Court File and Parties

Court File No.: Sudbury 15-920 Date: January 9, 2017 Ontario Court of Justice

Between: Her Majesty the Queen — and — Daniel Stargratt

Before: Justice A.L. Guay

Heard: May 6, 7 and September 20, 2016

Reasons for Judgment released: January 9, 2017

Counsel:

• Julie Lefebvre, for the Crown
• Irwin Isenstein, for the accused Daniel Stargratt

GUAY J.:

[1] Charges and Issues

The accused was charged with impaired driving and with having care and control of a vehicle while having consumed an illegal amount of alcohol, contrary to sections 253(1)(a) and 253(1)(b) of the Criminal Code of Canada. The issues to be determined in this matter are (1) whether there is sufficient evidence to convict the accused of one or more of the charges against him and (2) whether the evidence in support of such offences is tainted by noncompliance with the Charter of Rights and Freedoms. In this respect, the accused alleges violation of his rights under sections 7, 8 and 10(b) of the Charter. There follow the specific issues of care and control, whether the evidence provided to the investigating officer was statutorily compelled and therefore unavailable for use by the Crown and whether the arresting officer had reasonable and probable grounds to believe that he had committed driving offences and was therefore obliged to provide breath samples for analysis. The Crown maintains that there is sufficient evidence to convict the accused of both charges and that his Charter rights were not violated by the police in the course of obtaining that evidence.

Background

[2] Events of November 9-10, 2015

On the early morning of November 9, 2015, the accused left Northwestern Ontario for the City of Greater Sudbury, arriving there later that evening. The accused testified that while he had had a good rest that evening, it was not as much as he needed to overcome his fatigue. He said that he was therefore tired on the evening of the following day, November 10, 2015, when the accident occurred. The accused recounted how on that evening he had decided to visit an old friend in the Rumball Terrace area of Greater Sudbury. He recalled going to his friend's place around 10:00 pm and remembered consuming approximately 2 to 3 drinks prior to leaving his friend's residence shortly before midnight. Asked in cross-examination how much alcohol he had served himself in each drink, he replied that he had not measured the amount of alcohol he consumed.

[3] The Accident

Not long after the accused left his friend's residence to visit a girlfriend in the northeast part of the city, he became involved in a single vehicle accident at the intersection of the Kingsway and Falconbridge Highway. Falconbridge Highway runs in a north-south direction while the Kingsway intersects it in an east-west direction. He told Constable Hart he had made a hard turn to the left onto Falconbridge Highway in order to proceed in a northerly direction. As a result, his Honda Civic vehicle ended up totally stranded on a median located on Falconbridge Highway not far from its intersection with the Kingsway. The vehicle's undercarriage was damaged and the accused was not able to remove it from the median on which it had come to rest. Within approximately 15 minutes from the time the accident occurred, an officer with the Greater Sudbury Police arrived on the scene after being notified of the accident by people at the scene. As a result of the investigation carried out by the police, the accused was charged with the impaired driving offenses before the court.

Evidence

[4] Crown's Witnesses

In support of its case, the Crown called four witnesses. These witnesses included two civilian witnesses, Joseph Bouchard and Joey Leblanc, and two police witnesses, Constable Hart and Acting Sergeant Maksymchuk. Constable Hart was the investigating officer while Acting Sergeant Maksymchuk was the Intoxilyzer technician.

Joseph Bouchard and Joey Leblanc

[5] Civilian Witnesses' Observations

The two youthful civilian witnesses, Joseph Bouchard and Joey Leblanc, happened onto the scene of the accident shortly after midnight while they were cruising about the city. They, like Constable Hart, found the roads in the area of the accident to be in a fair condition. Joey Leblanc testified that the weather that evening was nice and did not recall any precipitation. Constable Hart would join him in testifying that while he found the roads in the area to be wet, he did not find the roads to be in bad condition. He recalled, in fact, that he carried out his investigation at the accident site in his shirt sleeves. He was not wearing his police jacket, choosing instead to leave it in his cruiser.

[6] Joseph Bouchard's Account

Joseph Bouchard testified that both he and Joey Leblanc had the impression that the accused, the driver of the vehicle, was drunk. Although he could not recall smelling alcohol emanating from the accused's breath, he testified that when he spoke with him, he found the accused to be slurring his words. The accused, he said, had asked him and Joey LeBlanc to help him get his car off the median but not to call the cops. It is a reasonable inference from this evidence, which I accept, that the accused intended to move his vehicle if he was able to get it off the median.

[7] Joey Leblanc's Account

In contrast to his friend Joseph Bouchard, Joey Leblanc did recall smelling alcohol on the accused's breath as he spoke with him. Judging from the accused's general demeanour, including his slurred speech, Joey Leblanc formed the belief the accused was intoxicated. He testified that the accused asked him and Joseph Bouchard if they could pull his vehicle off the median, telling them, in answer to their inquiry about his health, that he was all right.

Constable Christopher Hart

[8] Constable Hart's Arrival and Initial Observations

Instead of helping the accused extricate his vehicle from the median, the two civilians called the police. Constable Hart responded to a dispatch and arrived at the scene of the accident at about 12:40 a.m. When Constable Hart arrived, he noticed the accused slumped over the wheel of his vehicle with the driver air bag deployed. At first, this caused him to wonder whether the accused had been stunned by the rapid deployment of the driver airbag or whether there was some other reason for his inactivity. Constable Hart quickly established that the accused was the driver of the vehicle, that he was not injured and that there had been no passengers in the vehicle at the time of the accident. In his testimony, Constable Hart noted that the accused had stumbled as he exited the vehicle, being forced to grab onto the driver's side door window for support. Constable Hart soon detected an odour of alcohol coming from the accused. When he asked the accused what happened, the accused told him that he had taken too hard a left turn onto Falconbridge Highway. Pursuing his investigation and conscious of the smell of alcohol emanating from the accused's breath, Constable Hart asked the accused how much he had had to drink. So certain was he that the accused had been drinking that he did not bother to ask the accused whether he had indeed been drinking. In answer to his question, the accused blurted out: "Enough!" and then, "Too f…..g much!" It was at this point that Constable Hart formed the belief that he had reasonable and probable grounds to charge the accused with the impaired driving offences he is facing and he did so. He obviously saw no need to require the accused to provide a roadside screening sample to verify his belief and asked the accused to accompany him to police headquarters in order to provide the required breath samples into an Intoxilyzer machine.

[9] Accused's Explanation of the Accident

The accused told Constable Hart that part of the reason for the accident was that he had been cut off by another driver. No evidence was provided to support this allegation. Consequently, I do not find that I can give it any weight. It is not credible. I accept, however, that the accused did make the statement to Constable Hart that he had made too hard a left turn onto Falconbridge Highway and that because of the poor road conditions, this caused his vehicle to land up on the north-south median approximately 50 feet from the intersection of Falconbridge Highway and the Kingsway.

[10] Discrepancy in Police Report

A review of the police report (see Exhibit 1) indicated that the accused's vehicle had made a too hard or uncontrolled right hand turn onto Falconbridge Highway, causing it to drift across two traffic lanes onto the median in a northerly direction. Since there were no other witnesses to the accident or none remaining at the scene of the accident, the information on the police report was either based on information provided to Constable Hart by the accused or on an inference Constable Hart drew from what he observed. I find that Constable Hart was wrong on this point and that he was misled either by the information given to him by the accused or by what he deduced to be the case.

[11] Accused's Sketch and Credibility

In the course of his testimony, the accused drew a sketch (see Exhibit 6) intended to illustrate how his vehicle had made a right-hand turn from the Kingsway onto Falconbridge Highway in a northerly direction. I reject his evidence on this point as it does not make sense. Coming from the area of the city where he had been socializing with his friend to the intersection of the Kingsway and Falconbridge Highway, the accused would have been proceeding in an easterly direction. Had he made too hard a left turn, one can see how he would or could have ended up on the median pointing in a northerly direction if he had lost control of his vehicle. The accused now alleged that he had been proceeding westerly on the Kingsway and that by making a hard left turn onto Falconbridge Highway, he had ended up on the median. If the accused had proceeded as he alleged, he would, however, have had to have left Rumball Terrace, proceeded easterly on Regent Street and then crossed over the bypass connecting Regent Street /Highway 69 with the Kingsway and then driven a good distance back in a westerly direction to meet up with the intersection of the Kingsway and Falconbridge Highway. Clearly, a driver as familiar with the city as the accused was and conscious of where he was intending to go would not have done this. If, by chance, he had travelled this way to the intersection where the accident occurred, he would not have wanted to make a hard left turn to get onto Falconbridge Highway. Rather, he would have made a right hand turn into the lane on his immediate right and not two lanes over. His confusion on this point suggests that at the time, he was either not in control of his vehicle or else he was reluctant to tell Constable Hart what had really happened.

[12] Constable Hart's Observations of Impairment

When Constable Hart asked the accused to produce his licence, he noticed that the accused had had to fumble through his wallet at least two times before finally, on the third occasion, finding it. This was despite the fact that the accused's licence was clearly visible to Constable Hart who was observing the accused as he attempted to retrieve his licence. Constable Hart stated that by 12:41 hours, he became satisfied that the accused's behaviour was that of a driver whose ability to drive was impaired as a result of his consumption of alcohol and he shortly thereafter charged him with the present offenses.

[13] Time Estimate and Reasonable Grounds

Having, however, listened carefully to the officer's testimony about what he did after he arrived at the scene of the accident at 12:40 a.m., I am of the view that his time estimate with respect to the investigation he undertook prior to charging the accused was wrong and that it had to have taken him more than one minute to carry it out. Constable Hart is an experienced police officer. While it would not have taken him long to arrive at the belief that he had reasonable and probable grounds to charge the accused with alcohol-related driving offenses, he could not have arrived at the scene, got out of his cruiser, parked it in a way to illuminate it to the oncoming traffic, observed the accused, spoken to the accused and got his version of the events leading up to the accident in only one minute. To be sure, both on a subjective and objective basis, finding a vehicle stranded on a median, seriously damaged, with the driver dazed and smelling of alcohol certainly provided him with reasonable and probable grounds to believe that an alcohol-related driving offense or offenses had been committed, absent any reasonable explanation for the accident. While Constable Hart did not talk to the two civilian witnesses until the next day, he did not need their evidence to arrive at a conclusion which was reasonable under the circumstances. Asked in cross-examination whether he would have arrested the accused without his admission that he had had "Too f….ng much" (alcohol), Constable Hart insisted that because of his observations of the accused, he would have done so without that admission by him.

[14] Transport to Police Headquarters and Lawyer Contact

The accused's vehicle was towed at 12:55 a.m. It was at this time that Constable Hart left the scene of the accident with the accused, taking him to police headquarters for the purpose of obtaining breath samples from him. At the accused's request, Constable Hart tried to put him in touch with Sudbury lawyer Peter McMullen. At 1:22 p.m., Constable Hart turned the accused over to Acting Sergeant Maksymchuk, the Intoxilyzer technician. Between 1:22 a.m. and 1:44 a.m., the accused remained in Acting Sergeant Maksymchuk's custody as he prepared the Intoxilyzer 8000 C to receive the accused's breath samples. At 1:55 a.m., Acting Sergeant Maksymchuk advised Constable Hart that at 1:44 a.m. he had tried to contact Berk Keaney, another Sudbury criminal lawyer, whose services had been requested by the accused. At 1:58 a.m., again at the accused's request, Constable Hart was finally able to contact a third Sudbury lawyer, Glenn Sandberg. The accused was allowed to speak to Glenn Sandberg and did so between 1:58 a.m. and 2:15 a.m., at which point he was returned to the custody of Acting Sergeant Maksymchuk by Constable Hart in order for the breath samples to be obtained.

Acting Sergeant Wade Maksymchuk

[15] Preparation and Custody

The accused was turned over to the Intoxilyzer technician, Acting Sergeant Maksymchuk, by Constable Hart at 1:24 a.m. Acting Sergeant Maksymchuk, a duly qualified Breathalyzer technician (since November 2010) had earlier been alerted by Constable Hart to the need for his services. He had immediately attended at police headquarters to make preparations for the taking of breath samples from the accused. His preparations were underway by the time the accused arrived at the police headquarters at 1:05 a.m. Acting Sergeant Maksymchuk continued carrying out his preparations until the accused was brought before him by Constable Hart at 1:24 a.m. At this point, Constable Hart attended before Acting Sergeant Maksymchuk to provide him with his grounds for arresting and charging the accused.

[16] Breath Sample Results

Acting Sergeant Maksymchuk testified that he found the accused to be "disoriented" but polite and cooperative. He noted, however, that he smelled alcohol emanating from him. What then transpired was that he and Constable Hart alternately tried to contact a lawyer of the accused's choice. As noted earlier, a local lawyer, Peter McMullen, who was known to the accused, was called at his request, but was not available. The accused then asked that Sudbury criminal lawyer Berk Keaney be called, but these calls to Berk Keaney were not returned. Finally, at 1:44 a.m., a final call was placed to another Sudbury criminal lawyer, Glenn Sandberg. He responded and by 1:56 a.m., the accused was given an opportunity to talk confidentially with him. According to Acting Sergeant Maksymchuk, the accused spoke privately with Glen Sandberg until 2:15 a.m. At 2:25 a.m. Acting Sergeant Maksymchuk proceeded with the taking of the first breath sample; it produced a reading of 160 mg of alcohol in 100 mL of blood. While waiting for the second sample to be obtained, Acting Sergeant Maksymchuk completed the Alcohol Influence Report, noting therein his observations with respect to the effects of alcohol on the accused. Seventeen minutes later, according to Acting Sergeant Maksymchuk, the results of the second sample were obtained, providing a reading of 150 mg of alcohol in 100 mL of blood.

[17] Two-Hour Period Violation and Dismissal of Section 253(1)(b) Charge

Given the time of the investigating officer's arrival at the scene of the accident, (i.e. 12:40 a.m.), and the delay in obtaining a lawyer of the accused's choice, the second breath sample ended up being taken outside the permissible two-hour period. The Crown therefore lost the benefit of the presumptions of identity and accuracy available to it under the Criminal Code. The Crown did not call expert evidence to establish that the accused's blood alcohol content at the time of the accident exceeded the legally permissible limit of 80 mg of alcohol in 100 mL of blood. The Crown therefore conceded that at all material times it was not in a position to prove that the accused was guilty of that charge. The charge under s. 253(1)(b) against the accused is therefore dismissed.

[18] Accused's Admissions to Acting Sergeant Maksymchuk

During the 17 minute interval between his two breath tests, the accused made certain admissions to Acting Sergeant Maksymchuk. I find these admissions to have been made voluntarily. The accused admitted to drinking in the three-hour period prior the accident. He first told Acting Sergeant Maksymchuk that he had had a couple of drinks. Then he told him that he had consumed about two or three drinks at his friend's place between approximately 10:00 p.m. earlier that evening and when he left to visit his girlfriend at about 12:00 a.m. The accused had earlier spoken with Constable Hart similarly admitting his consumption of alcohol earlier that evening. The difference this time was that he had spoken at length to an experienced criminal law lawyer. According to the accused, this lawyer had cautioned him not to say anything to the police. Asked by his counsel about his disclosures to Constable Hart, the accused said he felt he did not have a choice and that he had had to talk to him because he was a police officer. When asked about his disclosures to Acting Sergeant Maksymchuk, he stated that he had wanted to get out of custody, that they, the police, were persons in authority and that even though his lawyer (Glenn Sandberg) had told him not to talk to the police, he felt he had an obligation to do so. The accused made it clear to Acting Sergeant Maksymchuk in the breath room that he was satisfied with the advice given to him by Glenn Sandberg. He made it clear to both Constable Hart and to Officer Maksymchuk that he knew his rights and understood what was taking place. More particularly, the accused said he had a choice not to talk to Acting Sergeant Maksymchuk but that was not how he felt. He felt, he testified, that he had to confess and, as far as can be determined, he did so voluntarily albeit under a moral compulsion to do so.

[19] Accused's Ethical Sense

The present situation constitutes an unusual scenario where someone with some experience with the law (the accused had formerly been an auxiliary police officer with the Ontario Provincial Police) and provided with legal advice to the contrary by a criminal law lawyer was reasonably candid about information he provided to the police. He did so in the full knowledge that these admissions were going to be used against him in a court of law. I think it is clear that finding himself in a difficult legal position, the accused's ethical sense more than not trumped his instinct for self-preservation.

The Accused's Evidence

[20] Accused's Lack of Candour

Notwithstanding the above evidence, it must be acknowledged that the accused was not completely forthcoming in his disclosures. Faced with the evidence of the two civilian witnesses about telling them not to call the police, the accused testified that while he knew that he had to call the police as a result of the accident (this would be consistent with his experience as an auxiliary police officer), he was concerned about police reaction to the odour of alcohol on his breath. In other words, he was concerned about being found guilty of impaired driving. Asked why he had not himself called the police on the occasion of the accident, he stated that he had not done so because he could not find his cell phone in his car, a small Honda Civic. It is safe to conclude that had the civilian witnesses called a tow truck or been able to themselves tow the accused's vehicle off the median instead of calling the police (which they did), it was his intention to avoid the unpleasant consequences flowing from his impaired driving and move his car.

[21] Accused's Inner Compulsion to Be Truthful

While I have no difficulty accepting the accused's evidence that he experienced the stress someone apprehended by the police feels after being charged with drinking and driving offenses, I find that the accused was generally operating under an inner compulsion to be truthful about the predicament he found himself in. One can remark from examining the conduct of the two police officers involved with the accused as a result of his impaired driving that every concern was given to his legal rights and the need for him to obtain legal counsel. In fact, so great was that concern that it was, I find, what led the police, from their perspective, to jeopardize the case they were bringing against him.

The Accused's Charter Breach Allegations

Care and Control

[22] Presumption of Care and Control

The accused argued that the Crown failed to establish that he had care and control of the vehicle when he was driving on the occasion of the accident. Here, it is important to recall the evidence of Constable Hart with respect to whether he would have charged the accused with impaired driving had the accused not made the admission that he had had "Too f… ng much" to drink prior to the accident. Maintaining that he would have charged the accused with impaired driving without that admission, Constable Hart testified that upon his arrival at the scene of the accident, he found the accused slumped over the steering wheel in the driver's seat of the vehicle stranded on the median close to the intersection of the Kingsway and Falconbridge Highway. In R. v. Boudreault, 2012 SCC 56, the Court dealt with the issue of care and control. It clearly stated that:

…an accused found in the driver's seat will be presumed, as a matter of law, to have care and control of the vehicle, unless the accused satisfies the court that he or she had no intention to drive---an intention that, pursuant to Ford, is not an essential element of the offence! (see para 37)

In Boudreault, care and control was determined to include the danger of risk, the Court maintaining that:

Parliament's intention in enacting s. 253(1) of the Criminal Code was to criminalize only conduct that creates a realistic risk of danger. (para 40)

Continuing, the Court concluded:

As I mentioned at the outset, anyone found inebriated and behind the wheel with a present ability to drive will --- and should --- almost invariably be convicted. It hardly follows, however, that a conviction in these circumstances is, or should be "automatic". A conviction will be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case". (see para 45).

Information Obtained Under Compulsion

[23] Distinction from White and Soules

In Boudreault, the accused was intoxicated but was not found to have had the intention to drive his vehicle. The fact that he was found asleep in the driver's seat of the vehicle with the motor of the vehicle running was deemed to be insufficient to find him guilty of the offense of care and control of a motor vehicle with a blood alcohol content in excess of 80 mg of alcohol in 100 mL of blood pursuant to section 253(1)(b) of the Criminal Code. Constable Hart clearly realized from his observations that the accused was the driver of the vehicle involved in the single vehicle accident to which he had been called. He did not need the Highway Traffic Act of Ontario to determine that the accused was the driver. The facts clearly spoke for themselves. The accused led no evidence to contradict the presumption that he was the driver of the vehicle at the time the accident occurred. Again, being embarked almost from the start upon an investigation involving the possibility that the cause of the accident and the real problem presenting itself to him was not that of a motor vehicle accident caused by driver's negligence but rather that he was dealing with a driver whose ability to drive was impaired by alcohol. That is the investigation upon which he was embarked. This is not a situation where a police officer arrived at the scene of an accident in order to assess civil liability of one or more drivers. The answer to the question of "who the driver was" was directed at the accused not as someone who had contravened the Ontario Highway Traffic Act, but rather as someone whose conduct was likely criminal in nature as a result of driving while his ability to do so was impaired by alcohol.

[24] Accused's Inner Compulsion to Speak

While the accused maintained that he had provided his identity as the driver of the vehicle involved in the accident to Constable Hart under the compulsion of the Highway Traffic Act of Ontario, his evidence makes it very clear that the compulsion to speak which he gave vent to on the occasion of the accident was from the start based on an inner compulsion to be frank with the police, albeit that he had a fear of being found out and convicted of a driving offence. There were no other vehicles involved in the accident. As far as could be determined, there were no other drivers and no passengers. While Constable Hart was originally sent to the scene to investigate an accident, he quickly suspected that what he had on his hands was not an accident resulting from negligent driving but instead an accident resulting from impaired driving of a motor vehicle. His presumption was that the person he observed in the driver's seat of the vehicle was the driver of that vehicle at the time the accident occurred unless some other explanation was offered and, of course, none was.

[25] Application of R. v. Soules

The issue of compulsion to provide information pursuant to law and the improper use of that information was addressed by the Ontario Court of Appeal in R. v. Soules, 2011 ONCA 429. In that case, the facts were that the accused had rear-ended the vehicle in front of her. There were in fact four vehicles involved in the accident. It is reasonable to infer that when the investigating officer arrived on the scene, he did not know what he was dealing with and consequently sought out information as to who the drivers of the vehicles involved in the accident were. Having embarked on an inquiry for the purpose of determining the identity of the drivers, it was only then that the officer became suspicious about the accused's intoxicated state.

[26] Statutory Compulsion and Self-Incrimination

Echoing the decision of the Supreme Court of Canada in R. v. White, the Ontario Court of Appeal noted that that case was:

…determinative of the issue governing the use of statutorily compelled evidence for criminal purposes.

In fact, the Court stated (see para. 43):

The statutorily compelled admission from Mr. Soules in our case is not admissible for the purpose of establishing grounds for making either the ASD or the breath demand.

Citing former Justice Iacobucci in the White decision, the Court stated:

The protection afforded by the principle against self-incrimination does not vary based on upon the relative importance of the self-incriminatory information sought to be used. If s. 7 is engaged by the circumstances surrounding the admission into evidence of a compelled statement, the concern with self-incrimination applies in relation to all of the information transmitted in the compelled statement. Section 7 is violated and that is the end of the analysis, subject to the issues relating to s. 24(1) of the Charter.

[27] Justification Under Section 1

While in Soules the Court noted that an argument might have been made justifying an infringement of section 7 of the Charter under s. 1 of the Charter (see paras. 54 and 55), it chose not to address this possibility, stating that "the issue of justification under s. 1 of the Charter was not raised below and was only superficially raised on this appeal." How strictly the Court would have dealt with such an argument is suggested (para. 61) at the conclusion of its decision:

Where s. 7 applies to provide use immunity in relation to compelled statements in subsequent criminal proceedings -- as it does in this case -- exclusion of the evidence is compulsory. And, although the evidence can be excluded under the common law duty because admission would render the trial unfair, it can also be excluded pursuant to s. 24(1) of the Charter. (see White at para. 89).

[28] Distinguishing the Present Case

The fact situation in this matter was not at all similar to the fact situations in either the White or the Soules cases. In White, the accused was actually told by the investigating police officer that she had to provide a statement under the Motor Vehicle Act of British Columbia. In Soules, it was the accident involving four vehicles which led to the investigating police officer's desire to identify the person or persons responsible for the accident which led to his inquiries about the drivers of the vehicles involved. He used that information he obtained for that purpose to identify the person he suspected of being drunk at the wheel of his vehicle. Constable Hart, on the other hand, was compelled from the start to identify the accused as the perpetrator of a criminal offence in order to deal with him from a criminal law perspective. This is customary practice when the police are investigating a crime, whether they are driving a motor vehicle or not. Constable Hart had a duty to investigate and prioritize his investigation into a possible impaired driving case involving the accused in the context of a motor vehicle accident and this is what he did.

Unreasonable Search and Seizure

[29] Reasonable and Probable Grounds

The final argument by the accused was that the taking of breath samples from him was a violation of his s. 8 Charter right to freedom from unreasonable search and seizure. The issue here is whether the arresting officer, Constable Hart, had reasonable and probable grounds to believe that the accused was guilty of driving his vehicle while his ability to do so was impaired before charging him. Viewing the state and position the accused was in when he arrived at the scene of the accident, Constable Hart quickly had little doubt about what was confronting him. The accused felt compelled during the whole course of the proceedings to admit what he had done. Having voluntarily told Constable Hart that he had had "Enough!" to drink, in the same breath he felt the need to admit that he had drunk "Too f …ing much!". Constable Hart did not need to press the point. When the officer arrived, he found the accused seated in the driver's seat of his vehicle, with the driver air bag deployed, collapsed on the vehicle's steering wheel, his vehicle stranded on a roadway median, smelling of alcohol to a degree that was obvious to the two witnesses whose help he sought as well as to the investigating officer who attended at the scene of the accident. Viewed both subjectively and objectively, Constable Hart clearly had reasonable and probable grounds to form the belief that the accused was guilty of impaired driving and that he should be required to provide the requisite breath samples mandated under the Criminal Code.

[30] Charter Rights Respected

The facts of this case demonstrate clearly that both police officers who dealt with the accused during the course of the evening on November 11, 2016 were very alive to his Charter rights and were at pains to put him into contact with a lawyer of his choice. At no time did they ignore or abuse his Charter rights under s.10(b) of the Charter.

Conclusion

[31] Conviction on Section 253(1)(a)

For the above reasons, then, I convict the accused of the offense of impaired driving contrary under s. 253(1)(a) of the Criminal Code.

Released: January 9, 2017

Justice A. L. Guay, Ontario Court of Justice