Court File and Parties
Date: September 1, 2017
Information No.: 2111-17-003955-T
Ontario Court of Justice
Between:
Her Majesty the Queen
-and-
Angelica Pigden
Before: Justice L.P. Thibideau
Heard on: June 14 and June 15, 2017
Reasons for Judgment released: September 1, 2017
Counsel:
- G. Smith, Counsel for the Crown
- J. Bothwell, Counsel for Angelica Pigden
Judgment
THIBIDEAU, J.:
Introduction
[1] Ms. Angelica Pigden is charged that on the 1st of January 2016 she operated a motor vehicle while impaired by alcohol and while her blood alcohol level exceeded the legal limit, contrary to sections 253.1(a) and 253.1(b) respectively, of the Criminal Code.
[2] The defence filed a Charter application, the evidence for which was blended with the trial. The trial evidence focused on the Charter issues, particularly the section 10(b) right to counsel.
[3] Ms. Pigden gave evidence applicable only to the Charter application.
[4] The trial centered on four issues: 1) Were two provincial offence officers acting as peace officers as defined by the Criminal Code when they interacted with the defendant? 2) Was the breathalyzer demand made as soon as practicable? 3) Is there a breach of the section 10(b) right to counsel? and 4) Has the Crown made out on the facts the case for impaired driving? The case for over 80 being admitted subject to the Charter issues and the sample demand timing.
[5] The essential elements of the over 80 case are conceded provided the readings obtained are admissible in law, which is argued by the defence that they are not.
The Facts
[6] Admissions were made at the beginning of trial:
Suitable sample readings were obtained of 212 and 216 milligrams of alcohol in 100 millilitres of blood respectively. Certificate of analysis Exhibit 1.
The toxicology opinion filed as Exhibit 2 that the blood alcohol level at 12:05 a.m. on January 1st, 2016 was between 210 and 255 milligrams of alcohol in 100 millilitres of blood. That is not disputed.
Identity of Angelica Pigden as the driver of the motor vehicle at the time and place alleged is conceded.
[7] The events happened at or on Murray Street in the City of Niagara Falls at the beginning of New Year's Day 2016. Annually, Niagara Falls hosts celebrations for New Year's Eve complete with a music concert and short fireworks that end at midnight. Attendance can be 50,000 people. Murray Street at the eastern or Falls end of the street, is at the base of a steep hill, and passes by the Skylon Tower complex. The upper or west end, at the top of the hill, enters the commercial, hotel and tourist area.
[8] On this evening Murray Street was blocked off to vehicular traffic to assist in controlling and affording safe passage for the thousands of people who use it to exit the concert area to go elsewhere.
[9] On this night at midnight the crowd surge was just beginning and within minutes was in full flow. The first interaction of the defendant driving her vehicle was with two Provincial Offences Officers, John Pascente and Kyle Pauls, with Pascente the active participant. At midnight or 12:01 a.m. that night, Pascente observed a silver Mazda van eastbound down Murray Street hill in the down bound lane. This in itself was not unusual. Earlier vehicles had come down the hill, stopped at the barricade set up to block down bound traffic, and then returned uphill. What was unusual about this vehicle was the driver proceeding to go around the barrier, entering the up bound lane in order to do so, to proceed down Murray Street in the wrong lane in the face of the crowd that was making its way up the hill. As a result of this observation Pascente stood in front of the vehicle, arm out, to stop the vehicle. It stopped.
[10] From the open passenger window he spoke to the driver, telling her the road was closed, and "you can't go down there".
[11] She told him she wanted to go to Silvertown. He repeated the road was closed. During this conversation he smelled marijuana in the van. He then went to the driver side window. He smelled alcohol on the driver's breath. He asked her to put the vehicle in park and to take the keys out of the ignition, and give them to him. She complied.
[12] This was to avoid risk of her going down the Hill according to Pascente. He asked Pauls to call dispatch for a "full-time officer" to attend. He asked her if she had had any alcoholic beverages. The first reply was one; the second reply was two. At the time Pascente observed no other problematic driving. He did see there were thousands of people walking up the hill; the sidewalk full and people using the street as well.
[13] Pascente explained in court he was concerned she might be an impaired driver, but he could not, and did not arrest because he did not have authority to do so. As per training he called for a full-time Niagara Parks Police Constable. At the time Pascente and Pauls had their uniforms on, augmented for winter weather. He had on a traffic vest, a neon green coat, blue pants with a red stripe, and a toque. The visible vest said, "traffic", not police. The shoulder patch showed, "Provincial Offences Officer".
[14] At the time there was some mixed snow and rain on Murray Street, and there was street lighting and ambient lighting, chiefly from the adjacent Skylon Tower complex and the casino, according to another witness, Kitson.
[15] This entire interaction was over a period of approximately three minutes. At 12:12 Niagara Parks Commission Police Officer, P.C. Kitson arrived on foot. He took over.
[16] P.C. Kitson obtained information regarding what had occurred. One fact Kitson believes he obtained from Pascente in the "constellation of facts" recited was that the van had been swerving. Either this is completely baseless or it refers to the one simple manoeuver of moving from the down lane to the up lane to go around the barrier. As a result of information received he suspected the driver of impairment by alcohol. He began his direct investigation. He spoke to the driver. She was driving to get home after a night out. During the conversation at the driver door window Kitson made the following observations. A strong alcohol odour on breath; speech slurred; eyes red and glossy; driver disoriented as to place. When asked where she was she said she was on Clifton Hill. Kitson stated in court Clifton Hill was three-quarters of a kilometre further east and it was brighter with lots of attractions on it, while Murray Street was a fairly quiet location usually. When she was asked for her driver's licence, which was readily available, visible to the officer, she produced her health card instead. She admitted to two alcohol drinks when asked. As a result at 12:19 a.m. he formed his opinion that he had reasonable and probable grounds to believe she was impaired by alcohol. It is also at 12:19 that the second officer, Rittner, arrives in a police cruiser. Because Kitson was on foot and Rittner had a vehicle the investigation was turned over to his superior, Rittner. The result, Kitson did not make a formal arrest or a breath demand. Both Kitson and Rittner asked the defendant to get out of the vehicle and Rittner placed her under arrest and escorted her to his cruiser. The time sequences for Kitson's involvement are these: 12:12 a.m. arrival on scene, which is corroborated by Pascente; 12:12 to 12:15 a.m. report from Pascente; 12:15 to 12:19 a.m. conversation with the defendant at her vehicle; 12:19 a.m. reasonable and probable grounds formed.
[17] Rittner stated his reasonable and probable grounds were the result of a number of factors requiring a conversation over several minutes. "It was something that progressed over several minutes". From 12:19 with Rittner's arrival to 12:22 the conversation and 12:22 request to exit the vehicle and arrest. This forms the initial part of that investigation by him.
[18] Kitson explained his understanding of what Rittner was doing, speaking to the defendant before arrest, "as though he entered into his own brief confirmation of what I had provided to him". The detailed involvement of P.C. Rittner includes a 12:05 radio call for a possible impaired, resulting in him moving to the scene. He came to the scene from the concert area, therefore his delay until arrival at 12:19 because of the crowd surge.
[19] As a result he had formed his opinion as well for an arrest for impaired and over 80. The indicia of impairment in his mind were the following: alcohol smell; eyes red and bloodshot; speech slurred; somewhat unsteady on feet once out of vehicle; position of vehicle on arrival was obvious safety hazard; no other vehicle had attempted the same manoeuver in the presence of two traffic officers, and there was no incident of anyone else misunderstanding the roadblock. He formed his reasonable and probable grounds at 12:22, with arrest, handcuffs, and a statement of right to counsel. He radioed for a female officer as well.
[20] He stated his arrest conduct was influenced by the emotional state of the driver — when he asked her if she understood the right to counsel her response was delayed due to her extremely upset emotional state — and the arrival of a female P.C., Amanda Smith. The driver's focus was on her children and she was upset and crying.
[21] In the words of P.C. Rittner, "it's like trying to talk to someone who is very, very, very upset or distraught and trying to have him trying to understand what you are saying. I'd rather have someone calm down and then ask the question again, where we can truly understand what is being said, and at that part Amanda Smith was arriving".
[22] With respect to the right to counsel conversation Rittner did not have a note of an "understood" or "no" answer. His custom, he explained in court, was to note yes's but not to note no's. He remembers the sequence as follows: right to counsel; immediate response, sobbing and crying; time allowed to collect herself; repeat of right to counsel; she stated she understood but did not want a lawyer. Hecklers in the crowd tried to interfere verbally, therefore he placed her in his cruiser. He had a concern regarding the crowd with only two police officers present. There was no demand given because of the crowd surge with hecklers, the driver needed time to calm down, and P.C. Smith was seen arriving on scene.
[23] In explaining what he did and did not do at arrest he said, "I gave her a moment just to settle down. At that point I could see Constable Smith coming up the hill and I knew already she was going to do the transport". The evidence with respect to the arrival of P.C. Smith is conflicting. P.C. Rittner says she arrived at 12:37 a.m. P.C. Smith says she arrived at 12:27 a.m. Based on all the evidence, including the demonstrated reliability of the notes of P.C. Smith, and the context of what occurred, I am satisfied as were counsel in argument, that the Smith version is accurate and the Rittner version is not. She arrived at 12:27 a.m.
[24] From 12:27 to 12:29 a.m. Rittner conveyed the situation and grounds to Smith who continued the arrest. Rittner gave evidence why he made the decision to transfer to Smith the responsibility to continue the arrest.
He was the only responsible senior officer on duty that night, with a crowd of up to 50,000 on hand. "I could not leave the scene reasonably unless it was ultimately necessary, or that there was no other possibility".
He wanted a female constable to address both pat-down search on arrest and do the transport to St. Catherine's for the breath samples.
[25] In fact, by happenstance, two female Provincial Offences Officers arrived on scene in the interim between the request for and the arrival of P.C. Smith. Under watch and direction of Rittner these two performed the pat-down search leaving transport as a continuing consideration.
[26] There is the evidence of P.C. Smith. As a result of a 12:22 a.m. radio call she arrived on scene at 12:27. She stated that her usual 20 to 30 second trip took five minutes because of the density of the crowd flowing uphill on Murray Street, the same direction she was going. She spoke to Pascente, Pauls, Kitson, and Rittner. Rittner told her he made the arrest and the two of them discussed her continuing the arrest. As a result she took the defendant from Rittner's cruiser and placed her in her own cruiser. At that time she herself made observations of the defendant: Very unsteady and swaying on her feet; requiring assistance from Smith for walking; alcohol on breath; face pale; eyes watery; crying; slurred speech; very upset; polite. Smith saw herself as continuing an existing arrest but she also formed her own independent conclusion the defendant was impaired by alcohol. "To ensure she understood what was occurring I decided to read her her rights again". The defendant understood and said she did want to speak to a lawyer but could not remember the lawyer's name. This was followed by a caution regarding silence, and this was understood with the comment, I don't drive when I drink. With a "yes" response to the understanding.
[27] The sample demand was read with a "yeah" response and the comment, "he made me have alcohol before I left, my ex". The sequence of her timing is therefore the following: 12:27 a.m. arrival on scene by Smith; 12:27 to 12:36 spoke with four officers, transfer defendant from Rittner's to her vehicle; 12:37 a.m. right to counsel read; 12:38 a.m. caution read; 12:39 a.m. sample demand read; and finally 12:44 a.m. leaving scene for St. Catharine's for breath samples on clogged roads.
[28] At the time she believed she was involved because, 1) There was a female prisoner; 2) She was the only duty officer with a cruiser on scene; 3) Rittner was a supervising officer and he had to stay to perform his supervisory role. She was aware that Rittner did the arrest, the right to counsel, and the caution. She re-did everything because the prisoner was transferred from one vehicle to another. She wanted to ensure the prisoner knew what was happening and where she was going and why. She did these things as soon as she believed she had formed her grounds.
[29] The defendant Angelica Pigden, gave evidence with respect to the Charter issues which includes the status of the two provincial officers. In examination in-chief she stated she observed Murray Street as very, very busy and congested. She could not see the barriers because it was too congested. She was stopped by an officer whom she thought was a police person. He asked questions and told her to shut the vehicle off. "I complied because I thought they were officers". She described, "them" radioing somebody for a vehicle to pick her up, and they were going to search my vehicle. They had to search me before I got into the other vehicle.
[30] In context these observations and memories partly relate to the activities of P.C. Kitson and Rittner, not solely the Provincial Offences Officers. The result is it is unclear which individuals she was talking about when she says she thought they were police, because they had badges and uniforms. There is no other evidence of the two provincial officers having badges, however, I am satisfied that it is reasonable to conclude there was a subjective belief on the part of the defendant that the two provincial officers were police officers.
[31] The defendant recalls that she wanted to call a lawyer but did not tell any officer until, "she had said it to me", that is the female Officer Smith. "I waited till she had read me my rights". Later the defendant contradicted herself to say each time she was spoken to about a lawyer she said she wanted one. She recalled being read her rights two times.
[32] This right to counsel issue is important for two reasons. It bears directly on the section 10(b) Charter issue. It also goes to the credibility of the witnesses on the Charter issue.
[33] The Crown witness evidence on this point is that P.C. Rittner was the first to provide the right to counsel when he formed his grounds and arrested the defendant in the presence of P.C. Kitson. The second right to counsel reading is done by Smith and both Smith and the defendant agree that she said yes to a lawyer at this time. Based upon all the evidence on this point I am satisfied that at the Rittner right to counsel the answer was no lawyer, and at the Smith right to counsel the answer was yes.
[34] This is in accord with the officers' evidence. It is also in accord with the first version evidence of the defendant.
[35] The evidence of Rittner regarding his memory accuracy, regarding the right to counsel interaction by itself, is problematic. However, his memory evidence is bolstered by the defendant herself who gave a detailed statement in court about saying no at first and then she eventually said yes - the first time to the female officer, complete with the statement that she waited till she was told of this request by the female officer informing her of her right to counsel. This detailed account by the defendant contradicts and trumps her later generic statement that each time she asked about a lawyer she said she wanted one.
[36] There is another credibility problem with the defendant's evidence. In court she stated she drove down the hill, tried to go around the barrier, once she saw it, to get a parking spot, which directly contradicts other evidence. According to Provincial Offences Officer Pascente, she told him she wanted to go to Silvertown. The direction she was going would accomplish this. P.C. Kitson said he asked her why she was driving down the road, her answer was to go home after a night out. The defendant's in court testimony defies common sense. If she realized before being stopped that she was where she was not supposed to be, the appropriate response would be to do what all other drivers did that night, turned around at the barrier and go back up the hill to the main tourist area for further travel or parking. In short, this stated reason for driving down the hill in court, and attempt at driving around the barrier, is not credible.
The Status of the Provincial Offence Constables' Issue
[37] The defence argues the Charter times begin to run from the initial interaction between the defendant and the provincial offence officer Pascente. At least to a reasonable person, like the defendant in this situation, he was a police officer. The Crown has produced evidence to show a statutory distinction between a peace officer and a Provincial Offences Officer. Only a peace officer as defined under section 2 of the Criminal Code can perform the functions listed in section 254 of the Criminal Code related to impaired drivers. The defence argues officers Pascente and Pauls are peace officers pursuant to section 2, and in particular a part of the definition contained therein, clause (c): "a police officer, police constable, bailiff, constable, or other person employed for the preservation and maintenance of the public peace, or for the service or execution of civil process". The defence focuses on the words "or other person employed for the preservation and maintenance of the public peace". There are two aspects to this. 1) Are provincial offence officers inherently peace officers? 2) Can persons who are not inherently police officers, by their actions or words, cause themselves to become peace officers for Charter purposes, as the defence argues?
[38] The documentary evidence presented amply demonstrates Pascente and Pauls as provincial offence officers do not have peace officer status. They may or may not be caught by the section 2 catchall phrase, "other person employed for the preservation and maintenance of the public peace".
[39] The Provincial Offences Act interpretation, section 1, defines a police officer as, "a chief of police or other police officer, but does not include a special constable or bylaw enforcement officer". Section 1(3) states, "a minister of the Crown may designate in writing, any person or class of persons as a Provincial Offences Officer for the purposes of all or any class of offences, that is, provincial offences, for which the province has jurisdiction. In fact section 2(1) of that Act specifically states that the designation of Provincial Offences Officers is intended, "to replace the summary conviction procedure for the prosecution of provincial offences including the previous provisions adopted by reference to the Criminal Code of Canada, with a procedure that reflects the distinction between provincial offences and criminal offences".
[40] This is carried forward in other provincial legislation.
[41] There is the relatively recent Highway Traffic Act regulation 366/09, which sets out who can be exempt from prohibition against using handheld devices when operating a motor vehicle. Section 2 spells out exemptions for law enforcement officers, like police officers and park wardens and conservation officers. Section 3 spells out exemptions for "other enforcement officers like Provincial Offences Officers", thus a distinction between peace officers, police officers, on the one hand, and Provincial Offences Officers on the other. Finally, I am satisfied that provincial offence officers like Pascente and Pauls, who are employed specifically by the Niagara Parks Commission, a government created authority, on the evidence, are not persons, "employed for the preservation and maintenance of the public peace". Rather, they have much lesser authority restricted to traffic control within the park, complete with parking enforcement, lost and found, and first aid as described by Niagara Parks Commission Police Constable Kitson. Not meeting the catchall section 2 peace officer definition criteria, Pascente and Pauls were not statutory peace officers. Did their words or actions change this so that they were peace officers, or perceived as peace officers, engaging Charter obligations?
[42] Pascente put up his hand, stood in front of the slow-moving van, and in effect ordered the defendant to halt her progress, just like a police officer would. However, this is also the very activity he was authorized to do by his status as a Niagara Parks Commission Provincial Offences Officer. He was dressed in uniform, taken by the defendant to be a police uniform. But the uniform was quite different from municipal police, and there were identifying signs he was not a police officer. His most visible clothing was the safety vest with "traffic" written on it. His shoulder patch, which may or may not have been visible, the evidence is not clear on this, said "Provincial Offences Officer". He had on a neon green windbreaker for visibility. His blue pants had a red stripe, and an undefined toque was on his head, not a police-like hat.
[43] The occurrence was at night, reasonably lit, but with visibility hampered by rain and snow. Could a reasonable person with facilities intact mistake Pascente for a police officer? Perhaps. Perhaps not. It is a reasonable possibility.
[44] The defendant, in essence, says he acted like a police officer. He halted her; he spoke to her about driving; where she was going; he asked her about alcohol. He told her to turn the van off; he took her keys. But he did not tell her to get out of the vehicle. He did not tell her he thought she was impaired. He did not perform any of the other detention or arrest functions associated with an impaired driving event. In short, his actions were compatible with some pre-arrest function, but also compatible with his traffic control function, coupled with a concerned citizen function.
[45] He knew there were thousands of pedestrians coming up the hill. He knew she intended to drive down the hill, passing the barricade to do so. There was an immediate traffic control safety concern. In dealing with that concern, he talked to the defendant. This resulted in a perceived smell of marijuana in the van, and then alcohol on breath. In these circumstances with obvious risk of harm, he told her to turn off the van and turn over the keys. This may well be a traffic control function. Certainly it is consistent with the conduct of an actively engaged concerned citizen.
[46] Did he know his operational boundaries? What was his mindset? In evidence he stated the following. For any Criminal Code offence we are advised to call a full-time Niagara Parks Commission Police Constable. He instructed Pauls to do this. His mindset was that he would have stopped her, but she could have kept going if she wanted to. She could have turned around and drove away. If she had not "agreed" to give him the keys, she could have turned around and kept going.
[47] He was not on the lookout for impaired drivers and had no training or policy statements regarding impaired drivers. Finally, he stated what happened regarding the impaired driver was, "just common sense". He stepped aside from any involvement once Officer Kitson arrived. While there is some apparent ambivalence in the testimony of Pascente in context, it is clear he went as far as his provincial offences authority would allow. He stopped the vehicle, "'cause it's your job not to let that vehicle continue", as Pauls put it. In fact Pascente's actions and words were consistent with Pauls' belief that if she wanted to leave it could not be prevented by him.
[48] The defence argues that section 32.1(b) of the Charter applies. Section 32.1(b) is as follows: "this Charter applies to the legislature and government of each province in respect of all matters within the authority of the legislature of each province".
[49] The defence argues that the statement of Smith in court that the Niagara Parks Commission is an agency of the Government of Ontario makes the Niagara Parks Commission a government agency equated to the government for Charter purposes. If Pascente was a government employee the Charter applies. The defence relies upon Regina v. Buhay, 2003 SCC 30, 2003 1 SCR 631, and in particular paragraph 25 thereof to support its argument.
[50] Buhay is a case where private security guards patrolling a bus station smelled odour of marijuana from a locked station locker. At their request a bus line agent opened the locker and marijuana was present. The contents were placed back in the locker, the locker locked, and a regular Winnipeg police officer was called for further investigation.
[51] On the issue of Charter rights and the conduct of the security guards the court said:
Section 32 of the Charter provides that its provisions apply to the Parliament and government of Canada, and to the legislature and government of the provinces. Accordingly the initial search of the appellant's locker by the security guards can only come under section 8 scrutiny if the guards can be categorized either as "part of government," or as performing a specific government function … or if they can be considered state agents ... For this latter determination it is important to focus on the relationship between the state (the police), and that private entity (the security guards).
[52] The test was enunciated in the context of police informers by Justice Yacabuchi writing for the Supreme Court of Canada, in the case of Regina v. Broyles, 1991 3 SCR 595:
A relationship between the informer and the authorities which develops after the statement is made, or which in no way affects the exchange between the informer and the accused, will not make the informer a state agent for the purposes of the exchange in question. Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship should the informer be considered a state agent for the purposes of the exchange. I would accordingly adopt the following simple test: would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?
[53] I highlight the following:
It is important to focus on the relationship between the state, police, and the private entity, the security guards.
[54] In our context the agent is said to be the Niagara Parks Commission, this much is clear. The best evidence available at trial is that the Niagara Parks Commission is a creature of provincial statute created to operate the lands occupied by and run by the Niagara Parks Commission. No one at trial provided any legal documents to assist in determining what the Niagara Parks Commission actually is. I take judicial notice of the Ontario government website that describes the Niagara Parks Commission as a commission but not as an agency. This is not determinative. I also take judicial notice of legislation of the Province of Ontario currently existing.
[55] Under the Pay Equity Act of Ontario there is a section involving the Crown as employer, Ontario regulation 387/07, which sets out prescribed bodies with Crown as employer. They include for instance the LCBO, Metrolinks, all colleges of applied arts and technology, and the Niagara Parks Commission. This has been so for many years. The Niagara Parks Commission exists by Act; the current version is RSO 1990, Chapter N-3 as amended. Section 4 sets out the general powers and duties of the commission.
[56] There is only one function we are concerned with. Section 22 allows the Niagara Parks Commission to make regulations subject to the approval of the Lieutenant Governor in Council with respect to:
(e) regulating and governing vehicular and pedestrian traffic in the parks or any part thereof, and prohibiting the use of any class of the vehicle in the parks.
[57] This confirms the traffic control function authority of the Provincial Offences Officers employed by the Niagara Parks Commission. It also shows that the Niagara Parks Commission is an arm of government, a creature of statute. But the defence's bald statement that once a government agency is identified their employees are government employees and the Charter applies, is not correct. Does that apply to LCBO staff, provincial college staff, even dispatchers employed by various police forces, or civilian receptionists and others employed by various police forces in the province? The answer must be no.
[58] In addition, there is a different reasoning which appears in paragraph 26 of the Buhay judgment.
[59] The court applied the test in the context of a search of a student by a school official. For the majority held in the case of M.(M.R.), the mere fact that there was cooperation between the vice principal and the police and that an officer was present during the search is not sufficient to indicate that the vice principal is acting as an agent of the police. There is no evidence of an agreement or of police instructions to the principal or vice principal that would create an agency relationship. The issue referred to in the school principal-police relationship scenario related to a student body search by a school official. The court held there must be more than mere cooperation between the intervening person and the state. There is no agency for Charter purposes unless there is an agreement or police instructions to the intervening person creating an agency relationship of peace officer.
[60] The very subsection relied on by the defence "other person employed for the preservation and maintenance of the public peace" is also exemplified in the situation of a military police officer, on base, fulfilling military police functions and therefore able to detain and arrest a civilian on base. The security guards in Regina v. Buhay supra were not agents of the police. Neither is an LCBO employee or a police receptionist, nor a provincial offences Constable, such as Pascente or Pauls, who lacked specific employment authority to preserve and maintain the public peace and who did not attempt to clothe themselves with such authority based upon their actions and their stated mindset.
[61] The defence argument that the Charter time period begins with the actions of Pascente and Pauls in relation to their actions in stopping the vehicle requiring the defendant without force to shut off the vehicle and hand over the keys, fails.
The Delay Issues
[62] The delay issues relate to the informational component of right to counsel and the as soon as practicable section 254(4) breath sample demand requirement.
[63] With respect to the timeliness of demand issue, the demand was made as soon as practicable if made within a reasonably prompt time in all the circumstances. Regina v. Squires (2002), 166 CCC (3rd) 65 (Ont. C.A.), paras 31, 32, also Regina v. Van der Bruggen.
[64] There are a myriad of circumstances which can constitute acceptable delay; one hour for medical treatment is one example Regina v. Squires, supra. The phrase "as soon as practicable" does not mean "as soon as possible". The forthwith requirement was deleted from the section in July of 2008, Regina v. Seed, [1998] O.J. No. 4362 (Ont. C.A.). But ancillary duties will not stop the clock running, for instance, waiting for a tow truck absent a situational emergency, Regina v. Katwaru, [2006] O.J. No. 5721.
[65] The test with respect to policing duties and delay is whether or not the duty performed was necessary before making the demand, Regina v. Memisevic, 2010 BCSC 203, [2010] B.C.J. No. 2299 (B.C.S.C.).
[66] There is no requirement the test be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably, Regina v. Payne (1990), 56 CCC (3d) 548 (Ont. C.A.), also referred to in Regina v. Van der Bruggen, supra.
[67] The correct approach looks at the entire chain of events with a view to determining whether the officer acted reasonably, while not giving unreasonable attention to other tasks, Regina v. Duong, [2015] O.J. No. 4717 (Ont. S.C.), approving the test set out in Van der Bruggen. A 59-minute delay for demand for health reasons, even under the old forthwith legislation, was acceptable. Additional steps including the demand should only be taken once the accused person is able to understand the questions and respond to them in a meaningful way. Regina v. Squires, supra.
[68] There are two issues, one Charter related the other statutorily mandated by the Code. They are intertwined on the facts with respect to the time periods involved. Based upon the analysis and conclusions regarding the involvement of the two Provincial Offences Officers, the time of detention and arrest commences upon the involvement by the first police officer on the scene P.C. Kitson.
[69] Kitson arrived at 12:12 a.m. He obtained information from Pascente. He formed his own subjective suspicion of impairment by alcohol as a result. He immediately began a direct investigation by interviewing the motor vehicle driver. He personally observed indicia of impairment by alcohol. At 12:19 in a timely way he formed his opinion of reasonable and probable grounds for impaired driving. It is at this time he should normally have commenced the usual process; exit vehicle, arrest for stated reason, right to counsel, caution, demand, and security search, with entry into the police vehicle for transport to obtain breath samples. However, P.C. Kitson had no vehicle; he could not transport. I accept the defence argument that this fact absent existential circumstance would not prevent the usual from happening, including the right to counsel and demand. But it is also at 12:19 that P.C. Rittner arrived on scene and immediately took over the investigation. From 12:19 to 12:22 Rittner did two things. He received a recounting of grounds from Kitson and he spoke to the driver in order to confirm alcohol use that day as the key component in the totality of indicia disclosed by Kitson, thus the Rittner opinion as to reasonable and probable grounds, formal arrest and handcuffing, and reading of the right to counsel, but no demand or caution at the time. He did radio for a female officer. The three-minute "delay" is only referable to necessary police conduct related to arrest. P.C. Rittner at that time was the sole police person able to transport in the minds of both officers. The alternative of Kitson transporting in Rittner's cruiser was never considered at the time and not investigated at trial. The decision which did take place, transfer of responsibility to the officer with the cruiser, was at least a reasonable one based on the circumstances.
[70] Once this decision was made, Rittner's secondary decision, to verify the key ground for arrest, alcohol consumption, accompanying the other indicia, and the three minutes taken for conveying of grounds and confirmation of grounds, is not delay for Charter purposes. This was time taken up with necessary police activity directly related to the defendant. Simultaneously he did verify some of the other conveyed indicia which were apparent to him in talking to the driver, but he had made up his mind regarding reasonable and probable grounds once he smelled alcohol based upon the grounds received. He stated he arrested for impaired and over 80. The over 80 conclusion is very problematic and was challenged by the defence. However, it is not dispositive in relation to the issues. It is, at best for the defence, overreaching by the officer, but does not negate the reasonable and probable grounds of impairment opinion, and subsequent conduct.
[71] There is an issue with the Rittner time periods. Right to counsel was read immediately upon forming reasonable and probable grounds for arrest. Thus there is no time issue at this point with respect to right to counsel. However there was no formal demand under section 254(3) and no caution by this officer at all. There is an apparent delay from 12:22 to 12:38 a.m. for caution, and 12:39 a.m. for demand; 16 and 17 minutes respectively.
[72] P.C. Rittner provided a detailed account of his reasons for delay. These reasons are intertwined. He had already radioed for a female officer for a pat-down search and transport. He gave detailed evidence that his arrest conduct was influenced by the driver's emotional state. When he first asked her if she understood the right to counsel her response was delayed due to her extremely emotional and upset state. Her focus was on her children and therefore she was upset and crying. He formed the opinion she was at risk of not understanding what was being said. He responded by taking time for her to calm down, to enable her to understand what was being said, and by necessary implication, what was about to be said. He then repeated the right to counsel which he says she understood.
[73] On the evidence accepted by me she did not say she wished to speak to a lawyer at that time. Concurrent with her visible upset, there was a second officer concern.
[74] The arrest and right to counsel took place near the defendant's vehicle, where the two of them were surrounded by a moving crowd of substantial density, by this time. It was apparent to crowd members what was going on. Some made comments like, Let her go. Some were drunk. P.C. Rittner accurately assessed there was a real risk of intervention or interference with the arrest process by some crowd members, which put at risk the safety of himself and Kitson and the detained defendant.
[75] Based on a combination of delay due to emotional upset and delay to avert risk from crowd members, he escorted the defendant to his cruiser and placed her in it without pat-down search, and without stating the demand and caution. The fact that he placed her in the cruiser without search is a strong indicator that the crowd threat was real, subjectively. These two reasons for delay are also on objective overview reasonable and realistic to this point, and do not violate the Charter in relation to informational component of the right to counsel, and the as soon as practicable requirement for the demand.
[76] Each of these two reasons for delay relate to the ability of the defendant to understand what was going on, to process a response that was meaningful, and to protect the safety of all three persons involved. The evidence is that concurrent with the arrest, right to counsel and upset at the scene, P.C. Rittner observed the vehicle of PC Smith making its way up Murray Street, with imminent arrival.
[77] There is a five minute gap to be accounted for. It is clear that P.C. Smith arrived at 12:27. Starting at 12:22 the following occurred over that five minute period. Rittner formed an opinion with immediate arrest and right to counsel. The respondent presents as upset and crying, focusing on her children, and not the right to counsel. The response to which is delayed. Rittner allows time for her to collect herself and settle down. Rittner gives her the right to counsel again. Rittner perceives potential safety threat from the crowd members. Rittner escorts the defendant to the cruiser and places her in it. The defendant is in the cruiser when P.C. Smith first observes her on arrival.
[78] These five minutes are fully accounted for. In addition the accounting is for two reasons that do not infringe Charter rights, particularly the right to counsel. They do not constitute circumstances that contribute to delay so that the subsequent formal demand was not given as soon as practicable. The facts reveal delay reasons regarding a questionable ability to understand on the part of the defendant, due to emotional upset, and crowd risk as issues directly related to the defendant, not ancillary duties, that were reasonable concerns that benefited the defendant personally.
[79] We are left with the last delay time period from 12:27 when the defendant was placed in the Rittner cruiser and 12:39 when P.C. Smith read the demand.
[80] Common sense dictates that, 1) The defendant was placed in the Rittner cruiser at 12:27, she was still upset, for how long is not known. The next contact by the defendant with a police officer is with P.C. Smith at 12:36, some nine minutes later. Smith makes no notes of upset or crying but she does say the defendant was polite.
[81] To ensure she understood what was occurring Smith decided to read her her rights again, after transferring the defendant to the Smith cruiser, from the Rittner cruiser. Effectively then there is a nine or 10 minute time period that stands out. The time from last contact by Rittner and arrived Smith on scene at 12:27, as one time, at the beginning of the time period. Then the right to counsel re-read at 12:37 followed by caution at 12:38, and demand at 12:39.
[82] The defence argues this delay was unnecessary and not permissible. Why could not Rittner have continued the process once the defendant was in his cruiser, safe from crowd interference? Rittner made the decision to cease his involvement with the defendant's arrest and process because he believed a female officer was more appropriate and he was needed to supervise other police on duty that night, with the huge crowd presence. It is unclear whether the time taken to allow the defendant to calm down was one minute or more. She appears to have calmed down enough in the 10 minute time period at issue to be processed by Smith. The time for the defendant to be informed and respond appropriately was therefore between nine minutes and nil minutes.
[83] The appropriate question for that time span is this: Were the reasons for delay in keeping with the considerations set out in Regina v. Squires, supra, Regina v. Payne, supra, Regina v. Van der Bruggen, supra, so that the demand was made within a reasonably prompt time or not? Two reasons, the defendant's upset and need for a female police officer are given. The other police supervisory duties do not form part of this constellation according to the case law, unless public safety was an issue. I am satisfied that the defendant was sufficiently upset by her situation that she was in danger of not understanding appropriately what was being said, and not being able to respond with a mindset that was appropriate to her best interests. I accept that she did not ask for a lawyer when asked by Rittner if she wanted one. I accept that she did say she wanted a lawyer when she was asked by Smith. This is a concrete manifestation of her initial mindset clouded by emotional upset.
[84] The female officer for female prisoner scenario benefits both the police and the defendant; the police, who are less at risk of complaint regarding process for search and transport if there is a female officer involved; the defendant, who will have a psychologically less intrusive search if a female officer is involved; a defendant who will likely be less stressed with a female transport person involved.
[85] The happenstance intervention of two female Provincial Offences Officers arrived on scene in the interim between the request for and the arrival of P.C. Smith. Under watch and direction of Rittner these two performed the pat-down search leaving transport as a continuing consideration.
[86] To not leave the park area to transport the defendant when P.C. Smith was readily available was a reasonable and responsible decision to make on an objective oversight basis. This time period is not time attributable or defined as unreasonable, unusual, or unnecessary delay. Rather, it is time characterized as reasonably prompt, as soon as practicable.
[87] It is required that in light of all the evidence available the decision taken was the result of an appropriate decision making process, taking into account appropriate considerations at the time. The Rittner time periods meet this test.
[88] We are left with the Smith time periods, 12:27 arrival on scene, coinciding with defendant in Rittner custody. 12:27 to 12:36 grounds provided and transfer of defendant from Rittner vehicle to Smith vehicle, complete with Smith making her own observations to augment information received. 12:37 right to counsel; 12:38 caution; 12:39 sample demand. It is clear Smith's own opinion as to reasonable and probable grounds, independent of information received, was not legally required. She saw herself as continuing an existing arrest for which grounds had been conveyed. The time at issue is some 10 minutes from arrival to right to counsel, and 12 minutes from arrival to demand.
[89] Realistically the time taken to speak to four people on scene was from a maximum of eight minutes and one minute to transfer a polite defendant to her cruiser, to a minimum of six minutes plus-or-minus with an extended time to do the physical transfer.
[90] At a minimum she did the following. During this time with no information or evidence as to what action took what time, she spoke to Rittner as to why she was there and what she was supposed to do. She spoke to some or all of the two Provincial Offences Officers and Kitson in addition to Rittner, to "gather information". Specific conversations with Rittner and Pascente were recalled by Smith. She believed she spoke with Kitson and Pauls but not with specific conversation memory. Each was spoken to separately. Rittner's conversation alone lasted about five minutes. She helped the defendant from the Rittner cruiser to her own cruiser with search. The time of travel increased because of the difficulty in walking requiring assistance.
[91] Collaterally she had enough time to make her own observations to form an independent conclusion as to impairment by alcohol. I am not satisfied on a balance of probabilities basis that Smith's actions were delayed by a subjective need to satisfy herself as to indicia of impairment. Rather, the two processes were parallel in time. The continued processing and the mental accumulation of indicia by Smith occurred together.
[92] The logical and common sense interpretation of her evidence is that the transfer from vehicle to vehicle was simply that; no conversation regarding the substance of the charge with the defendant; a direct transfer from one vehicle to the other with slight delay due to an inability of the defendant to walk properly. The reading of right to counsel caution and demand were in quick succession. The delay of six to eight minutes caused by the conversation with four others upon arrival was reasonable in the circumstances for Smith to understand what she was doing and why she was doing it. This avoided a very substantial risk — the risk of arbitrary detention and arrest of which she would have been a part if it existed. The reading of right to counsel after that already had been done is legitimized by the changed answer by the defendant to the question whether or not she wanted to speak to a lawyer. Smith's concern that the defendant understood what was occurring was demonstrated to be justified by this change of answer.
[93] For these reasons I find that the complaint with respect to the informational component of the right to counsel, fails. For these reasons I find that the requirement that section 254(3) demand be done as soon as practicable, has been met.
The Impaired Driving Charge
[94] There is no impediment to a finding as agreed that the readings obtained by the breath tech, acknowledged as accurate by the defence, were 212 milligrams of alcohol and 216 milligrams of alcohol respectively in 100 millilitres of blood. They were obtained in a lawful manner, excluding the two failed arguments.
[95] The certificate is Exhibit 1, the toxicology report is Exhibit 2, indicating that at 12:05 a.m., the time of last driving on the 1st of January 2016, the attributed readings would have been 210 to 255 milligrams of alcohol in 100 millilitres of blood. This is required in evidence because the samples were taken at 2:26 and 2:51 a.m. respectively, beyond the two hour limit. This letter as Exhibit 2. Based on the evidence there is a finding of guilt with respect to the 254(1)(b) charge. This leaves the 253(1)(a) impaired charge to be dealt with.
[96] Many indicia of impairment were observed consistently by as many as four witnesses. Driving was observed only by Pascente. He did not see any problematic driving in the usual sense of that word; he did not observe swerving as recounted secondhand by Kitson. The fact that the van was driven down Murray Street which was closed is a very weak indicator of impairment. Other apparently non-impaired drivers did the same thing that night. However, the attempt to manoeuver around the barricade, and to continue down bound in the up bound lane, with the beginnings of a huge crowd forming, as seen by Pascente, is a stronger indicator.
[97] This indicator is reinforced by the conversation between Pascente and the defendant. He told her the road was closed and she could not go down there. Her response was that she wanted to go down to Silvertown. Pascente felt it necessary to repeat the words, telling her the road was closed. This observed driving and first conversation with Pascente showed a significant lack of good judgment that could be caused by impairment, but not necessarily so.
[98] People readily smelled alcohol on her breath, four in all. Two people observed eyes as red and glossy or red and bloodshot. One person, Smith, observed eyes to be watery, but the defendant had been crying at the time. Three officers observed speech to be slurred during conversations. Kitson described her to be disoriented as to place; she believing she was at one place, Clifton Hill, while being at another, Murray Street. Two significantly different locations with respect to geography and streetscape. The defendant produced a health card instead of a driver's licence when the driver's licence was clearly visible and accessible as viewed by Kitson.
[99] She was somewhat unsteady on her feet after exiting the vehicle as seen by Rittner, and Smith stated she assisted her to walk from one vehicle to the other. Particularly Rittner and Smith found her to be upset and crying. However this could well be attributable to detention and arrest, an inability to continue her journey home, even with the other indicators present. That Angelica Pigden was the operator of the van is conceded. The Crown is required to prove beyond reasonable doubt that there was present a degree of impairment from slight to great. Regina v. Stellato (1993), 78 CCC (3d) 380 Ont. C.A., affirmed (1993) 90666 (3d) 160.
[100] However, it cannot be assumed that where a person's functional ability in some respects is affected by the consumption of alcohol, that this necessarily means the ability to drive it is automatically impaired. Where proof of impairment consists of observations of conduct, in most cases, if the conduct is a slight departure from normal conduct, it would be unsafe to conclude beyond reasonable doubt that the ability to drive was impaired by alcohol, Regina v. Andrews (1996), 1996 ABCA 23, 104 CCC (3d) 392 (Alta. C.A.), leave to appeal refused by SCC 106 CCC (3d) VI. In Regina v. Macsuga, a case on appeal to the Superior Court from the decision of Weinper, J. of our court, there was a situation, much as in our case, where the primary indicator of impairment were the observations of the accused like slurred speech, watery eyes, or bloodshot eyes, face flushed, along with a strong odour of alcohol. There was only one indicator of impairment related to driving conduct; speeding 102 kilometres in a 60 kilometre zone. The appeal judge dismissed the appeal, approving of the judge's understanding of the law and assessment of factual evidence. The trial judge applied the Stellato reasoning in arriving at her judgment. The judge was aware that individual indicators of impairment do not, on their own, provide proof of alcohol impairment beyond reasonable doubt. However the trial judge, on these facts, was entitled to conclude the indicators of impairment collectively led to the inescapable conclusion beyond reasonable doubt that at the time the defendant was impaired by alcohol.
[101] This approach to the law and the evidence is present in a very recent case of Regina v. LeBel, 2017 ONSC 2059. This is another appeal to the Superior Court, this time from the decision of Jennis, J. of our court. There were several personal observation indicators of impairment by alcohol and only one observed driving indicator. The e-bike was operated in an apparently erratic manner swerving within the lane. The Regina v. Stellato standard for determination of impairment is still the law. If the evidence is frail there can be no finding of guilt. If the evidence of impairment establishes beyond reasonable doubt any degree of impairment, from slight to great, the offence is made out.
[102] The issue is one of fact, and the outcome is dependent and must be decided on the particular facts of each case, evidence indicating impairment or the lack thereof.
[103] The comments of Jennis J. at trial were repeated and approved at paragraph 28.
I am aware of the principles stated in Regina v. Stellato and the fact that the slight impairment of alcohol must be related to the accused's ability to [properly] operate a motor vehicle. Given the evidence which I have accepted and applying the legal principles, I find the Crown has proven the elements of that offence beyond reasonable doubt ....
[104] And at paragraph 33:
... the burden [of proof] is on the Crown to prove all the essential elements of the offence beyond reasonable doubt and there is no onus on the accused to prove his innocence.
[105] The appeal judge went on to say that he was satisfied that Justice Jennis, "considered the evidence cumulatively and did not evaluate individual components on a piecemeal basis, therefore properly assessing the evidence in keeping with Regina v. Cenconi, [2001] O.J. No. 5189 paras 44-47, and Regina v. Randall, 2015 ONSC 5892.
[106] In Regina v. Kisten, 2015 ONCJ 739, there was a conviction on several observed indicia of impairment related to the body of the accused, and poor driving conduct, like weaving within the lane, rapid acceleration, and deceleration. In doing so the presiding judge applied the legal principles well summarized by Justice Hill sitting in appeal in the Superior Court in Regina v. Elvikis, [1997] O.J. No. 234 paras 24-29, as follows:
Impairment is an issue of fact which the trial judge must decide on the totality of the evidence.
If the evidence of impairment is ... frail, when considered as a whole, as to leave the trial judge with a reasonable doubt as to impairment, the accused is entitled to be acquitted.
Circumstantial evidence as to impairment, advanced by the Crown, whether driving conduct, physical symptomology or physical test results, or some combination thereof, will have probative value on the issue of impaired ability to drive a motor vehicle, more or less, depending upon the nature and strength of the evidence adduced. Items of circumstantial evidence are not to be viewed in isolation but the entirety of the evidence must be considered in determining whether the prosecution has discharged the burden of proof.
The more minimal the driving conduct the fewer the existing classic signs of impairment, and the better the achievements of the accused in any physical testing ... the more difficult it may be for the trial court to conclude that the ability of the accused to operate a motor vehicle was impaired by alcohol ...
If the evidence of impairment is sufficiently credible and probative as to establish any degree of impairment ranging from slight to great, the offence has been made out. ... The decision does not, however, stand for the proposition that the production of any evidence consistent with impairment, however minimal, requires the court to find the prosecution has discharged its persuasive burden of proving impaired operation of a motor vehicle. Such an approach impermissibly depresses the burden upon the Crown.
[107] In applying all of the foregoing to the facts of this case I must conclude the Crown case is made out beyond reasonable doubt with respect to the essential elements of the offence of impaired driving. Angelica Pigden was driving the motor vehicle. She exercised poor judgment in context contributed to by alcohol induced impairment. Specifically she tried to drive around a barrier which was reasonably within her knowledge to know was there to prevent her from doing so. This in the face of a large group of people making their way towards her on a path of travel she intended to take; a substantial and immediate driving risk. Even when told she could not go down the street she continued to intend to do so, to the extent that a Provincial Offences Officer felt compelled to tell her to shut off the vehicle, and take her keys. Concurrently, she showed a number of the traditional bodily signs of impairment by alcohol, as well as functional impairment related to speech and walking. If the spectrum is impairment from slight to great the impairment here was not on the bottom rung of the impairment ladder.
[108] The impairment related directly to the ability to operate a motor vehicle as demonstrated by her driving decisions and conduct, showing a lack of awareness of her true driving situation. As in Kisten it is the cumulative effect of the evidence, substantially corroborated, which satisfies me beyond a reasonable doubt. This is based on a consideration of the whole of the evidence, rather than the separate constituent parts. There is a finding beyond reasonable doubt that Angelica Pigden operated a motor vehicle in a public place on the date charged when impaired by alcohol.
Dated at St. Catharines, Ontario
This 1st day of September 2017
The Honourable Justice L.P. Thibideau