Court File and Parties

Court File No.: Kitchener Info # 16-4770 Date: 2018-03-06 Ontario Court of Justice

Between: Her Majesty the Queen — and — Andrew Davis

Before: Justice Scott Latimer

Heard on: January 29, February 1, March 1, 2018

Reasons for Judgment released on: March 6, 2018

Counsel:

• J. Thompson, counsel for the Crown
• E. Uhlmann, counsel for Mr. Davis

Reasons for Judgment

I. INTRODUCTION

[1] Andrew Davis is charged with having care or control of a motor vehicle while impaired by a drug. We conducted a trial over three days – January 29, February 1, and March 1, 2018. Mr. Davis filed a Charter application, and the Crown sought to admit certain statements as voluntary. We conducted a blended evidentiary hearing with regard to these issues and the trial proper.

[2] On March 1, I provided my ruling on the Charter application with reasons to follow. Mr. Davis then elected to call no evidence and I heard final submissions. Below are my Reasons on both the Charter application and the trial. Summarily stated, I have found a violation of section 10(b) of the Charter by virtue of the police failure to provide rights to counsel without delay upon arrest, as constitutionally required. That violation led to the exclusion of certain relevant evidence: items observed and seized from Mr. Davis' car, and his post-arrest statements to the police. I am not satisfied the violation requires the exclusion of the DRE evidence and the urine sample. I have concluded however, on the trial record as presently constituted, that the Crown has not proven that Mr. Davis was impaired by a drug at the time of his care or control of his motor vehicle.

II. THE FACTS

[3] The police received a civilian complaint regarding bad driving. Constable Tyler Shipp located the complained-of vehicle in a private parking lot near a McDonald's in Waterloo. Andrew Davis, the defendant, was in the driver's seat. At 12:07 p.m., Shipp approached the car and interacted with Davis. The fact that Davis was in care or control is conceded in this case. Shipp spoke to Davis through an open window. Davis had sunglasses on, no shirt, and was in a slightly dishevelled state. Shipp asked for documents, which were provided. He suspected Davis had been driving while impaired based on the details of the civilian complaint, and was trying to assess impairment and its potential source. During their conversation, Shipp described Davis' speech as garbled, as if he had marbles in his mouth. He could, however, understand him. Shipp could not see Davis' eyes through his sunglasses. I note that it was a sunny day. The officer directed Davis to exit his vehicle, as he wanted to "further observe him" and ascertain whether any indicia of impairment were present. He agreed in cross-examination that his demand to have Davis exit the vehicle was a form of sobriety testing.

[4] Davis exited without any obvious issue, but had to stabilize himself on the car despite Shipp's direction to not do so. Shipp also directed Davis to remove his sunglasses. Davis did so. This revealed "swollen, half open, very drowsy" eyes. Shipp believed he had the "potential of an impaired driver", and tried to detect an odour of alcohol on Davis' breath, but was unsuccessful. Davis provided a statement that he had not drank for six months and had not been using drugs.

[5] Constable McKenna then arrived on scene. He was a trained Standard Field Sobriety Test (SFST) officer; Shipp was not. Shipp explained his observations to McKenna, who agreed to take over the detention. Shipp testified he did not believe he had a reasonable suspicion regarding drug impairment before McKenna's arrival, but his investigation was progressing in that general direction. Shipp watched as McKenna tested, and subsequently arrested, Davis. Shipp then went to search the vehicle, presumably incident to Davis' arrest. He also received certain information from Davis' female passenger, who was not called as a witness at trial. Neither were the civilian complainants, I note, who apparently may have had some information regarding driving conduct. A variety of drugs, mostly prescription, and drug paraphernalia, including what Shipp thought was a meth pipe, were located in the car.

[6] Constable McKenna testified he arrived at the parking lot at 12:11 p.m. He observed the car, the female passenger, and the interaction between Shipp and the defendant. He spoke to Shipp to form grounds. He also spoke to Davis and the passenger. At 12:15 p.m., he made a demand for a SFST. Davis agreed to participate. McKenna described the SFST process at length. I do not see the need to go through it in detail, as the specific testing that occurred is not in issue, and the results are not admissible for anything other than grounds. Suffice to say, for a young officer I was impressed with McKenna's ability to testify with regard to the SFST process. However, as I will review later, I believe McKenna was deficient in another important area of his testimony.

[7] Based on McKenna's observations from the roadside testing, he was satisfied that he had grounds to arrest Davis at 12:28 p.m. He handcuffed Davis behind his back and placed him in the secured rear area of the cruiser. He then went to "talk to Constable Shipp, who had been present for the SFST test and… was searching the car at the time… I was observing him for a few minutes and then I returned to my vehicle and read Mr. Davis' rights to counsel and caution". The rights were read at 12:36 p.m., eight minutes following the arrest.

[8] When asked by Crown Counsel why he delayed rights, McKenna responded, "I guess I believed that there possibly could be drugs, which would change his jeopardy and I would have to read his rights to counsel and caution again".

[9] The reading of the rights took one minute. A caution and DRE demand followed, and at 12:58 p.m. McKenna eventually left the scene with Davis to go to the police station. They arrived at 1:02 pm.

[10] At 1:40 p.m., McKenna spoke to Constable Green, a Drug Recognition Expert (DRE) officer, and provided him his grounds for arrest. McKenna also described the various passages of time while at the station, which I understand are not in issue in this particular case.

[11] Constable Green testified to his contact with Mr. Davis at the police station. He was a qualified DRE officer. His examination began at 1:51 p.m. The standard DRE demand was provided to Davis. He was required to participate in "an evaluation": see exhibit 2 for the precise language of the demand. Davis was then asked questions, such as whether he had eaten recently, when he had last slept and, importantly, whether he had recently consumed drugs, and what specific drugs had been consumed. He gave answers that are properly considered to be admissions. The standard, regulation-approved DRE testing followed. It is displayed on the video, and Green and Constable D'Aost, another DRE officer, described it in court. In their view, Mr. Davis failed the various tests. He was "on the nod", meaning sleepy and drowsy, but also still talkative and cooperative. His balance was not affected or impaired during their observations at the station. I should say at this point that, as an observer watching the video of the DRE examination, it was not apparent to me that Mr. Davis was impaired. His movements seemed relatively normal at many points during the DRE examination. During one test, where he had to stand with his eyes closed and count to thirty seconds in his head, he was able to do so easily. Later, when he had to stand on one foot, he was unsteady at certain points, but steady in others. He certainly did look tired, however, throughout the examination.

[12] At a certain point he was removed from the DRE room to conduct a walk-and-turn test. To the best of my observational abilities, he seemed to complete the test reasonably well. At the conclusion of testing, Cst. Green opined that Davis' ability to operate a MV was impaired by a drug, specifically a central nervous system depressant. He made a further demand, this time for a urine sample, which was collected and sent to the Centre of Forensic Sciences (CFS).

[13] Dr. Daryl Mayers, a forensic toxicologist, testified from the CFS. His expertise and qualifications were not in dispute. He tested Davis' urine sample, which disclosed the presence of various drugs, which are listed in Exhibit 1, a copy of his report. These drugs consisted of Clonazepam, cocaine, and other chemical compounds.

[14] Dr. Mayers adopted his report during his testimony and described the significance of the results. He described the collection process: "Urine is a collected sample, we form urine in the kidneys and it is stored in bladder". He described how anything stored in the bladder is considered by scientists to be outside of the body (i.e. not circulating within the body), so therefore detected substances within the bladder would not currently be having an effect on an individual. With regard to the opinions contained in his expert report, he advised that:

…detection of drugs is indicative of prior drug exposure or administration. Urine findings cannot be used to determine the effects, including impairment, of a drug on an individual at a given time.

[15] Dr. Mayers described Clonazepam as belonging to the benzodiazepine class. It is a central nervous system depressant, and has a variety of medical uses, such as anti-seizure medication, or treatment for panic disorders. Clonazepam could cause sleepiness, but it depends on individual tolerance. Its indicia often mimic the effects of alcohol. Mayers advised that memory loss and confusion can occur with the ingestion of any depressant. The detection of Clonazepam in Davis's urine means that the drug could have been consumed recently, or as late as twenty to sixty hours prior to the urine being excreted. Dr. Mayers testified that Clonazepam could be in an individual's body for "days, possibly weeks" and still detectable in urine.

[16] With regard to cocaine, Dr. Mayers explained that it is a stimulant with stimulating side effects such as fuzzy vision and, in rarer cases, hallucinations. It can effect the ability to drive a motor vehicle. When a person consumes cocaine it passes out of their body, but not their bladder, within three to six hours. A related chemical compound, for which the doctor used the short form BE, remains in an individual's system longer, and the detection of BE is indicative of prior cocaine use that may have been over a day from the urine sample's provision.

[17] More generally, Dr. Mayers advised that the effect of drugs on human behaviour can be subtle, and we may not always see outward appearances or indicia, but the presence of such appearances or indicia are "clear evidence of impairment".

[18] The defendant did not testify on either of the applications or the trial proper.

III. LAW & ANALYSIS

A. The Charter Application

[19] The applicant challenges his detention at the roadside. He submits that it was without lawful authority and therefore arbitrary. Further, as a result, he was detained during a police investigation without recourse to his constitutionally-mandated section 10 rights. These violations, it is submitted, infect the subsequent police investigative decisions, amounting to an unlawful arrest. He further submits that, post-arrest, his section 10(b) rights were violated during the eight minute delay between his arrest and the provision of rights to counsel. This panoply of violations justifies exclusion of all evidence seized from the applicant at the roadside and later at the police station.

[20] The Crown response is that the officers' were acting lawfully at the roadside and no Charter violation took place. With regard to the post-arrest s. 10(b) issue, Mr. Thompson asks me to look at the circumstances of this particular delay and conclude that it is not necessary to exclude any evidence under s. 24(2).

(a) The Legality of the Applicant's Detention: Location

[21] Police officers in Ontario have clear statutory authority to investigate driver sobriety when a motorist is observed operating his vehicle on a public roadway. As Mr. Uhlmann points out, however, the police did not observe his client driving on a "highway", as the Highway Traffic Act defines that term. He was exclusively seen in a private parking lot. Relying on a decision from this court, R. v. Campbell, 2009 ONCJ 157, he submits that there was no statutory authority for the detention, and that, post-Mann, a reasonable suspicion is required for a detention to be lawful: see Campbell, supra, at para. 25. With respect, I do not agree with the conclusions reached in Campbell. The section 9 jurisprudence in this area is, as the Court of Appeal said very recently in R. v. Nield, 2017 ONCA 722, "settled". In that case, Mr. Nield was observed driving on a highway. He then pulled into a parking lot, where he was detained by the officer for the purpose of a random sobriety check. At trial, a finding was made that the detention was without lawful authority and therefore arbitrary. At the summary conviction appeal level, a Crown appeal was allowed and a new trial ordered. The SCAJ found that while the HTA did not apply, the common law ancillary powers doctrine did. Mr. Nield appealed further, but leave was denied by the Court of Appeal.

[22] In my view, at minimum, the police have common law authority to randomly detain motorists on private property. If the motorist is observed driving on a public roadway but is ultimately detained elsewhere, both the HTA and the common law apply. Leaving aside s. 8 territorial issues that might arise but do not on the present facts, such detentions are not arbitrary under s. 9 of the Charter. The purpose behind the statutory scheme, and the related ancillary common law power, is to allow for the proper identification and investigation of impaired motorists. The risk posed by their conduct exists everywhere that vehicles are driven including locations, like parking lots, where they share space with pedestrians: See: R. v. Smith (1996), 105 C.C.C. (3d) 58, at 68-69 (Ont. C.A.); R. v. Vander Griendt, 2014 ONCJ 295, at para. 15, aff'd 2015 ONSC 6644. As Justice Killeen of the Superior Court wrote in R. v. Calder, [2002] O.J. No. 3021 (S.C.J.), aff'd, [2004] O.J. No. 451 (C.A.), an officer's investigative powers are not "magically suspended or exhausted at the curb of a public street".

[23] There is a long line of authority permitting the police to conduct driver sobriety checks on both public and private property. Since Dedman v. The Queen (1985), 20 C.C.C. (3d) 97 (S.C.C.), Canadian criminal law has acknowledged that these brief detentions of individuals participating in the regulated activity of driving are a justifiable use of police power associated with their duty to investigate crime and protect life. In R. v. Ladouceur (1990), 56 C.C.C. (3d) 22, at 37-38, a majority of the Supreme Court acknowledged the ongoing vitality of this common law detention power during their section 1 analysis. This common law detention power has been more recently affirmed by the Superior Court of Justice in R. v. Dillon (2006), 32 M.V.R. (5th) 13 (Ont. S.C.J.) per Molloy J., R. v. Vander Griendt, supra, per Dawson J, and R. v. McLelland, 2012 ONSC 7207, per Tulloch J. (as he then was).

[24] I additionally do not accept the applicant's related argument, drawn again from the Campbell decision cited, that post-Mann all detentions require reasonable grounds to detain. This conclusion is not borne out in the authorities. Context matters. The Court of Appeal, in Simpson, and the Supreme Court of Canada, in Mann and Clayton, have made clear that the context in which a detention arises is relevant to an assessment of whether that detention was a justifiable use of police power. A road block for public safety reasons (Clayton) is different from a particularized criminal investigation (Simpson), which is again different from a random stop for the limited purpose of ascertaining driver sobriety and vehicle fitness (Dedman/Ladouceur). In Clayton, it should be noted, only a generalized, non-individualistic suspicion existed, yet the detention was nevertheless adjudged lawful by a majority of the Supreme Court: see R. v. Clayton (2007), 2007 SCC 32, 220 C.C.C. (3d) 449 (S.C.C.) at 460-464; R. v. Simpson, (1993), 79 C.C.C. (3d) 482 at 499-500; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 at paras. 26-29; Vander Griendt (S.C.J.), supra at paras. 50-68.

[25] In conclusion, the police were legally authorized to detain Mr. Davis for sobriety check purposes in the parking lot where he was located. The applicant's further argument, however, is that their conduct during that detention was in any event unreasonable, and therefore unlawful.

(b) The Legality of the Applicant's Detention: Reasonableness

[26] Again, I find I cannot accept the applicant's argument that his detention by Constables Shipp and McKenna was unlawful and outside of the officers' authority. The detention began at 12:07 p.m. The applicant was asked questions while sitting in the driver's seat of his vehicle, before being directed out by the officer. The purpose of this direction was for Shipp to continue assessing the sobriety of the applicant. This is a common investigative step that is entirely reasonable. Once he was standing next to his vehicle, the applicant was asked additional questions by the police while investigative observations were made. At 12:11 p.m., a trained SFST officer arrived (McKenna), and at 12:15 p.m. the s. 254(2)(a) Code demand was made.

[27] The law in this area is governed by the Supreme Court of Canada's decision in R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, 196 C.C.C. (3d) 481, which draws from Justice Doherty's instructive language in Smith, cited earlier in this judgment: see Orbanski at paras. 23-28, 41, 44-46. The majority of the Court stated the following in paragraphs 45 and 46 of the judgment:

The screening of drivers necessarily requires a certain degree of interaction between police officers and motorists at the roadside. It is both impossible to predict all the aspects of such encounters and impractical to legislate exhaustive details as to how they must be conducted….

Doherty J.A. provided a useful delineation of the scope of the police power to check the sobriety of drivers at the roadside in Smith where he stated that "a procedure cannot be reasonable . . . unless it can be performed at the site of the detention, with dispatch, with no danger to the safety of the detainee and with minimal inconvenience to the detainee" (p. 73).

[28] In my mind, the interaction in the present case meets this definition. It was done at the scene, in a relatively brief period of time, and did not in any way endanger or inconvenience the applicant. I do not accept that he was humiliated by the process, as counsel suggested. The detention was lawful and a reasonable limit on the s. 10(b) right. What occurred was not an arbitrary detention.

(c) The Failure to Provide Rights to Counsel "Without Delay"

[29] I do accept, however, counsel's argument that what occurred following Mr. Davis' arrest was a Charter violation. Constable McKenna did not provide rights to counsel upon arrest without delay, or "immediately", as the Supreme Court of Canada clarified in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, 245 C.C.C. (3d) 112. There has been significant judicial commentary in this regard recently, and I can do no better than rely upon my colleagues' recent past decisions, such as R. v. Mitchell, 2018 ONCJ 121 (Justice Parry in Kitchener); R. v. Turcotte, 2017 ONCJ 716 (Justice McInnes in Newmarket); R. v. Campbell, 2017 ONCJ 570 (Justice Felix in Oshawa), and R. v. Sandhu, 2017 ONCJ 226 (Justice Schreck, at the time sitting on the Ontario Court in Brampton). Justice Schreck's decision in particular contains a lengthy list of prior decisions involving this form of s. 10(b) violation. At paragraph 7 Schreck J. states, with regard to the Supreme Court's 2009 ruling in Suberu:

As the Court made clear, "without delay" means "immediately". It does not mean "as soon as practicable". It does not mean after the arresting officer has attended to other aspects of the investigation, such as speaking to the occupants of the vehicle or writing notes. Cst. Darcy clearly did not advise Ms. Sandhu of her right to counsel immediately. Crown counsel conceded that this resulted in a violation of s. 10(b) of the Charter. She was correct to do so.

In the present case, Crown Counsel's concession was similarly well-founded.

(d) Section 24(2)

[30] The test for exclusion of evidence under s. 24(2) of the Charter was described by the Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, 245 C.C.C. (3d) 1. The relevant evidence is assessed during a three-part analysis, which assists in focusing the balancing of interests that must ultimately occur:

1. The seriousness of the Charter-infringing state conduct;
2. The impact of the breach on the Charter-protected interests of the accused;
3. Society's interest in an adjudication on the merits.

[31] A helpful method of gauging the significance of Charter-infringing conduct is to determine where it falls on a spectrum of seriousness, with "inadvertent or minor violations" at one end and a blatant or brazen disregard for Charter-protected interests at the other: R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.); R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at paras. 23, 39.

[32] I find the s. 10(b) violation in this case to be significant, and much closer to the "blatant disregard" end of the spectrum. This issue arises again and again across the province. It has been addressed previously in this jurisdiction: see Mitchell, supra; R. v. Hanif, 2015 ONCJ 223, 121 W.C.B. (2d) 444. It has been addressed innumerable times in other jurisdictions across Southern Ontario. Suberu itself is in no way recent. It is concerning that a new officer, like McKenna, who presumably has gone through recent police training, was not aware of this constitutional requirement. While I found that he was well-informed in other areas, such as SFST testing, this was a significant failing on his part. This branch of the test points strongly towards exclusion.

[33] With regard to the applicant's Charter-protected interests, I accept that they were minimally impacted; he declined counsel when the rights were read eight minutes later. As Justice Felix said in Campbell, supra, at para. 46, the informational component of the right to counsel was "delayed but not denied". This factor points towards admission.

[34] With regard to the third branch of the Grant test, I accept that an adjudication on the merits is important. Operation of a motor vehicle while impaired by a drug is of serious societal concern in 2018. I accept that some of the evidence, in particular the urine sample, is highly reliable. I do note that the DRE evidence differs, I think not insignificantly, from the type of bodily intrusions that occur during breath sample testing. I have also considered the importance of the sought-to-be-excluded evidence from the Crown's case. Finally, the long term repute of the administration of justice is to be considered, given the Charter breach at issue and the frequency with which it continues to arise, nine years after Suberu. Balancing all of the respective considerations, the applicant's result under s. 24(2) is mixed. In my mind, the different categories of evidence justify different results in this particular set of facts.

[35] With regard to Davis' statements following his arrest, I note that the s. 10(b) Charter right is principally concerned with the right against self-incrimination: see R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, 259 C.C.C. (3d) 443. I have a concern that Mr. Davis may not have been fully aware of his right to silence at the time he spoke to Constable Green during the DRE examination. While he ultimately declined counsel when his rights were read to him, there is, in my mind, sufficient connectivity between the s. 10b violation and the applicant's subsequent decision to speak to the police that I believe exclusion of the statements is justified. Further, the search of his motor vehicle occurred contemporaneously with the s. 10b violation. I accept that the applicant has established a basis for exclusion of the items located and seized from the inside of his car. Both categories of evidence are excluded pursuant to section 24(2) of the Charter.

[36] With regard to the DRE evidence and the urine sample, I am not satisfied that their exclusion is warranted. I believe the long term interests of the justice system are served by the partial exclusion I have documented above. I am not satisfied that the remaining evidence needs to be excluded, given the minimal s. 10b impact on the applicant and society's interest in an adjudication on the merits. I note the absence of any ss. 8 or 9 Charter violation as significantly important to this result.

B. A Brief Word on Voluntariness

[37] As I have excluded the DRE statements, the voluntariness issue does not directly arise. For the sake of completeness, however, I can advise I would have excluded those statements from evidence pursuant to R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, 147 C.C.C. (3d) 321, for reasons expressed to counsel during submissions. Asking a detainee incriminating questions, in the shadow of the DRE demand, is problematic. I note that the questions are presented as part and parcel of the testing procedure. They are asked by the DRE officer, following the s. 254(3.1) Code demand, in the same room and on the same worksheet as the drug recognition evaluation itself. This is suboptimal from a voluntariness perspective, given the placement of the onus and the language of the DRE demand, which can be construed as legal direction to answer the subsequent questions asked. Questioning an arrested person in this manner has the potential to erode the cautions originally provided and undermine the right to silence.

C. Trial

[38] There is no doubt that Mr. Davis was in care or control of his car when he sat in the driver's seat in the parking lot. The significant remaining issue is whether, at the time, his ability to operate the car was impaired by a drug. The Crown bears the exclusive onus in this regard; the defendant need not prove anything. After having heard submissions in this case, I have concluded that a review of some framework principles is required.

[39] Mr. Davis is presumed innocent. The Crown bears the burden of displacing that presumption with proof beyond a reasonable doubt that he committed a criminal offence. The defendant can only be found guilty if I am satisfied to this exacting standard with regard to all of the essential elements of the criminal charge alleged; in this case, impaired care or control of a motor vehicle. In this trial, Mr. Davis has chosen not to testify, as is his right. As Justice Bora Laskin, as he then was, said in R. v. Appleby, [1972] S.C.R. 303, 3 C.C.C (2d) 354, at page 365:

…the presumption of innocence gives an accused the initial benefit of a right of silence and the ultimate benefit (after the Crown's evidence is in and as well any evidence tendered on behalf of the accused) of any reasonable doubt.

[40] Proof beyond a reasonable doubt is inextricably linked with the presumption of innocence that applies in all criminal trials. A reasonable doubt is one based on reason and common sense, and logically derived from the evidence or the absence of evidence: R. v. Lifchus, [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1, at para. 36; R. v. Sanichar, 2012 ONCA 117, 280 CCC (3d) 500, at para. 46. In Lifchus, a case dealing primarily with reasonable doubt jury charge language, Justice Cory wrote the majority decision for the Supreme Court. At para. 27, he memorably stated the following:

First, it must be made clear to the jury that the standard of proof beyond a reasonable doubt is vitally important since it is inextricably linked to that basic premise which is fundamental to all criminal trials: the presumption of innocence. The two concepts are forever as closely linked as Romeo with Juliet or Oberon with Titania and they must be presented together as a unit. If the presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminal law. Jurors must be reminded that the burden of proving beyond a reasonable doubt that the accused committed the crime rests with the prosecution throughout the trial and never shifts to the accused.

[41] Further, the Crown's theory of impairment in this case involves circumstantial evidence. The Supreme Court of Canada recently reviewed circumstantial reasoning in R. v. Villaroman, 2016 SCC 33, 338 CCC (3d) 1. I have found helpful the summary of that judgment found in R. v. Gill, 2017 ONSC 3558, 140 W.C.B. (2d) 237, a decision of Justice Michal Fairburn, at the time sitting on the Superior Court of Justice. I particularly note paragraphs 9 through 13 of Gill, which I have excerpted from below:

• In R. v. Villaroman, Cromwell J. reviewed the correct approach to circumstantial evidence and the inference drawing process. Where one or more element of an offence relies largely or exclusively on circumstantial evidence, "an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits": Villaroman, at para. 30.

• Staying focussed on the question of whether circumstantial evidence admits of other reasonable alternative inferences, ensures that the trier of fact does not "fill in the blanks" or "jump to conclusions" too quickly: Villaroman, paras. 29-30.

• While previous cases speak in terms of other "rational" inferences, the unanimous Villaroman court settled upon the term "reasonable": see, R. v. Griffin, at para. 33, Villaroman, at paras. 32-34. As Cromwell J. noted in Villaroman, while "reasonable" and "rational" inferences carry the same meaning, and it is not in error to speak in terms of "rational inferences", the use of the term "reasonable" guards against any confusion that may arise from the use of "reasonable doubt" and "rational inference".

• Inferences consistent with innocence do not have to arise from proven facts: Villaroman, at para. 35. As Fish J. observed in R. v. Khela, at para. 58, the defence does not have to "'prove' certain facts in order for the jury to draw an inference of innocence from them". To make this a requirement for finding alternative rational inferences would be to reverse the burden of proof. Ultimately, the court must consider the "range of reasonable inferences that can be drawn" from the circumstantial evidence. As in Villaroman, at para. 35, "[i]f there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt."

• A theory alternative to guilt is not "speculative" simply because there is no affirmative evidence supporting the theory. A "theory alternative to guilt" can arise from a lack of evidence: Villaroman, at para. 36. Gaps in the evidence can result in inferences other than guilt, but they must be "reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense": Villaroman, at paras. 36-38.

• Reasonable possibilities and theories inconsistent with guilt must be considered, but this does not require the Crown to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": Villaroman, at para. 37, adopting R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. Other reasonable inferences must find support in logic and experience and not rest on speculation.

• As noted by Cromwell J., at para. 38, the "basic question" is whether the circumstantial evidence, "viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty".

[42] It is therefore clear that reasonable doubt may flow from the evidence or the absence of evidence, and reasonable inferences inconsistent with guilt do not have to arise from proven facts. To speak of an air of reality component, in a circumstantial case such as this is, in my respectful view, flawed Crown reasoning.

[43] Returning to the facts at hand, the Crown's case consists of the following circumstances: the observations of Davis by Shipp and McKenna in the parking lot, the DRE observations and opinion of Green and D'aost, the urine sample results and Dr. Mayers corresponding opinions. With regard to the parking lot observations, Mr. Uhlmann submits that the admissible evidence is further limited by the fact that his client was conscripted into providing many of the observations, and the admission of the results of that conscription would render the trial unfair.

[44] In aid of this submission, Mr. Uhlmann points to the line of cases beginning with R. v. Milne, [1996] O.J. No. 1728, 28 O.R. (3d) 577 (C.A.). In Milne, Justice Moldaver, writing for the Court, held that the admission of conscripted roadside evidence would render a trial unfair. However, Moldaver J.A. (as he then was), included the following qualification at page 590:

I wish to make it clear that this conclusion applies only to evidence obtained from compelled direct participation by the motorist in roadside tests authorized by s. 48(1) of the HTA … Thus, by way of example, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, blood-shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment . . . .

[45] This statement was clarified in R. v. Brode, 2012 ONCA 140, 109 O.R. (3d) 481 to exclude situations where an officer demands a detainee exit his vehicle with the express intention of conducting something akin to a "disguised sobriety test", such as occurred in R. v. Iannotta, [2009] O.J. No. 5181 (S.C.J.). Evidence of a "conscriptive motive" on the part of the officer, with regard to a specific direction or demand made at the roadside, will render substantive admission of the subsequent observations unfair.

[46] In the present case, Constable Shipp readily agreed in cross-examination that he had Davis exit his car so that he could observe his movements while he did so. This is a clear example of "conscriptive motive", as identified in Brode. The demand to have Davis remove his sunglasses was similarly coercive. I would exclude each of these observations from consideration at trial.

[47] What remains, essentially, is Davis' somewhat garbled speech, his drowsiness, the observations and opinions of the DRE officers, and the toxicology results. Much of this evidence points towards impairment, likely via some combination of depressants and stimulants, as disclosed in Davis' urinalysis results. However, balanced against this likelihood is evidence that is either neutral or inconsistent with the prosecution theory. While his speech was garbled, the officers never expressed an inability to understand Davis. His gait at the police station was largely without incident. My review of the videotape does not disclose any clear evidence of gross motor skill impairment. While I do not reject the opinion of Constable Green, who had specific training in drug recognition, and a better vantage point to observe more subtle indicia of impairment than I, it does not convince me beyond a reasonable doubt, in the circumstances of this particular case, that Davis' ability to operate a motor vehicle was impaired by a drug at the time he was found in care or control. I note many of the officers' observations could relate to mere drowsiness, a possibility I cannot definitively exclude on the basis of the trial record. As I noted earlier, Davis presented in court, on each of the three days of trial, as somewhat disheveled, jittery and sleepy-looking. That fact undermines the Crown's argument to a certain degree. So too does the absence of any significant observations of affected driving, or admissible physical indicia of impairment from the roadside. In attempting to answer Justice Cromwell's "basic question" from paragraph 38 of Villaroman, I conclude that the totality of the circumstantial evidence before me is capable of supporting inferences other than guilt. At bottom, I am pretty sure that Mr. Davis' ability to operate a motor vehicle was impaired by a drug, to the Stellato standard, when he was located by Constable Shipp in the parking lot. However, such a conclusion is not proof beyond a reasonable doubt. The presumption of innocence has not been rebutted by the prosecution.

IV. DISPOSITION

[48] The Crown has failed to prove its case. The defendant is found not guilty of the offence charged.

Released: March 6, 2018

Signed: Justice Scott Latimer

Footnotes

[1] The regulations do not include questioning: see Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196, s. 1.

[2] I have reviewed the video and listened carefully during the officers' testimony. While I have not exhaustively reviewed their evidence in this judgment, I have considered the totality of it during my assessment of whether the Crown has proven this charge beyond a reasonable doubt.

[3] I note that, having observed Mr. Davis for the better part of three days during trial, he consistently looked tired and disheveled.

[4] The video that displayed the walk-and-turn test has a camera angle that depicts the parties on a slight slant, which makes it difficult to observe how well, or poorly, a test subject is completing the test.

[5] R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont.C.A.), aff'd, [1994] 2 S.C.R. 478, 90 C.C.C. (3d) 160.