelan denied that this was what he was in fact saying to the technician. Mr. Omelan testified that all he was saying when he made these comments was a correction of P.C. Williams' mistakes. I found Mr. Omelan's explanations from the witness box evasive, implausible, and disjointed. His explanation is not consistent with the words he said to P.C. Thompson. I do not accept it. His credibility suffered as a result.

[7] Further, when P.C. Thompson asked him when his last drink was, Mr. Omelan said it was 10 hours ago at around 6 p.m. This was not true. Mr. Omelan testified that he was at his place of work, the Fantasy Sports Network, and did a double shift. There was a work event that night and between his shifts, he had a couple glasses of wine and maybe a couple of mixed drinks from about 6 to 7 p.m. Then after his second shift was over, some co-workers came over at 2 a.m. and he had further wine, maybe half a bottle, as they talked and discussed a recent Raptor's division win that night. This is fundamentally different from what he told P.C. Thompson. His explanation for this discrepancy in the witness stand was evasive and not plausible. Essentially he said he was nervous and just gave a quick answer to P.C. Thompson. This is inconsistent with the video where he appears to carefully try and calculate the last time of his drink. I find Mr. Omelan was minimizing his drinking to the police and was deliberately being untruthful despite acknowledging under oath that he was aware it was important to tell the police the truth. His answers under cross-examination significantly diminished his credibility in my eyes.

[8] In addition, as I will explore in the next section of my reasons, the video taken of the exchange between Mr. Omelan and the police when he was stopped. In my view, this is significant evidence of the impairment of his ability to operate a motor vehicle. This is inconsistent with his assertion in his testimony that he was not impaired.

[9] Thus, I do not accept his testimony when it comes to these two areas of his evidence. I will deal further with the consequence of this later in my reasons.

[10] With respect to P.C. Williams and P.C. Ferlisi, I found their evidence to be credible and very probative. Cross-examination did not meaningfully challenge their credibility or reliability. The video confirmed most of what they testified to. In particular, I found P.C. Williams to be honest. He freely admitted that he gave the wrong demand. He realized this when he was writing up his notes for the evening. He did not attempt to fudge or cover up his mistake. He admitted both in his notes and in his testimony that he gave an approved screening device demand.

[11] While I make this finding, there is one area of their testimony that I could not give much weight to. This was one of their explanations for why they turned off the audio when they returned to the police cruiser. I will explain this further. However, ultimately for me, this did not impact adversely on their overall credibility. I therefore accept their testimony.

C. REASONABLE AND PROBABLE GROUNDS FOR THE ARREST

[12] Mr. Omelan argued that P.C. Williams did not have reasonable and probable grounds to arrest him on the impaired driving charge and thereby require him to provide a breath sample. He alleges a violation of s. 8 and 9 of the Charter. He does not dispute that P.C. Williams subjectively believed that he had grounds. P.C. Williams testified that he did. I accept that. What Mr. Omelan submits is that, objectively speaking, when P.C. Williams arrested him at 5:22 a.m., he lacked the reasonable grounds that he had committed the offence. He submits that at the most the officers had only reasonable suspicion he had alcohol in his body and should have required him to provide samples into an approved screening device. It is noted that during their investigation, P.C. Ferlisi had indeed radioed out for an approved screening device to be brought to the scene. However, he cancelled this because P.C. Williams advised him to do so as he felt he had the grounds to make an arrest.

[13] Looking at the constellation of objectively discernible facts, I find that the objective test has been met: see R. v. Shepherd, 2009 SCC 35 at paras. 16-17, 21-22; R. v. Bush, 2010 ONCA 554 at paras. 47, 58.

[14] It is important to assess the whole of the circumstances. Here P.C. Williams received a radio call that a witness had seen a driver asleep behind the wheel at a location in the area. When this driver was woken up, he left. A tow truck driver also called in about this same person and advised he was possibly an impaired driver. The defence submitted that there is a lack of specificity and detail in this information and it cannot afford much grounds to reasonably believe an offence had been committed by the accused. I agree to this extent; not every piece of information provided to the police can afford probative grounds for an arrest. The source of the information and its content are important to assess. Further, while such information can provide a reason to investigate, information such as this cannot usually provide grounds to deprive an individual of their liberty. That said, this information does have some detail in that it describes not just generally describe a potential impaired driver but does give specific information about the driver as being asleep at the wheel. In addition, this information must be considered in light of the other information available to P.C. Williams by the time he made his arrest.

[15] When P.C. Williams and P.C. Ferlisi came upon the scene, they were flagged down by three females and pointed to where the vehicle with the tow truck following went. The officers shortly caught up to the tow truck and the car going northbound on Atlantic Avenue. Given the timing, the location, and the time of night, there was little question that this car was the subject of the radio call. The police moved behind the car and stopped it by activating their cruiser lights.

[16] When P.C. Williams came up to Mr. Omelan on the driver's side, he began his investigation. P.C. Williams testified that Mr. Omelan had a strong odor of alcohol coming from his breath. He also testified that Mr. Omelan was mumbling in response to questions. His speech was slurred. He did not seem to be able to answer simple questions. The pupils of Mr. Omelan's eyes were dilated. His motor skills were very poor in trying to retrieve his documents.

[17] In response to questioning by P.C. Williams, Mr. Omelan denied he was the driver who witnesses had said was asleep behind the wheel. He said he was simply coming back from work. When questioned by the officer, he said he only had a glass of wine at 6 p.m. I appreciate that these are exculpatory pieces of information that must be considered in the assessment of reasonable and probable grounds but their mere existence does not mean that the other contradictory information supporting the grounds cannot be considered.

[18] I accept P.C. Williams's testimony about his observations. They are confirmed by the video that has been entered as Exhibit 1. I have carefully listened to the exchange when Mr. Omelan was pulled over and questioned by the police. This significantly supports the reasonable and probable grounds required. While the officer had no familiarity with the Mr. Omelan, he believed the Mr. Omelan was slurring his speech. In listening to the tape, I agree. Mr. Omelan's speech is significantly slurred. In addition, there were long pauses after some of the questions posed by P.C. Williams. He had to repeat his questions on a number of occasions. For instance, when initially asked where he was coming from, the officer asked this a number of times because Mr. Omelan's answers were not clear or he paused or he was silent. It was as if the accused for no apparent reason lost his train of thought. In addition, there were times he gave non-responsive answers to some of the questions. For example, when asked if he had his documents with him rather than producing them or responding to the question, Mr. Omelan suddenly again pipes up about his place of work, Fantasy Sports Network. Mr. Omelan had to be reminded to look for his documents. His answers were repetitive at times. He also mumbled some of his words. In addition, he gave rambling answers to what he did at his place at work. I appreciate the nature of Mr. Omelan's work may not be easy to describe as it is rather unique, but what struck me was the way he gave those explanations. In short, looking at the manner in which he spoke, simply put, his responses to the officer came across as being given by a man significantly impaired by alcohol.

[19] There was also more. Some of the content of his responses also revealed significant impairment by alcohol. I appreciate that there was debris in the interior of the car and that according to the Mr. Omelan, this was his mother's car. This may have partly distracted him while answering and created some difficulty in retrieving the documents. However, in my view, certainly not to the extent revealed by the video. PC Williams testified he was fumbling around while doing this. I accept that evidence. That said, given the debris in the car, the probative value of this fumbling is much reduced. However, aside from the general inability to find his documents, Mr. Omelan produced a receipt to P.C. Williams when asked for his automobile insurance. While this could be explained by a simple mistake, it is also an objective indicator that his judgment and perception was clouded. Further, when asked about whether he had anything to drink, when answering that he had a glass of wine at 6, he stated it was 2 a.m. now. This was very wrong. He then remarks in a non-responsive fashion that the car was a Volkswagen. It was new and he had just gotten it that day. Of course, Mr. Omelan was driving a Toyota Corolla. I recognize that Mr. Omelan testified that he had indeed bought a Volkswagen but had not yet gotten delivery of it. But the manner in which it came across in the video was the ramblings of an intoxicated person who either believed he was driving a Volkswagen or was heedless as to what he was saying to the police.

[20] I appreciate that the officers did not observe any bad driving. Nor did they observe any loss of balance or other major physical indicia. Mr. Omelan was polite and cooperative. Furthermore, I recognize that because P.C. Ferlisi had requested an approved screening device, he may have initially had a different opinion then his partner. However, P.C. Ferlisi was making his observations from the passenger side window. P.C. Williams had a better vantage point. And of course, ultimately, the approved screening device was cancelled.

[21] When I look at the whole picture, the constellation of objectively discernible facts, I find that P.C. Williams had reasonable and probable grounds to make the arrest and an approved instrument demand. In summary, P.C. Williams got a radio call about a possible impaired driver who was so impaired he was asleep behind the wheel. When they got to the scene, they had reasonable grounds to identify that vehicle and driver due to the witnesses and the fact the tow truck driver was following it and to discount the accused's comment they had the wrong person. Then in a relatively lengthy 6 minute conversation between P.C. Williams and Mr. Omelan, the manner and content of his remarks provided significant grounds, in addition to the odor of alcohol and some more minor physical indicia, to conclude that Mr. Omelan was committing the offence of impaired operation of a motor vehicle. As a result, I find no merit to the defence argument.

D. GIVING THE WRONG DEMAND

[22] There is no dispute that P.C. Williams gave the wrong demand. He gave the approved screening device demand pursuant to s. 254(2)(b) of the Criminal Code rather than the improved instrument demand pursuant to s. 254(3)(a)(i) of the Criminal Code. P.C. Thompson, the qualified technician, agreed that he did not give the requisite demand to Mr. Omelan prior to taking the breath samples. As the breathylzer room video shows, P.C. Thompson asked P.C. Williams if he had done so and when he received an affirmative reply, the qualified technician relied on this information.

[23] Ms. McCallum on behalf of the Crown argued that despite this, I could still find that a proper demand was given by P.C. Williams. She submits that the law has adopted a flexible and functional approach to assessing whether a specific approved instrument demand is lawful. The test focuses on whether or not the individual understood that they were required to provide a breath sample and the entirety of the surrounding circumstances is to be considered: see R. v. Ghebretatiyos, [2000] O.J. No. 4982. Ms. McCallum submits that in the case at bar, these circumstances include the evidence of Mr. Omelan who essentially admitted that he knew he had to go to the police station to provide samples of his breath. According to her, this is an important distinguishing fact from the cases relied on by the defence. In addition, while P.C. Thompson did not make a demand himself in the breath room, he carefully explained in some detail what the tests involved and what Mr. Omelan was required to do. It is submitted that on the facts of this case, it was a technical error and that no prejudice or unfairness to the accused resulted: see for comparison R. v. Gladstone, 2016 ONCJ 249.

[24] I admit that I am attracted to some of the Crown's argument. However, I am bound by the decision of Justice Campbell in the case of R. v. Waisanen, 2015 ONSC 5823. This was a Crown appeal on essentially the identical facts as this case. The officer gave the accused an approved screening device demand rather than the approved instrument demand. The trial judge held that this was not a lawful demand pursuant to s. 254(3)(a)(i) and the certificate of analysis was excluded. Justice Campbell upheld the trial judge's conclusion and dismissed the Crown appeal. At paragraph 19 of the decision Justice Campbell holds:

At the same time, the courts have consistently held that one of the important legal preconditions for the effective operation of the statutory presumption created by s. 258(1)(c) of the Criminal Code is that the "samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3)" of the Criminal Code, namely by means of an "approved instrument" demand. Approved screening device demands made pursuant to s. 254(2)(b) of the Criminal Code have been consistently held to be legally inadequate for this purpose. See R. v. Kagayalingam, 2006 ONCJ 196; R. v. Cheng, 2008 ONCJ 368; R. v. Ovchinikov, [2008] O.J. No. 5959; R. v. Monsivais, 2012 ONCJ 106; R. v. Williams, 2014 ONCJ 582; R. v. Nasseir, [1998] O.J. No. 2166; R. v. Palanacki, [2001] O.J. No. 6254. The decisions in this line of authority persuasively explain that these two demands are significantly different in their content and in their practical consequences for the accused, and that strict technical compliance with s. 258(1)(c) of the Criminal Code is required given the considerable evidentiary assistance provided to the Crown by the provision.

[25] In my view, given that "strict technical compliance" is required, I cannot see how the accused's subjective interpretation of the demand given by P.C. Williams can turn an approved screening device demand into a legal demand made pursuant to s. 254(3)(a)(i). As a result, I cannot accept the Crown's distinction and must follow this binding precedent.

[26] I further appreciate that Justice Campbell's comments were made while assessing whether the Crown could rely upon the presumption in s. 258(1)(c). The analysis was not focussed per se on whether an approved screening device demand made in error could ever be considered a sufficient demand under s. 254(3)(a)(i). That being said, Justice Campbell was alert to the flexible and functional approach as set out in Ghebretatiyos, and nevertheless concluded that an approved screening device demand could not be considered a valid s. 254(3)(a)(i) demand. Consequently, I am unable to distinguish the decision on this basis either.

[27] The question flows what is the consequence of this. The Crown in this case did not tender the certificate of analysis. Furthermore, given my decision, the Crown cannot now avail itself of the presumption found in s. 258(1)(c). However, in this case, the Crown has called a toxicologist who gave opinion evidence about Mr. Omelan's blood alcohol concentration level at the time of his driving and need not rely on the presumption.

[28] Consequently, as the parties have done in this case, the admissibility of the readings must be determined under the Charter. Here the police obtained Mr. Omelan's breath without compliance with the Criminal Code. It was not authorized by law. As a result, I find that there was a violation of Mr. Omelan's right under s. 8 to be free from unreasonable search and seizure. The evidence of the readings and the toxicologist opinion upon which they are based are generally admissible under the common law but can be excluded under s. 24(2) of the Charter: see R. v. Wylie, [2013] O.J. No. 5019 at para. 12. I will undertake this analysis after dealing with all of the defence Charter arguments.

E. AS SOON AS PRACTICABLE

[29] The defence argued that the first breath sample was not taken "as soon as practicable" as required by s. 258(1)(c). I find it unnecessary to deal with this issue. I have already found that a proper demand was not made. As a result, a precondition to the evidentiary shortcut of the presumption has not been met. Therefore, it is redundant to determine whether the breath samples were taken as soon as practicable.

[30] If I were required to determine this issue, I would have held that the Crown has proven the samples were taken as soon as practicable. The Crown must show that the tests were taken within a reasonably prompt time under the circumstances: see R. v. Vanderbruggen at para. 12. In this case, when I look at the whole chain of events bearing in mind the outside limit of two hours, I find that police acted reasonably and gave no unreasonable priority to any other task.

[31] In this case, the first sample was taken just under the two hour limit. As conceded by the defence, through P.C. Williams and P.C. Ferlisi, the Crown gave an account of all the time spent with Mr. Omelan. The officers were only engaged in the investigation of this offence and were not distracted by other tasks. The time spent at the scene of the stop was reasonable given the investigation undertaken by the police officers. They questioned Mr. Omelan, ran checks and discussed the case in the cruiser, returned to the scene and asked him to exit and asked further questions, arrested him and gave him his rights. They departed quickly to Traffic Services. They waited until they were allowed in by the Staff Sergeant in charge of the station. Inside, a parade was conducted, duty counsel had to be called, and Mr. Omelan spoke with duty counsel. While there was a minor delay before he was brought into the breathalyzer room, P.C. Thompson explained that he had to warm up the Intoxilizer as it had gone into standby mode. P.C. Thompson fully explained the process to Mr. Omelan. The first sample was then taken.

[32] The only part of the whole chain of events that involved any particular delay as pointed out by the defence was the time spent at the sally port door before the police cruiser was allowed into the station. This was from 5:34 a.m. to 6:01 a.m. Both P.C. Williams and P.C. Ferlisi testified that they had no option but to wait. They only could be allowed in once the officer-in-charge of the station permitted them to do so. I appreciate that no direct evidence was called about the reason for the delay. However, both P.C. Williams and P.C. Ferlisi testified from their experience that a delay of this length usually meant that there was another detainee who was being processed ahead of them. In addition, P.C. Thompson also testified that he had done the testing of one prior detainee before Mr. Omelan. There is some evidence supporting the inference that the wait involved the prior processing of another individual. The defence rightfully points out that the other detainee was asked to provide his first sample at 5:44 a.m. Thus, the whole length of time awaiting entry into the station cannot be attributed to the time requirement to parade the other individual. While this is true, I also recognize that P.C. Thompson did not finish with this other individual until 6:20 a.m. and was not in a position to commence his tests with Mr. Omelan until sometime after that.

[33] While I appreciate the delay at the sally port, I find that when I look at the whole chain of events and the conduct of the police, I would have concluded that the first sample taken from Mr. Omelan was taken as soon as practicable.

F. VIOLATION OF S. 10(B) RIGHT TO COUNSEL AT THE SCENE

[34] When Mr. Omelan was arrested for impaired driving, he was given his right to counsel. He exercised his right to counsel at the police station. Despite this, Mr. Omelan contends that his right to counsel as guaranteed by s. 10(b) of the Charter was violated by P.C. Williams.

[35] This argument can be disposed of quickly. Mr. Omelan was detained within the meaning of s. 10(b) when he was pulled over by the police. However, P.C. Williams and P.C. Ferlisi were investigating a possible impaired driver. Their investigation involved asking Mr. Omelan questions, making observations, and checking his documents. During the course of this roadside investigation, a driver's right to counsel is suspended: see R. v. Orbanski; R. v. Elias, 2005 SCC 37 at paras. 1-3, 30-33, and 40-60.

[36] I recognize that the entire stop and investigation took some time before Mr. Omelan's ultimate arrest; some 17 minutes. But in that time, the officers conducted road-side questioning of the accused, returned to the cruiser to run checks and discuss their course of action, and P.C. Williams returned to the car to make some further observations and ask a few more questions. The investigation was not static during this interval of time. Further, the police were focussed on investigating the accused and the potential offence of impaired driving and were not simply detaining Mr. Omelan for irrelevant or improper purposes. It is worthy to note that when P.C. Williams first approached Mr. Omelan, he denied that he was the driver that the witnesses had said was asleep or passed out behind the wheel of his car. When P.C. Williams returned to question the accused again, he asked more questions about this and Mr. Omelan's difficulty in explaining the nature of his work. I cannot fault P.C. Williams for exercising some prudence before proceeding to arrest Mr. Omelan. In my view, he was further investigating his grounds before effecting the actual arrest. I agree with the Crown that by not acting hastily, it could only be for Mr. Omelan's benefit in avoiding an unnecessary arrest.

[37] I further recognize that P.C. Williams believed that he had reasonable and probable grounds to arrest Mr. Omelan after initially questioning him and before he returned to the cruiser with his partner. P.C. Williams testified that with hindsight he should have arrested the accused immediately upon determining he had such grounds. However, the video shows P.C. Ferlisi motioning his partner back to the cruiser. In that cruiser, both officers testified that they had discussions. An approved screening device that was ordered by P.C. Ferlisi was cancelled once his partner informed him that he had the grounds for an arrest. It is reasonable that the officers would want to discuss the matter further. This makes sense especially in light of the fact that Mr. Omelan denied he was the person who was sleeping behind the wheel.

[38] There is no law that requires a police officer to arrest an individual the moment that officer forms reasonable and probable grounds to arrest. There was nothing compelling P.C. Williams to do so in this case. P.C. Williams was detaining Mr. Omelan as he continued his investigation though he may have already formed his grounds for the arrest. This situation is very different from one where a driver is detained only on a reasonable suspicion that they have alcohol in their body when the "forthwith" requirements in the Criminal Code regarding approved screening device demands are engaged: see R. v. Quansah, 2012 ONCA 123. Finally, I recognize that P.C. Williams had further questions of Mr. Omelan when he returned to the car even though he had already formed his grounds. However, none of the answers provided by Mr. Omelan can be used to incriminate him given that he had not been advised of his right to counsel. They can only be used in determining whether the police had reasonable and probable grounds: see R. v. Guenter, 2016 ONCA 572 at paras. 48-50. As a result, there is nothing unconstitutional in P.C. Williams's further questioning.

[39] I find there the defence has failed to prove any violation of the accused's s. 10(b) Charter rights.

G. TURNING THE AUDIO OFF IN THE POLICE CRUISER

[40] Mr. Omelan submits that his rights under ss. 7 and 11(d) of Charter were violated because the police turned off the audio to their microphones from approximately 5:12 a.m. to 5:22 a.m. This occurred when P.C. Williams and P.C. Ferlisi returned to their cruiser to check Mr. Omelan's documents and have a discussion in the car. This was before P.C. Williams arrested Mr. Omelan.

[41] The officers were questioned about this. While there were some differences, their evidence was relatively consistent with each other. P.C. Williams testified that he muted his microphone when he returned to the car. P.C. Ferlisi did not have as good a recall. He testified he carried a microphone on him but was not sure if it turned off when he placed it in the cradle to recharge or whether he actually turned off. Looking at the video, it seems to me that there was only one operative microphone which was being carried by P.C. Williams although I cannot be sure.

[42] When asked why they would turn off the audio, their evidence was largely consistent. P.C. Williams initially testified that it was to protect Mr. Omelan's privacy but he eventually conceded he did not want their discussions about what they had observed and their investigation recorded. P.C. Williams testified that P.C. Ferlisi thought he had reasonable suspicion but P.C. Williams believed that based on his own observations and vantage point, Mr. Omelan was impaired. They discussed it and P.C. Williams had P.C. Ferlisi cancel a request for the approved screening device. P.C. Ferlisi also mentioned the privacy purpose as they do conduct checks on police databases. He was more forthright about turning off the audio because they normally do that for investigative purposes. P.C. Ferlisi agreed they had discussed their next course of action. His partner had been closer to the driver and when he advised that he had grounds, P.C. Ferlisi cancelled the request for the approved screening device that he asked for earlier.

[43] In assessing their testimony, I cannot put much weight on their testimony they were concerned about Mr. Omelan's privacy. Clearly the existing video and audio already significantly detracted from his privacy. More compelling is the officer's testimony that they did not want their investigative discussions recorded. I find that was the reason why they turned off the audio.

[44] While the defence submitted cases where the police destroyed or failed to preserve evidence, these cases have no relevance here. The officers here never destroyed or failed to preserve any evidence. They simply did not record an aspect of their investigation. Thus no evidence existed in the first place.

[45] The police have no legal obligation to record discussions such as this: see R. v. Winterfield, 2010 ONSC 1288 at para. 91. Of course, where they fail to record material and relevant conversations or events when they had the opportunity to do so, this may be an important factor to consider on issues such as the credibility of the police officers. However, the fact they do not record does not in and of itself amount to a Charter breach.

[46] The key issue is whether the police conduct somehow has resulted in prejudice to the accused's ability to make full answer and defence and his right to a fair trial. I find that it has not in this case. There was a reasonable reason why the officers did not want to have their conversations recorded. A recording of investigative discussions might impair their ability to be candid and forthright with each other. The period of time which was not recorded involved no interaction between the police and Mr. Omelan. The audio captured no information relevant to the commission of the offence. The segment of unrecorded audio was relatively short. The only possible relevance of the unrecorded conversations would have had to do with the reasonable and probable grounds the police had to arrest the accused. However, both officers involved in that conversation were available for the defence to cross-examine. Perhaps most significantly, it was never disputed that P.C. Williams subjectively believed he had the grounds to make an arrest. The issue was whether there was an objective basis for it. That objective basis was fully captured to the extent it could by the video and audio of the interactions between the police and Mr. Omelan. The unrecorded conversations in the police cruiser between P.C. Williams and P.C. Ferlisi do not provide any information about those objectively discernible facts.

[47] In these circumstances, I find the failure to audio record these conversations did not result in any breach of the Charter.

[48] Certainly even if there had been a proven a violation, this would not have come close to one of the "clearest of case" that would have warranted a stay of proceedings as a remedy.

H. SECTION 24(2) OF THE CHARTER

[49] I have found a violation of s. 8 of the Charter given that Mr. Omelan's breath was seized without there being a proper demand. In determining whether I should exclude the breath samples, I must consider the lines of inquiry set out in the leading case of R. v. Grant, 2009 SCC 32.

1. Seriousness of the Charter-Infringing State Conduct

[50] In assessing the first prong of the test, I find that the conduct of the police falls on the less serious end of the spectrum. To be sure, P.C. Williams made a mistake. I also appreciate that there are significant differences both in the wording of the demands and the consequences of the demands when it comes to an approved screening device and an approved instrument. However, the violation was neither severe nor deliberate. P.C. Williams otherwise respected all the requirements of the law and the Charter. He had the grounds to arrest the accused and make the proper demand. The evidence shows that far from acting rashly or heedlessly, P.C. Williams took the time to ask a number of questions of the accused and consider the information he had carefully. He had discussions with his partner about their course of action. When it came to the arrest and the reading of the right to counsel, he performed these without fault. But when it came to reading the demand, he made a mistake by reading the wrong one. In my view, this was not a flagrant or wilful violation.

[51] P.C. Williams has been on the force for 8 years but has only done a few impaired investigations. While his mistake was careless, it was not grossly negligent. He became aware that he had read the wrong demand when he was doing up his notes. He did not try to cover up his mistake. He noted it down. He was candid in his testimony about it. There is nothing to suggest this mistake was a part of a pattern of abuse.

[52] I appreciate defence counsel's impassioned argument about how careful Parliament has been in setting up the investigative framework for enforcing the laws on drinking and driving offences. The roadside screening tests that are done without a number of constitutional safeguards provide a foundation for more accurate approved instrument tests conducted after those constitutional rights are given. Thus there is a significant difference between these two types of procedures. However, P.C. Williams's error in giving the wrong demand does not undermine the integrity of that careful scheme which balances the rights of the detainee and the needs of the police to investigate. The police officer had the reasonable and probable grounds to make the proper demand. The actual investigation and process of obtaining the breath samples took place appropriately and within the boundaries determined by the law save for the s. 8 violation.

[53] While I cannot condone mistakes being made by the police, I find that in these circumstances it is not necessary for me to strongly dissociate the court from such unlawful conduct. Thus while this line of inquiry favours exclusion it does not do so strongly.

2. The Impact of the Charter Violation on the Accused

[54] I must further assess the extent to which the breach undermines the Charter-protected interests of the accused. When it comes to s. 8, the main interest at play is privacy, bodily integrity, and dignity. In assessing this, I must have regard to Mr. Omelan's testimony. While he is not knowledgeable about police investigations such as this, it is clear from his evidence that he was aware that he had to go the police station with the officers to give samples of his breath. Even though he was given the wrong demand for a roadside screening device, he was under no misapprehension about what he was being required to do. In other words, he was no less informed or treated appropriately when it came to his privacy, dignity, and bodily integrity then had he been given the proper approved instrument demand.

[55] In addition to this, the law has recognized when it comes to the s. 24(2) analysis, the taking of a breath sample is minimally intrusive or relatively non-intrusive. It has been held that in these circumstances, consideration of the second prong of the test, will usually favour inclusion: see R. v. Rehill, 2015 ONSC 6025 at paras. 33–37.

[56] In my view, this line of inquiry would favour admission of the readings.

3. The Importance and Reliability of the Evidence

[57] There is no doubt the breath samples are important to the Crown case. While the Crown does not concede she would be unable to prove the impaired charges without the readings, no doubt they remain important to this count. With respect to the over 80 charge, they are crucial.

[58] In addition, the readings are reliable evidence. The Intoxilyzer results have not been challenged by the defence. The authorities have consistently held that such evidence is generally reliable.

[59] Society has an interest in seeing a trial on the merits especially in a case where the accused is alleged to have driven his vehicle with over twice the legal limit.

[60] Consideration of the third line of inquiry favours admission of the evidence.

4. Conclusion

[61] I have considered these lines of inquiry and carefully balanced the factors in determining whether admission of the evidence could bring the administration of justice into disrepute. Two lines of inquiry favour the admission of the evidence. The readings are reliable and important evidence in a drinking and driving case where the public has an interest in seeing a trial on the merits. I appreciate that consideration of the third prong of the test is not a weighty factor. Generally, the first two lines of inquiry will determine whether evidence is admissible or not. Here, the police officer made a mistake in reading the wrong demand but the accused was not mislead by it. The police otherwise conducted the investigation and the tests appropriately. The state Charter-infringing conduct was not on the serious end of the spectrum. The samples taken were done in a non-intrusive fashion and the core of Mr. Omelan's s. 8 interests were not significantly affected by the violation. I am satisfied that the final balancing in the case mandates admission of the evidence.

I. THE OVER 80 CHARGE

[62] The Crown must prove all the essential elements. I am satisfied beyond a reasonable doubt that Mr. Omelan was operating a motor vehicle. The Crown is not able to rely upon the presumption. However, the toxicologist testified that given the Intoxilizer readings, Mr. Omelan would have had a blood alcohol concentration of 160 to 250 mg of alcohol in 100 ml of blood between the times 4:35 a.m. to 5:15 a.m. While the toxicologist made certain assumptions, she was not impeached in cross-examination on those assumptions or on her opinion. There is nothing in the evidence to suggest her opinion on this is not reliable and I accept it. The police officers saw Mr. Omelan driving shortly before they stopped him at 5:05 a.m. I am satisfied on the whole of the evidence that the Crown has proven beyond a reasonable doubt all the elements of the charge.

J. THE IMPAIRED CHARGE

[63] The leading case on the test for impairment is R. v. Stellato. While any degree of impairment suffices, the Crown must still prove this essential element beyond a reasonable doubt.

[64] I have rejected Mr. Omelan's testimony when he testified that he was not asleep or passed out and that he was not impaired. That said, I must still consider the whole of the evidence to determine whether his testimony nonetheless raises a reasonable doubt and even if it does not, whether the Crown has proven that Mr. Omelan's ability to operate a motor vehicle was impaired by alcohol.

[65] I find that the Crown has done so in this case. First of all, I accept the testimony of Ms. Skuja, the civilian witness, and Mr. Jacob, the tow truck driver. They gave clear, honest and reliable evidence. They had no bias and were independent. There were minor inconsistencies between their evidence that can be attributed to inconsequential mistakes of recollection or their differing perspectives on the evening. Their evidence was generally consistent with each other and indeed, consistent with much of Mr. Omelan's evidence. Cross-examination neither impeached them or their evidence.

[66] I find that Mr. Omelan was passed out or asleep at the wheel. His testimony does not raise a reasonable doubt here. It is clear that his position, slumped motionless behind the wheel for some time, while cars were honking and trying to pass him, is more consistent with him being passed out or asleep than the momentary closing of his eyes as described by Mr. Omelan. The startled reaction and rude gesture made by Mr. Omelan as testified to by Mr. Jacob that Mr. Jacob received when he knocked on the window is again consistent with Mr. Omelan being unconscious and being unexpectedly awakened. I further find this was consistent with the totality of the evidence including the observations made by the police when he was stopped.

[67] Both Mr. Jacob and Ms. Skuja made similar observations of the accused's rear lights that were consistent with him pushing on his brake pedal numerous times as if he was trying to get the car into gear. I appreciate Mr. Omelan said he was having trouble starting the car. But his explanation that the car for some unknown reason stalled and would not start again, is implausible in light of the inference as displayed by the rear lights and the fact he was able to restart the car later. I appreciate he did ask the tow truck driver for help. I appreciate further that this was his mother's car. However, if his purpose was to restart the car, I see no reason why Mr. Omelan would repeatedly push on and off the brake pedal. It seems to me that this action is more consistent with trouble getting the car into motion. This action is further consistent with confusion or affected judgment on the part of the driver. I also accept the observations of Ms. Skuja when it came to Mr. Omelan's driving. She was paying close attention to him as he drove away given her concerns and her place of observation. Mr. Omelan made wide turns and drove over the curb as he was exiting the Tim Horton's parking lot. Further, I accept Mr. Jacob's description of him; that Mr. Omelan was slurring his words and stumbling a bit. Finally, Mr. Omelan drove through a number of stop signs.

[68] The police officers and Mr. Jacob testified that they were of the opinion the accused was impaired. I don't attach a great deal of weight to their opinions per se. However, their opinions are consistent with the whole of the evidence.

[69] There is the testimony of the toxicologist based upon the readings Mr. Omelan blew. I appreciate the defence submission that the toxicologist did admit there was varying opinions amongst toxicologists as to whether an individual's ability to operate a motor vehicle begins at a blood alcohol concentration greater than 50 mg of alcohol per 100 ml of blood. But that does not lessen the weight of her opinion. She testified to the general effects of increasing blood alcohol concentration. In Mr. Omelan's case, his readings were at least 3 times beyond that level she opined would impair a person's ability to operate a motor vehicle. The toxicologist's opinion has significant probative value.

[70] I recognize that other physical indicia were lacking and Mr. Omelan's leaning or odd gait could also be explained by past physical injury. All that said, when I look at the whole of the evidence, including Mr. Omelan's rejected evidence, I am certain that his ability to operate a motor vehicle at the time of his driving was impaired by alcohol when I look at his behaviour, the physical indicia, the video, the driving conduct, and the readings and expert opinion. Indeed, even without the readings and toxicologist's evidence, I would have concluded that the Crown had proven its case beyond a reasonable doubt.

[71] Finally, I appreciate that Mr. Omelan testified that he was tired. While I do not disagree that he was, based upon the whole of the evidence, his ability to operate a motor vehicle was impaired by alcohol and not fatigue. The totality of the evidence makes this clear.

[72] I therefore find Mr. Omelan guilty of impaired driving. Based upon the application of the Kienapple principle, the over 80 charge will be stayed.

Released: March 13, 2017

Signed: "Justice S. Nakatsuru"