R. v. Dougherty

Citation: 2018 ONCJ 633

Court: Ontario Court of Justice

Date: September 17, 2018

Court File No.: Sudbury 17-2410

Parties

Crown: Her Majesty the Queen

Accused: Steven Dougherty

Before: Justice V. Christie

Counsel:

• D. Rodgers, for the Crown
• P. B. Keaney, for the Defendant

Heard: July 19 and 23, August 16, 2018

Reasons for Judgment Released: September 17, 2018

Charges

Steven Dougherty is charged with the following five offences:

1. On or about the 29th day of June, 2017 at the City of Greater Sudbury, while his ability to operate a motor vehicle was impaired by alcohol or drug, had the care or control of a motor vehicle, contrary to section 253(1)(a) of the Criminal Code of Canada.

2. On or about the 29th day of June, 2017 at the City of Greater Sudbury, had the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, contrary to section 253(1)(b) of the Criminal Code of Canada.

3. On or about the 29th day of June, 2017 at the City of Greater Sudbury, unlawfully did operate a motor vehicle on a street in a manner that was dangerous to the public, contrary to section 249(1)(a) of the Criminal Code of Canada.

4. On or about the 29th day of June, 2017 at the City of Greater Sudbury, did while bound by a probation order made by Justice Keast on the 7th day of June 2016, without reasonable excuse, fail to comply with such order, to wit: keep the peace and be of good behaviour, contrary to section 733.1(1) of the Criminal Code of Canada.

5. On or about the 29th day of June, 2017 at the City of Greater Sudbury, did while bound by a probation order made by Justice Keast on the 7th day of June 2016, without reasonable excuse, fail to comply with such order, to wit: do not be outside your residence with alcohol in your body, contrary to section 733.1(1) of the Criminal Code of Canada.

Procedural History

The Crown elected to proceed summarily. Prior to the evidence commencing, the court was advised that counts 4 and 5, the two breach of probation charges, would be resolved at the end of the trial. The matter was conducted as a blended voir dire and trial.

Facts

Martin Riopel

On Thursday, June 29, 2017, Martin Riopel was traveling toward Sudbury from Coniston on Kingsway. The weather was sunny, though he believed it might have rained earlier in the day. He was driving his younger brother's Chevy Impala and intended to turn left onto 3rd Avenue at the intersection of Kingsway and 3rd Avenue.

Mr. Riopel was in the left turn lane with the left signal red, slowing to stop at the light. The light was green for through traffic east and west on Kingsway. He then noticed a red Ford truck traveling in the direction of Coniston from Sudbury, which was "going kinda crooked across the lanes." The truck was traveling at more than 100 km/h. The truck hit the centre median and was coming right toward him. In an attempt to avoid the collision, Mr. Riopel let go of the brake and tried to move to the right. The truck's two left tires went up onto the centre median with such force that the truck bounced, hit and took out the light post. This caused the truck to turn facing McDowell equipment. The truck then came at Mr. Riopel sideways, and the side of the truck hit his front left bumper.

The impact caused Mr. Riopel's car to spin, go over the curb, and come to rest facing east bound in the westbound lane. Mr. Riopel estimated the time to be around 7:45 p.m., though he acknowledged he did not look at his watch after the accident.

Mr. Riopel's left knee was purple from hitting the door handle. The air bag hit him in the face, causing a sore jaw for a couple of days. Afterward, he had back and neck pain for which he was receiving chiropractic, massage, and physiotherapy services. The Chevy Impala was deemed a "write-off" by the insurance company.

Shortly after exiting his vehicle, Mr. Riopel saw a person he believed to be the driver of the truck, walking to the McDowell equipment and sitting on the lawn. When asked to describe this person, he pointed out the defendant in the courtroom. He described this person as "lost, disoriented and drunk quite frankly." He noticed the person had urinated in his pants and was walking crooked.

Constable Stephane Brouillette

Constable Brouillette has been a police officer with the Greater Sudbury Police Service since May 2000. His involvement began at 8:07 p.m. on June 29, 2017, when he was dispatched to Kingsway and 3rd Avenue for a motor vehicle collision investigation. He arrived on scene at 8:13 p.m. The event was created at 7:44 p.m. (the time of the 911 call).

When he arrived, he observed two vehicles: a red 2008 Ford F-150 pick-up truck and a brown 2003 Chevy Impala. The scene was chaotic with fire and EMS personnel on scene, debris on the roadway, vehicles blocking lanes, and people on foot.

From a conversation with EMS personnel, Constable Brouillette formed the belief that Steven Dougherty was the driver of the red pick-up and that he may be impaired or had an odor of alcohol on his person.

Constable Brouillette spoke to Steven Dougherty, who was seated on a large landscaping stone. Mr. Dougherty confirmed he was the driver of the red pick-up truck and provided his name, date of birth, address in Coniston, and phone number.

Constable Brouillette observed that Mr. Dougherty's speech was extremely slurred, he was unsteady on his feet, and appeared to have soiled himself. He also noted an odor of alcoholic beverage emanating from Mr. Dougherty's breath (noted in the arrest report, though not in his memobook notes).

At 8:16:08 p.m., Constable Brouillette called dispatch requesting an approved screening device. At 8:24 p.m., he read Mr. Dougherty the roadside screening demand. Mr. Dougherty appeared to understand and responded "yeah."

The approved screening device arrived at 8:27:35 p.m. Constable Brouillette performed a self-test which resulted in a pass. Mr. Dougherty made a number of attempts to provide a sample, seemingly attempting to trick the machine or provide a sub-standard breath sample. He ultimately provided a suitable sample at 8:36 p.m. which registered a fail.

At 8:38 p.m., Constable Brouillette arrested Mr. Dougherty for "over 80." At 8:39 p.m., he read Mr. Dougherty his rights to counsel and caution. Mr. Dougherty did not indicate that he wished to speak to a lawyer.

Constable Brouillette placed Mr. Dougherty in the rear of the police cruiser for safety and privacy reasons. He performed a cursory pat-down search to ensure Mr. Dougherty had no weapons.

At 8:51 p.m., Constable Brouillette departed the scene with Mr. Dougherty and took him to the station where the breath technician and breath instrument were located.

At the station, Constable Brouillette made efforts to contact counsel. At 8:59 p.m., at Mr. Dougherty's request, he contacted Berk Keaney but there was no answer. Mr. Dougherty said he did not want a message left. At 9:04 p.m., he attempted to contact Michael Haraschuk but there was no answer. At 9:05 p.m., he attempted the office number for Mr. Haraschuk with no answer. At 9:11 p.m., Constable Brouillette called duty counsel and reached Jim Murphy. Mr. Dougherty spoke to Mr. Murphy, with the conversation concluding at 9:15 p.m.

At 9:19 p.m., Constable Brouillette read the breathalyzer demand. Mr. Dougherty appeared to understand and verbalized "yes."

At 9:20 p.m., Constable Brouillette and Mr. Dougherty entered the breath room. He introduced Mr. Dougherty to Constable Lanzo, the qualified breath technician, and provided his grounds for arrest.

Constable Andrew Lanzo

Constable Andrew Lanzo has been a qualified breath technician since January 26, 2006, and was qualified specifically on the Intoxilyzer 8000C on March 1, 2011. He had conducted in excess of one hundred breath tests.

The breathalyzer instrument was the Intoxilyzer 8000C. Constable Lanzo took steps to prepare the instrument, including taking it out of stand-by mode to perform a diagnostic test. This was completed at 8:54 p.m. He conducted three separate quality assurance checks with results within acceptable limits. He then demonstrated the test by doing a breath test on himself, registering a "0."

At 9:11 p.m., the instrument was ready.

Before administering the test, Constable Lanzo made observations of Mr. Dougherty. He noted that Mr. Dougherty was crying uncontrollably while in the booking room trying to contact his lawyer of choice. At 9:17 p.m., Constable Lanzo overheard Mr. Dougherty say "I pissed my f'ing pants when you pulled me over."

At 9:22 p.m., Constable Lanzo received Mr. Dougherty into his custody from Constable Brouillette. After receiving information that Mr. Dougherty was the operator of the motor vehicle, Constable Lanzo formed reasonable grounds to proceed with the breath test.

At 9:28 p.m., Constable Lanzo read the cautions and breath demand to Mr. Dougherty. Mr. Dougherty responded "yeah" to both questions.

Before administering the test, Constable Lanzo provided instructions and did a demonstration. Mr. Dougherty appeared to understand.

The first suitable sample was obtained at 9:40 p.m. and was 259 mg of alcohol in 100 ml of blood.

After the first sample, Constable Lanzo and Mr. Dougherty had a lengthy conversation. The instrument required a 17-minute wait between tests. Constable Lanzo testified that there were numerous peculiar comments and many things struck him as odd.

After 17 minutes elapsed, Constable Lanzo performed the second test. Mr. Dougherty had difficulty with the second test. Three attempts were made to provide the second suitable sample. Significant air was escaping out of the side of his mouth and Constable Lanzo coached Mr. Dougherty again on how to provide the sample effectively.

The second suitable sample was obtained at 10:06 p.m. and was 246 mg of alcohol in 100 ml of blood.

Breath Room Video

A breath room video was played and entered as Exhibit 12. Key observations from the video include:

• At 21:01:06, Constable Brouillette is overheard saying there is a list of lawyers available and encouraging Mr. Dougherty to choose one. Mr. Dougherty asks what he should tell them he is being charged with. Constable Brouillette responds that he should tell them he is under arrest for over 80 mg.

• At 21:10:09, an officer is overheard saying "take a look at the list again and see if there is any names that you recognize." Constable Brouillette was naming names from a list, alphabetically.

• At 21:11:45, an officer is overheard saying "We can't just call a lawyer, you have to pick somebody. Why don't you call Legal Aid." Constable Lanzo testified that he entered the booking room as the officers were experiencing difficulties about counsel of choice and suggested Legal Aid. Mr. Dougherty said "that's ok."

• At 21:14:57, Steven Dougherty walked by the open door of the breath room into another area, appearing to be when he began speaking to counsel.

• At 21:17:13, Steven Dougherty comes back into sight, outside the breath room.

• At 21:20:40, Constable Brouillette is overheard reading the breath demand.

• At 21:21:49, Constable Brouillette and Steven Dougherty enter the breath room. Constable Brouillette provided his grounds to Constable Lanzo, one of which was that he detected a strong odor of alcohol emanating from Mr. Dougherty's breath.

• At 21:29:40, Mr. Dougherty stated "Guy pulled out in front of me."

• At 21:30:02, Constable Lanzo made observations about Mr. Dougherty's appearance, noting he had urinated himself and had a contusion on his left forearm.

• At 21:32:10, Steven Dougherty said "I'm fucked" and was crying.

• At 21:33, Steven Dougherty said "Give me a chance on this. Can you just fuck up on this?"

• At 21:36:45, Steven Dougherty said "can you help me out."

• At 21:39:55, Steven Dougherty said "I'm fucked" just before providing his first breath sample. After providing the sample, he started crying and asked for "a break."

• At 21:41:15, Steven Dougherty explained that a car pulled out in front of him and that he hit the car.

• Constable Lanzo had a discussion with Mr. Dougherty about the color of his eyes, noting they were watery, bloodshot and red rimmed.

• At 21:48:40, Constable Lanzo asked Mr. Dougherty if he knew the date, to which Mr. Dougherty said "28, 27, 29."

• Constable Lanzo asked if he knew the time, to which Mr. Dougherty responded "1:00 in the morning." It was in fact 9:49 p.m.

• When asked if he was operating a motor vehicle tonight, Mr. Dougherty said "yes."

• When asked what he was driving, he said "my truck" and confirmed it was a red F150.

• When asked where he was going, he said he was driving home to Coniston, driving from the Clubhouse.

• Mr. Dougherty had no idea when he left the Clubhouse.

• When asked if he had been drinking alcohol, Mr. Dougherty initially replied "No." When questioned, he then said he had a couple of drinks and that he "drank too much." He stated he was drinking beer and whisky.

• When asked when he started drinking, he responded "5 p.m." When asked about the timing of his last drink, he said "not long before I got in shit."

• With respect to what his last drink was, he said it was whiskey and said it took two minutes to drink.

• Mr. Dougherty asked Constable Lanzo to give him a break.

• When asked if he was operating a motor vehicle at the time of the collision, he responded "obviously."

• When asked about the time of the collision, he responded that he did not know.

• When asked how long after the collision the first police officer arrived, Mr. Dougherty stated "20 minutes."

• When asked why he spoke to the officer at the side of the road, he stated because he "wanted someone to talk to." When asked whether he understood at the time that it was an impaired driving investigation, he said he had "no idea."

• Mr. Dougherty confirmed he had not been drinking since the collision.

• At 21:56:45, when asked how long he had been driving before the accident, Mr. Dougherty initially responded "I was not driving at all," then said "2 minutes."

• At 21:59:30, Mr. Dougherty requested his phone to arrange a ride with his father.

• Mr. Dougherty attempted to provide a second sample, which was initially unsuccessful. Constable Lanzo warned him about a refusal.

• At 22:06, the second sample was completed.

James Rajotte

On consent, the Crown filed an affidavit, toxicology letter of opinion, and statement of qualifications for James Rajotte, M.Sc., Forensic Scientist, Toxicology. The defence agreed to the filing of this evidence without the witness being called, however, the defence questioned the reliability and weight to be given to this report.

The toxicology letter of opinion stated that given the Intoxilyzer 8000C results of 259 and 246 milligrams of alcohol in 100 millilitres of blood obtained at approximately 9:40 p.m. and 10:06 p.m., respectively, and given that the incident occurred at or between approximately 7:35 p.m. and 8:24 p.m., the projected blood alcohol concentration (BAC) at or between approximately 7:35 p.m. and 8:24 p.m. is 240 to 290 milligrams of alcohol in 100 millilitres of blood (mg/100 mL).

This projected range is independent of gender, height, weight, and age, but is dependent on:

1. A rate of elimination of alcohol from the blood ranging from 10 to 20 mg/100 mL per hour.
2. Allowance for a plateau of up to two hours.
3. No consumption of large quantities of alcohol beverages within approximately 15 minutes prior to the incident.
4. No consumption of alcoholic beverages after the incident and before the breath tests.

The report further explained that in the opinion of Mr. Rajotte, impairment with respect to driving becomes significant at a BAC of 50 mg/100 mL and increases from then onward.

Sharon A. Burton

The defence filed the affidavit of Sharon A. Burton, a criminal litigation assistant with the law firm of Weaver, Simmons, counsel for Mr. Dougherty. The affidavit set out the following:

1. Ms. Burton has been employed at Weaver, Simmons for approximately 17 years.

2. During the course of her employment, the Greater Sudbury Police Service has always had Mr. Keaney's cell phone number (705) 688-8543. The voice mail asks the caller to leave a message and that Mr. Keaney will get back to the person.

3. Mr. Keaney's direct line is (705) 671-3296. There is a voice mail message that states "You have reached Berk Keaney. I am not available to take your call. If the matter is urgent or you wish to speak to reception, please press 0 at any time. Otherwise leave your name number and a brief message after the tone and I will get back to you as soon as possible. Thank you."

4. If a person were to press "0" during Mr. Keaney's voice message, they would hear the following message: "Thank you for calling Weaver, Simmons. Our office is presently closed. Our office hours are from 8:00 a.m. to 5:00 p.m., Monday to Friday. If you know the extension of the person you wish to leave a message for, please enter it now. For our staff directory, press 9."

5. Ms. Burton was unable to provide any evidence as to the specific appearance of the paper with phone numbers for local defence lawyers in the booking area of the Greater Sudbury Police Service detachment.

Analysis

Does an Omission from a Police Officer's Notes Lead to the Rejection of His or Her Evidence?

The defence submitted that the lack of detail in Constable Brouillette's notes should cause the court concern about his evidence.

Constable Brouillette testified that he understood the importance of making complete, detailed and accurate notes. He understood that it is particularly important in drinking and driving investigations to make notes with respect to observations of the individual under investigation.

In R. v. Wright, the Court made it clear that the notes taken by an officer are vitally important to the case. The failure to note indicia of impairment and to later mention them at trial as independent recollection is a serious omission. An officer's notebook is an area of potential vulnerability. The preparation of accurate, reliable and comprehensive notes made contemporaneously or shortly after an event has been investigated is the responsibility of a trained officer.

However, other cases have said that deficiencies in the officer's notes should not result in an automatic rejection of the officer's evidence.

In R. v. Brown, Justice Durno addressed this issue as follows:

While some cases appear to hold that the failure to record events or statements in the officer's notebook is fatal to the evidence being found credible and reliable, being acted upon, I am not aware of any binding appellate authority to that effect. The absence of notebook entries should not result in the automatic rejection of the evidence. A blanket, "if it is not in the memo book" it is either inadmissible or not worthy of belief goes too far. No doubt, it is a significant factor to be assessed on a case-by-case basis by the trial judge in light of the explanation for the omission, the significance of the omission and other evidence.

It is the view of this court that omissions in officer's notes do not necessarily result in the rejection of the officer's evidence. As with any other witness, the court must consider and weigh all of the evidence and all of the circumstances. A court may accept all, some or none of what a witness has to say. A police officer is a witness to be considered in the same way as any other witness. Notes taken by the officer are merely testimonial aids. A material omission from the officer's notes may lead the court to question whether the officer actually made the observation which is absent in the notes, actually had the conversation which is absent from the notes, or completed the task that is absent from the notes. However, the court must also consider the circumstances under which the officer was acting at the time and whether the omission from the notes makes sense.

Are the Roadside Statements of Mr. Dougherty Admissible?

The defence submitted that the position of the Crown, who seeks to introduce the roadside statements of Mr. Dougherty for the proof of the truth of their contents, flies directly in the face of multiple court of appeal decisions having to do with roadside statements.

In R. v. Milne, the Court of Appeal held that the results of roadside co-ordination tests are not meant to provide police with a means of gathering evidence to incriminate and convict the motorist of impaired driving. The use of the roadside co-ordination tests is limited to enabling the officer to make a further demand if the results of the tests provide reasonable and probable grounds.

Similarly, in R. v. Coutts, the Court of Appeal held that the Crown may not use evidence that the accused failed the roadside screening test to discredit evidence capable of constituting "evidence to the contrary" adduced on a charge of "over 80."

In R. v. Rivera, the Court of Appeal dealt specifically with the admissibility of roadside statements for incrimination or impeachment purposes where the offence charged was failing to comply with a breath demand.

In R. v. Guenter, the Court of Appeal dealt specifically with an argument relating to the admissibility of statements made by an accused person at the scene of an accident. The court held that where the appellant did not apply at trial under ss. 7, 9 or 10 of the Charter to exclude any of his collision scene statements, and did not place before the court any evidence that the reason he told the officer he was the driver was because of an honest and reasonably held belief that he was required by law to report the accident to the officer, the ground of appeal must be dismissed.

The Crown relied on the recent case of R. v. Roberts to argue for the admissibility of the roadside statements. In Roberts, a motor vehicle collision had occurred. The attending officer detected an odour of alcohol and asked the accused to sit in the police vehicle. She admitted to having consumed two pints of beer and the officer noted that the accused's speech was slow, deliberate and slurred. The court held that the trial judge did not believe the accused's claim that she spoke because she believed she was statutorily compelled to do so, and the trial judge was entitled to come to that conclusion.

It is the view of this court that the roadside statements of Mr. Dougherty are admissible both for the officers' grounds and for the offences charged. This conclusion has been reached for the following reasons:

(1) The exchange that took place between Constable Brouillette and Steven Dougherty took place in the earliest stages of Constable Brouillette's efforts to investigate the accident. Constable Brouillette testified that he did not indicate to Mr. Dougherty whether he was investigating a Highway Traffic Act matter or a drinking and driving offence, as it was too early at that point. This evidence is accepted.

(2) Although Mr. Dougherty's statements were made in response to questions from Constable Brouillette, those questions were not posed to Mr. Dougherty as part of any compelled direct participation in roadside testing. The questions were posed at the outset of an investigation into a recent accident by the first officer on scene.

(3) There is nothing in the evidence to suggest that Steven Dougherty spoke to Constable Brouillette because of any subjective belief that he was compelled to do so by the terms of the Highway Traffic Act.

(4) Mr. Dougherty was not detained at the time Constable Brouillette was speaking to him at the roadside. Not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention.

(5) Even though Mr. Dougherty was ultimately detained by Constable Brouillette, this does not mean that Mr. Dougherty was detained from the beginning of the interaction.

The Milne/Orbanski line of cases considered the use that can be made at trial of evidence obtained through roadside sobriety tests, such as physical co-ordination tests and asking questions of detained motorists about their earlier alcohol consumption. In each of the cases, a motorist either had been pulled over by the police, or required to participate in a R.I.D.E. program. That is not the case for Mr. Dougherty.

The statements made by Mr. Dougherty at the roadside are admissible both for the officers' grounds and for the offences charged, in other words for the proof of the truth of their contents.

Did Constable Brouillette Have the Requisite Reasonable Suspicion to Make the Demand for a Sample of Breath into the Approved Screening Device?

The defence submitted that Constable Brouillette did not have the requisite reasonable suspicion to make a demand for a sample of breath into the approved screening device. The defence submitted that "clearly any indicia observed by Constable Brouillette absent odour of alcohol or admission to drinking would be insufficient to form any reasonable probable grounds."

There is no question that the Crown has the burden of proving that the officer had a subjectively and objectively reasonable suspicion in order to make the approved screening device demand. The case law has established that this is a low threshold to meet. The officer must only suspect that the accused has operated or had care or control of a motor vehicle in the previous three hours, and has alcohol in his body.

Reasonable suspicion does not require that the officer believe the person committed any criminal offence. As stated by Durno J. in R. v. Singh:

While all of the facts known to the officer have to be considered, the constable is not required to conduct a trial of the indicia and determine if he or she has reasonable and probable grounds to believe an offence has been committed or whether he or she is satisfied beyond a reasonable doubt that the driver is impaired or has alcohol in their body.

Odour of alcohol is sufficient if it leads to a suspicion that there is alcohol in the body. However, a reasonable suspicion may be formed in the absence of an odour of alcohol. In R. v. Hyrniewicz, the court stated that the respondent did not seek to support the trial judge's finding that it is necessary to smell alcohol to form a reasonable suspicion justifying a screening test, and agreed that this was an error. There was ample evidence to support the finding that the officer suspected that the respondent had alcohol in his body.

It is the view of this court that there were several indicia of impairment that presented themselves to Constable Brouillette in this case. This court accepts the following facts:

1. Constable Brouillette was able to determine that the event was created at 7:44 p.m. It was his belief that the incident had occurred well within 3 hours.

2. When Constable Brouillette arrived on scene at 8:13 p.m., he observed two heavily damaged motor vehicles and debris on the roadway.

3. Constable Brouillette spoke to EMS personnel on the scene. From that conversation, Constable Brouillette formed the belief that Mr. Dougherty was the driver of the red pick-up truck involved in the collision and that he may be impaired, or at least that he had an odor of alcohol on his person. This hearsay statement is solely admissible for Constable Brouillette's grounds. It is not admitted for the truth of its content. While Constable Brouillette's notes were silent on the issue of who brought this to his attention, he believed it was EMS personnel.

4. Constable Brouillette stated that this led him to believe that alcohol may be a factor, that there was a chance it was drinking and driving but that he was prepared to make his own observations and come to his own conclusion.

5. Constable Brouillette found the male that he was directed to, Mr. Dougherty, seated on a landscaping stone, which was no more than 50 metres from the red pick-up truck.

6. Upon speaking to the male, he identified himself as Steven Dougherty and as the driver of the red pick-up truck. This statement is admissible as discussed above.

7. Mr. Dougherty's speech was extremely slurred.

8. Mr. Dougherty was unsteady on his feet.

9. Mr. Dougherty had appeared to have urinated in his pants.

10. Mr. Dougherty had an odour of alcohol emanating from his breath. It has been submitted by the defence that Constable Brouillette did not make note in his police issued notebook of an odour of alcohol emanating from Mr. Dougherty's breath. This is also absent from his will state. However, the arrest report of Constable Brouillette does indicate the odour of alcohol emanating from Mr. Dougherty's breath. The arrest report was dictated by Constable Brouillette.

It is the view of this court that Constable Brouillette had ample reasonable suspicion, both subjectively and objectively to make the approved screening device demand. Even if the odour of alcohol were absent, the remaining indicia are more than enough to ground reasonable suspicion. The smell of alcohol is not required. Although the officer's notes are silent on the fact that there was an odor of alcohol emanating from Mr. Dougherty's breath, this court accepts that the officer did smell the odor of alcohol as indicated. This observation did find its way into the arrest report which was dictated by Constable Brouillette, and reviewed by him days after the events. Constable Brouillette was attending to a "chaotic" motor vehicle collision scene. There were still live lanes of traffic, disabled vehicles in the roadway, debris on the roadway, and emergency personnel on scene. Constable Brouillette was also concerned about "rubberneckers" which might lead to a further collision. There were also pedestrians in the area. Constable Brouillette was attempting to ensure that there were no other people involved who may have been injured. It is the view of this court that the omission of the odor of alcohol from Constable Brouillette's notes is understandable in the circumstances.

Was the Approved Screening Device Demand Made Forthwith by Constable Brouillette?

The defence has submitted that the approved screening device demand was not made forthwith which leads to a violation of the relevant section of the Criminal Code as well as sections 8, 9 and 10(b) of the Charter.

With respect to the Criminal Code, the "forthwith" requirement is found in section 254(2) which states:

If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

The Supreme Court of Canada considered the "forthwith" requirement in R. v. Woods. In that case, police officers stopped a vehicle driven by Mr. Woods. They detected a strong odor of alcohol and made an approved screening device demand. Mr. Woods refused and was arrested for this offence. At the station, approximately an hour after the arrest and after speaking with counsel, the accused indicated that he wished to provide a breath sample. After numerous unsuccessful attempts, and a warning about a refusal, Mr. Woods then provided a proper sample. He was charged with over 80 and convicted at trial. The summary conviction appeal court set aside the conviction and substituted an acquittal. The Court of Appeal affirmed the acquittal. The Crown further appealed to the Supreme Court of Canada. The Court held:

"Forthwith" means "immediately" or "without delay." Without doing violence to the meaning of the word, "forthwith" cannot be stretched to bring within s. 254(2) of the Criminal Code the long-delayed "compliance" that occurred in this case. This semantic obstacle to the Crown's position, like the factual one, is in my view insurmountable.

The constitutional obstacle is no easier for the Crown to overcome. Section 254(2) depends for its constitutional validity on its implicit and explicit requirements of immediacy. This immediacy requirement is implicit as regards the police demand for a breath sample, and explicit as to the mandatory response: the driver must provide a breath sample "forthwith".

The "forthwith" requirement of s. 254(2) of the Criminal Code is inextricably linked to its constitutional integrity. It addresses the issues of unreasonable search and seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding ss. 8, 9 and 10 of the Charter. In interpreting the "forthwith" requirement, this Court must bear in mind not only Parliament's choice of language, but also Parliament's intention to strike a balance in the Criminal Code between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

It is true, as I mentioned earlier, that "forthwith", in the context of s. 254(2) of the Criminal Code, may in unusual circumstances be given a more flexible interpretation than its ordinary meaning strictly suggests. For example, a brief and unavoidable delay on 15 minutes can thus be justified when this is in accordance with the exigencies of the use of the equipment.

The "forthwith" requirement in s. 254(2) appears to me, however, to connote a prompt demand by the peace officer, and an immediate response by the person to whom that demand is addressed. To accept as compliance "forthwith" the furnishing of a breath sample more than an hour after being arrested for having failed to comply is in my view a semantic stretch beyond literal bounds and constitutional limits.

The consideration of the "forthwith" requirement under s. 254(2) was further discussed in R. v. Quansah as follows:

In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.

Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).

Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.

Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met.

The Crown relies on R. v. Corbin and R. v. MacMillan as authority for the proposition that the "forthwith" component, in unusual circumstances, is to be given a more flexible interpretation. In Corbin, the court stated:

The word "unusual" does not mean strange or statistically rare. In the context of the jurisprudence it simply means there are circumstances that can be characterized as exceptional or out of the ordinary.

In MacMillan, the court held that greater flexibility in the forthwith requirement will be tolerated where the suspect has not been detained between the time the officer forms the grounds and when the officer makes the demand.

The defence submitted that the evidence in the case at bar does not provide the evidentiary basis for a finding that Constable Brouillette could not have made the approved screening demand "forthwith".

The timeline of uncontroverted facts in this case is as follows:

1. Constable Brouillette arrived on scene at 8:13 p.m.
2. Constable Brouillette made a call to dispatch requesting an approved screening device at 8:16:08 p.m.
3. Constable Brouilette made the approved screening device demand at 8:24 p.m.
4. The device arrived at 8:27:35 p.m.
5. Constable Brouillette performed a self-test.
6. Mr. Dougherty performed the test at 8:36 p.m.

The things that are unclear in this case are:

1. When did Constable Brouillette form reasonable suspicion?
2. When was Steven Dougherty detained?

Constable Brouillette did not have an approved screening device with him that day. He testified, in examination-in-chief, that when he formed reasonable suspicion, he made the request of a colleague to bring an approved screening device to the scene. This request was made prior to reading the demand. Further, in examination-in-chief, Constable Brouillette testified that he formulated his suspicion shortly before 8:24 p.m., which was the time he read the roadside screening demand. However, in cross-examination, Constable Brouillette, agreed, after he heard the police communication radio call, that he would not have requested the screening device until he formed reasonable suspicion and therefore accepted that he formed reasonable suspicion prior to 8:16:08 p.m.

Further, in re-examination, Constable Brouillette stated that when he called dispatch for the approved screening device, he had a feeling that alcohol was involved, however, he wanted to make his own observations before he decided that he had reasonable suspicion and before he made the demand.

With respect to detention, Constable Brouillette testified that once he had decided that he was going to have Mr. Dougherty provide a sample of his breath into the approved screening device, Mr. Dougherty was not free to leave and he was in fact detained.

Constable Brouillette changed his evidence on this point a number of times, however, it is the conclusion of this court that Constable Brouillette had formed reasonable suspicion by the time that he called for the device at 8:16:08 p.m.

As to when Mr. Dougherty was detained, based on the evidence of Constable Brouillette, the conclusion of this court is that he was detained when the officer formed reasonable suspicion and called for the device – 8:16:08 p.m. It is not clear on the evidence whether this detention would have been known to Mr. Dougherty between 8:16:08 and 8:24 p.m. However, it is the view of this court that Mr. Dougherty would not have been free to leave during this time. According to the will state that was put to Constable Brouillette in cross-examination, which he accepted, it would appear that at 8:24 p.m. Constable Brouillete requested that Mr. Dougherty attend at the cruiser. This is also the time at which the roadside screening demand was read.

The question is then whether this fact scenario falls within the meaning of "forthwith". In other words, this court must decide whether or not this amounts to more time than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2), taking into account all of the circumstances, such as articulated and legitimate safety concerns.

The delay in making the demand is approximately 8 minutes. In the circumstances of this chaotic accident scene, it is the view of this court that this amount of time was reasonably necessary. This was not simply a situation where the police had pulled over a vehicle. Constable Brouillette was attempting to ensure the safety of Steven Dougherty and of others at the scene. As previously stated, there were two disabled and damaged vehicles on the roadway, in an area where the speed limit is 80 km/h. There were still live lanes of traffic going by which caused Constable Brouillette's concern for "rubberneckers" causing another accident. There were 15 to 20 pedestrians in the area. Constable Brouillette also seemed to be sensitive to Mr. Dougherty's privacy.

This court concludes that the demand was made "forthwith", in the sense that there was no more time than was reasonably necessary to enable the officer to discharge his duties.

Therefore, there is no violation of s. 254(2) of the Criminal Code and no violation of Mr. Dougherty's Charter rights. There will be no exclusion of evidence on this basis.

Was There a Breach of s. 10(b) of the Charter at the Roadside?

Even though this court has concluded that the demand was made "forthwith", there was still a delay in getting the approved screening device to the scene and having Mr. Dougherty provide a breath sample into that device, which must be considered.

In R. v. George, the Court of Appeal for Ontario was considering circumstances in which an approved screening device was not readily available – in fact it was 18 minutes between the demand and the taking of the roadside sample. The Court stated in part:

Before turning to Cote and Latour, it is useful to recall the parameters established by the decisions of the Supreme Court of Canada in this matter. To begin, it is accepted that where a roadside breath demand is made, the driver is detained and his or her s. 10 rights under the Charter are prima facie triggered. However, if the demand is validly made pursuant to s. 254(2) of the Criminal Code in that it is made "forthwith", the police officer need not advise the detainee of his or her s. 10(b) rights because, although s. 245(2) violates s. 10(b), it is a reasonable limit prescribed by law and justified under section 1 of the Charter.

It is also accepted that if a roadside demand is made and a sample is not provided "forthwith" because the approved screening device is not readily available, the demand is not valid and does not justify a failure to provide s. 10(b) rights.

Based on Grant, it is understood that to be "forthwith", the demand must be that the detainee provide a sample after "a brief period of detention", if not "immediately".

In accordance with Cote, the ready availability of a telephone is a relevant factor for the court to consider in determining whether a detainee had a reasonable opportunity to consult with counsel during the period of time between the issuance of the demand and the time at which the demand could actually be carried out.

A conclusion that the demand was not made within s. 254(2) is also consonant with the Supreme Court's admonition in Grant that a demand that a detainee provide a sample "forthwith" must be a demand that the detainee provide a sample after "a brief period of detention", if not "immediately". The demand in the instant case was not to provide a breath sample "forthwith" but to provide a sample when the required apparatus arrived, which was some time later.

In the instant case, the officer was aware that there would likely be a delay of fifteen to twenty minutes before the screening device arrived. In the face of that information, it was incumbent upon the officer to take reasonable steps to facilitate the respondent detainee's right to consult counsel. Such steps would involve asking the detainee whether he had a cellular telephone. In this case, the evidence is that the respondent would have used his cellular telephone and called his lawyer.

Where an officer is in a position to require that a breath sample be provided by the detainee before the detainee has any realistic opportunity to consult counsel, the detainee does not have the right to delay the production of the breath sample in order to consult with counsel by virtue of the ready availability of a telephone. However, where an officer is not in a position to require that a breath sample be provided immediately after a demand for such a sample, the court, in determining whether the detainee had a realistic opportunity to consult counsel during the period of delay, must consider the ready availability of a telephone as a relevant factor in making that determination.

In R. v. Murphy, Howden J. heard an appeal from Mr. Murphy's conviction for driving with a blood alcohol level over 80 mg in 100 ml of blood. Howden J. found that the trial judge erred in failing to consider the relevant factor of Mr. Murphy's ability to consult with counsel via his cell phone while waiting for the arrival of the screening device. In Murphy, there was evidence that a cell phone was present on the accused's person, the officer failed to inquire, and the accused would have used it had he been given the opportunity.

The question is whether there was a realistic opportunity to contact, seek and receive legal advice from counsel.

This Court was also referred to the case of R. v. Rienguette, in which the Court of Appeal upheld the decision of Justice Gordon. In that case, Justice Gordon was also dealing with a situation where there was a delay between the roadside demand and the actual providing of the roadside sample. The delay was approximately 13 minutes. The court identified the issues as being whether or not the officer could realistically have fulfilled the obligation to implement the accused's section 10(b) Charter rights. The Court stated in part:

That determination would require consideration of the following factors:

1. The Officer's expectations concerning the length of the delay;
2. The actual length of the delay;
3. The availability of a telephone;
4. The length of time required to consult with counsel;
5. What, if anything, was happening during the delay.

In the case of Rienguette, the Court found no breach of s. 10(b).

As stated above, this court has determined that the demand was made "forthwith" in all of the circumstances. However, there was some delay in this case between the demand being made and the device being administered – a delay of 12 minutes. The demand was made at 8:24 p.m. and the approved screening device was administered at 8:36 p.m.

The question is whether, in all of the circumstances, there was a realistic opportunity for the accused to contact, seek and receive advice from counsel at the roadside.

Constable Brouilette admitted to defence counsel in cross-examination that once he decided that Mr. Dougherty was not free to leave, he should have read him rights to counsel, however, this did not occur until after the fail result on the approved screening device. He stated that this was an oversight on his part and that he should have read rights to counsel when he decided that he was going to read the roadside screening device demand. He further agreed that he did not inquire as to whether Mr. Dougherty had a cell phone, however, he did not find a cell phone when he searched him. As to the vehicle he believed Mr. Dougherty was driving, he did not make any observations inside the vehicle. In re-examination, Constable Brouillette stated that he was not aware of any cell phone Mr. Dougherty may have had. When asked how he would have made a call to counsel at that point, he stated with his own cell phone. However, he testified that he would not have felt entirely comfortable with this. He also stated that he did not carry a lawyer list with him but he could have used his phone to google Sudbury lawyers, but that would probably be a limited list. Constable Brouillette also added that if the device arrived while the call to counsel was in progress, there would have been a delay in administering the device.

It is the view of this court that there was not a realistic opportunity for the accused to contact, seek and receive advice from counsel at the roadside. The totality of the evidence, including, but not limited to, the following facts are relevant to this conclusion:

(1) Mr. Dougherty was requested to attend at the police cruiser at 8:24 p.m.

(2) There was less than a four-minute delay between when the approved screening device demand was made (8:24 p.m.) and the device arrived on scene (8:27:35 p.m.)

(3) After the device arrived, Constable Brouillette ensured that the device was working properly as he was required to do. He also performed a self-test and provided instructions to Mr. Dougherty as to how to use the device.

(4) Mr. Dougherty made a number of attempts to provide a sample, however he seemed to be attempting to trick the machine or provide a sub-standard breath sample.

(5) There is no evidence that Mr. Dougherty had a cell phone with him. In fact, the evidence suggests that he did not have a cell phone. No cell phone was found during the search of his person. There was no evidence that a cell phone was located in his property at the station. Constable Lanzo stated on the breath video, "your phone is out there" which appeared that he was referring to the booking area. However, Constable Lanzo testified that he did not recall whether Mr. Dougherty's phone was at the booking desk or not. Constable Lanzo testified that the property sheet could confirm this, but no property sheet was provided to the court.

(6) Constable Brouillette had his own personal cell phone, but he was under no obligation to permit Mr. Dougherty to use his personal cell phone.

(7) Constable Brouillette did not have a list of lawyers or lawyers' phone numbers with him and would have only had access to this through the internet, which would have provided limited information.

(8) There is no evidence at this trial that Mr. Dougherty would have used his cell phone to call a lawyer if permitted. In fact, Mr. Dougherty initially declined his right to speak to a lawyer after being arrested.

It is the view of this court that there was no breach of s. 10(b) Charter rights at the roadside. There will be no exclusion of evidence on this basis.

Was Having Mr. Dougherty Attend at the Police Cruiser for the Administering of the ASD and Subjected to a Pat-Down Search Contrary to Section 9 and 8 of the Charter?

The defence further asserted that Mr. Dougherty was arbitrarily detained when he was placed in the rear of the police car to provide a sample of his breath into the approved screening device.

The defence further asserted that the pat-down search in this case amounted to a violation of s. 8 as the search was not reasonably necessary in light of the totality of the circumstances and cannot be justified on the basis of a vague or non-existent concern for safety or premised on hunches or intuition.

The test is whether the officer's request was reasonably necessary. In R. v. Aucoin, the court held:

The problem in this case arises from the shift in the nature and extent of the appellant's detention - and the asserted need to do a pat-down search as a prelude to it - that flowed from Constable Burke's decision to secure the appellant in the rear of his cruiser while he wrote up the ticket for the motor vehicle infractions. That decision carried with it increased restrictions on the appellant's liberty interests, and the added feature of an intrusion into his privacy interests. Those factors, in my view, altered the nature and extent of the appellant's detention in a fairly dramatic way - especially when one considers that the infractions for which he was being detained consisted of two relatively minor motor vehicle infractions.

To be clear, I do not see this case as turning on whether Constable Burke had the authority to detain the appellant in the rear of his police cruiser, having lawfully stopped him for a regulatory infraction. Rather, the question is whether he was justified in exercising it as he did in the circumstances of this case.

The existence of a general common law power to detain where it is reasonably necessary in the totality of the circumstances was settled in R. v. Clayton. That case moved our jurisprudence from debating the existence of such a power to considering whether its exercise was reasonably necessary in the circumstances of a particular case. The determination will focus on the nature of the situation, including the seriousness of the offence, as well as on the information known to the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope. This means balancing the seriousness of the risk to public or individual safety with the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk.

Accepting, as the trial judge did, that Constable Burke was concerned about the appellant walking away, I am nonetheless of the view that in the context of this case, in order to justify securing the appellant in the back seat - knowing that this would also entail a pat-down search - detaining the appellant in that manner had to be reasonably necessary. In other words, the question to be asked is whether there were other reasonable means by which Constable Burke could have addressed his concern about the appellant disappearing into the crowd, short of doing what he did. If there were other reasonable means to ensure the appellant would not flee the scene, then detaining him in the police cruiser could not be said to be reasonably necessary and would thus have constituted an unlawful detention within the meaning of s. 9 of the Charter.

Without wishing to second-guess the actions of the police and recognizing, as I do, that the police are often required to make split-second decisions in fluid and potentially dangerous situations, I am nonetheless of the view that Constable Burke's actions, though carried out in good faith, were not reasonably necessary.

In R. v. McGuffie, the Ontario Court of Appeal considered s. 8, 9 and 10(b) rights in the context of an accused being handcuffed, searched, and placed in the back of a cruiser while police conducted a 30 minute investigation, without having arrested him or provided rights to counsel. The Court determined that the accused's right to be free from arbitrary detention was infringed by Constable Greenwood when he confined Mr. McGuffie in the back of the cruiser. The Court stated:

The duration and nature of a detention justified as an investigative detention must be tailored to the investigative purpose of the detention and the circumstances in which the detention occurs. A brief detention on the street to question an individual implicated in a criminal investigation involving ongoing events may be justifiable under the Mann criteria, but under those same criteria imprisonment in a police cruiser while handcuffed for some indefinite period while an officer carries out other aspects of a criminal investigation could not be justified. The police cannot use investigative detention as an excuse for holding suspects while the police search for evidence that might justify the arrest of the suspect. Nor does investigative detention mean that the police can detain suspects indefinitely while they carry out their investigation.

Further it was held that the accused's rights under s. 10(b) were also breached as no rights to counsel were provided during this time. Further, there was a breach of s. 8, in that the detention of the accused in the back of the cruiser was unlawful and on the reasoning in Aucoin could not therefore provide a basis for the warrantless search of the accused during the pat-down search. The court held that the evidence, in that case drugs, should have been excluded and entered acquittals.

In the case of R. v. Azarnush, the accused was placed in the back seat of the cruiser, the back doors were closed and locked while the officer interrogated and admonished the accused for 15 minutes. Justice Green held:

Detention, then, must be viewed as a dynamic rather than static state in which the quality, length and vagaries of the event are subject to constant constitutional scrutiny. An "over-holding", as it is sometimes called, is a relatively common illustration of this principle, as obtains in circumstances where an initially lawful detention may be found to transgress s. 9 due to its unjustified duration.

Whatever his initial range of charging options and suspicions, conducting a locked-box alcohol detection experiment was not the reason Stangeways closed and locked the cruiser door on the defendant. This claim, in my assessment, is an after-the-fact rationalization for Strangeways' excessive zeal. His manifest purpose, I find, was to chastise the defendant – a purpose rooted in caprice and the officer's personal and idiosyncratic approach to traffic enforcement rather than any lawful authority with which he was vested. In short, Strangeways' grounds for confining the defendant as he did rendered the detention patently arbitrary.

Short of physical confinement, there were ample "other reasonable means" by which Sgt. Strangeways could have completed his investigation of the defendant's offensive driving behaviour or, to the extent that the consumption of alcohol was a factor, determined whether the defendant driver had alcohol in his body. Strangeways ventured none of these less intrusive measures. He instead immediately opted to effectively cage the defendant in the rear of his cruiser. However, the violation of s. 9 is here not merely founded on an officer's failure to employ a minimalist approach to detention. The defendant's physical confinement in the police vehicle was not grounded in any objectively reasonable concerns. Its purpose was capricious and irrelevant to any legally countenanced justification – the very definition of arbitrary.

The evidence in this case was excluded.

In R. v. Cole, the accused was likely subjected to a pat down search and was secured in the back of the cruiser for the approved screening device to be administered. Justice Schreck held:

Cst. Caplan secured Mr. Cole in the back of his cruiser prior to administering the ASD. Mr. Cole submits that he had no justification for doing so and that this violated his s. 9 Charter rights.

Crown counsel concedes this breach as well. Again, he was correct to do so. A detention of this nature is justified only when reasonably necessary, as was made clear in R. v. Aucoin, a case involving a similar decision to secure an individual in the back of a police car.

Ultimately, Justice Schreck excluded the evidence in this case.

In the case of R. v. Anand, the accused was subjected to a pat down search and was locked in the back of the cruiser. Justice Mackay held that:

Officer Sklery could have easily had Mr. Anand attend at his passenger side door or the back of her cruiser to perform the roadside test. Placing Mr. Anand in the back of her police car with the door locked was a breach of his s. 9 Charter right.

Having balanced the relevant factors and bearing in mind all the circumstances of this case, I am not persuaded that the evidence should be excluded. While the conduct of the police resulted in both s. 9 and s. 8 Charter breaches, those breaches had a limited impact on Mr. Anand's Charter-protected interests and there is a strong societal interest in a trial on the merits. I find that the admission of the evidence would not affect the preservation of the reputation of the administration of justice.

In the case of R. v. Williams, during the roadside screening device test, Mr. Williams was locked in the rear of the cruiser, and Constable Halfyard sat in the front seat with a partition between the front and rear. The screening device was given through the partition. Following a call to dispatch to get a tow truck and another officer to assist with the seizure of the vehicle, Mr. Williams was removed from the rear of the cruiser, handcuffed, and patted down for officer safety, before being returned to the rear of the police vehicle. The officer testified that given all of the circumstances, he felt that providing the screening device in the rear of the cruiser was the safest location for himself and his ability to control everything. Justice Freeman concluded:

There must be coherent and tangible reasons in this case to rely on officer safety as a reason to justify the placement of Mr. Williams in the rear of the locked cruiser. The reasons provided by Constable Halfyard – namely, the presence of traffic, the time of night, lighting conditions, the fact that it was an alcohol-related investigation, and the presence of the passenger in Mr. Williams' motor vehicle – are all generic concerns that would be present in many drinking and driving investigations. There was nothing specific to this investigation that would raise concerns for officer safety, such that would justify locking Mr. Williams up to conduct the ASD test.

The balance of the factors relied upon were for the convenience of the officer, namely, warmth, and the ease of making notes during an investigation. Mr. Williams was not asked whether he would be more comfortable in the rear of the police vehicle. I conclude that there factors were for the comfort of Constable Halfyard, and do not justify the placement of Mr. Williams in the rear of the police vehicle.

The Court found that these circumstances amounted to a s. 9 violation, however, indicated that it would not result in exclusion pursuant to s. 24(2). However, the court then went on to consider s. 10(b) and excluded the evidence on that basis.

In the case at bar, the following facts are of note:

1. Mr. Dougherty was requested to attend at the police cruiser at 8:24 p.m.

2. Before Mr. Dougherty was placed in the rear of the police car, he was given a cursory search or a "quick field search" to ensure that he had no weapons. This search was on the outside of his clothing.

3. The search of Mr. Dougherty was nothing more than a pat-down search, which Constable Brouillette always does to search for methods of escape or injury, to ensure officer safety, as well as the detainee's safety.

4. Nothing of note was located during the search.

5. Mr. Dougherty was not cuffed prior to sitting in the rear of the cruiser. In fact, it does not appear that Mr. Dougherty was cuffed until after the fail result and during the arrest outside of the police cruiser.

6. Constable Brouillette admitted to having closed the rear door of the vehicle and that there was no way for Mr. Dougherty to get out from the inside of the vehicle.

7. Constable Brouillette testified that the cruiser was a place of privacy. He estimated that there were 15 to 20 people on scene at the time. He also noted that Mr. Dougherty was embarrassed about having urinated in his pants. Mr. Dougherty was also very emotional. It would likely have been humiliating for Mr. Dougherty to have the approved screening device procedure conducted where he sat on the landscaping stone in front of 15-20 people, along with vehicles passing through.

8. Constable Brouillette testified that the cruiser was a place of safety, both for himself and Mr. Dougherty. There had been a serious motor vehicle collision. There were two heavily damaged vehicles in the roadway. There were still vehicles travelling on the highway. There was debris on the highway. Even though Constable Brouillette agreed that the landscaping stone was 4-5 metres off the road, he did not consider this a safe place in the circumstances.

9. There was less than a four-minute delay between when the approved screening device demand was made (8:24 p.m.) and the device arrived on scene (8:27:35 p.m.)

10. After the device arrived, Constable Brouillette ensured that the device was working properly as he was required to do. He also performed a self-test and provided instructions to Mr. Dougherty as to how to use the device.

11. Mr. Dougherty made a number of attempts to provide a sample, however he seemed to be attempting to trick the machine or provide a sub-standard breath sample.

12. The period of time taken to conduct the roadside screening test was relatively brief in the circumstances.

13. The interaction between Constable Brouillette and Mr. Dougherty appeared to be pleasant at all times.

Both from an objective and subjective standard, it was reasonably necessary for Constable Brouillette to have Mr. Dougherty accompany him to the cruiser and to conduct the approved screening device while Mr. Dougherty sat in the rear of the police cruiser. It would have been unconscionable for Constable Brouillette to administer the approved screening device, while Mr. Dougherty sat on a landscaping stone a few metres off the roadway in front of everyone. For reasons of privacy, safety and decency, Constable Brouillette did the only thing he could do, which was to have Mr. Dougherty attend to the police cruiser. Before putting Mr. Dougherty in the police cruiser, he did a cursory pat-down search over Mr. Dougherty's clothing to ensure that Mr. Dougherty did not have anything on him that he could harm himself or the officer with. This was reasonable in the circumstances.

There was no breach of s. 8 or 9 of the Charter in these circumstances. No evidence will be excluded on this basis.

Was the Breath Demand Made as Soon as Practicable?

According to s. 254(3) of the Criminal Code of Canada:

If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, or

(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood; and

(b) if necessary, to accompany the peace officer for that purpose.

The defence submitted that the breath demand was not made as soon as practicable. The evidence of Constable Brouillette was that he made the s. 254(3) demand at approximately 9:19 p.m. The Crown conceded that the breath demand by Constable Brouillette was not made "as soon as practicable", however argued that the binding case of R. v. Guenter indicates that a breath demand by a qualified technician satisfies the "as soon as practicable" component. The defence argued that whether the later demand cures the earlier error is a matter of discretion for the trial judge based on the facts of the case.

In R. v. Guenter, the court held that there was no requirement for the arresting officer to make the breath demand. A timely demand made by the breath technician after he or she receives grounds is sufficient to comply with s. 254(3).

In R. v. Ferose, the court held that the arresting officer failed to comply with the "as soon as practicable" requirement in s. 254(3), in circumstances where the officer did not make the breath demand until 34 minutes after the accused had been arrested. The court also held that a demand made by the breath technician at the station failed to comply with s. 254(3) because the Crown had failed to prove that the breath technician formed the requisite grounds for a demand.

In the present case, the defence conceded that Constable Lanzo had the requisite grounds to proceed.

In this case, Constable Brouillette did not make the demand until 9:19 p.m., which was certainly not "as soon as practicable". Constable Brouillette believed that he made the demand earlier but there was nothing to support that belief. On the other hand, Constable Lanzo made the breath demand very promptly after receiving and formulating his grounds. It is the view of this court that the later demand by Constable Lanzo cured the earlier error of Constable Brouillette.

The breath demand by Constable Lanzo was made as soon as practicable. No evidence will be excluded on this basis.

Were Rights to Counsel Violated at the Police Station?

The defence has submitted that, at the station, Mr. Dougherty was denied his counsel of choice, forced to speak to duty counsel, and did not receive a Prosper warning, allowing Mr. Dougherty to wait to hear back from his counsel of choice, Berk Keaney. The Crown has submitted that Mr. Dougherty did not diligently request Mr. Keaney after he was unable to get in touch with him, and that in fact, Mr. Dougherty's utterances indicate that he did not want to speak to any particular lawyer.

In R. v. Prosper, the Supreme Court of Canada clarified that "once a detainee has indicated a desire to exercise his or her right to counsel, the state is required to provide him or her with a reasonable opportunity in which to do so. In addition, state agents must refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel." This has been described as the obligation to "hold off".

The courts have held that there is no breach of s. 10(b) of the Charter if the detainee speaks to duty counsel after asking to speak to their own counsel, where the police first attempt to contact private counsel and are unable to do so. In R. v. Kumarasamy:

Since the trial, the Court of Appeal released the judgment in R. v. Littleford, which is instructive on the issues to be determined. That judgment, in addition to R. v. Mayo, establishes that there is no breach of s. 10(b) of the Charter if the detainee speaks to duty counsel after asking to speak to their own counsel, where the police first attempt to contact private counsel and are unable to do so. Unless the appellant did not understand the rights from counsel, had received inadequate legal advice, and still sought to contact his or her counsel, or the police conduct interfered with the detainee's ability to assert the rights, there is no violation of s. 10(b).

As for the Prosper warning, the Supreme Court of Canada held in R. v. Willier that a "Prosper warning" is not required when a detainee spoke to duty counsel after not being able to contact counsel of choice. A Prosper warning is warranted only when a detainee indicates an intent to forego s. 10(b)'s protections in their entirety.

The defence referred to the case of R. v. Delaney, where the accused had originally requested counsel of choice, but when that counsel could not be reached, the accused stated that he did not wish to speak to other counsel. The Crown in that case took the position that the defendant was not being reasonably diligent in the exercise of his right to counsel having turned down the offer to contact another lawyer when his lawyer of choice could not be reached. There was no Prosper warning in this case, in fact, the officer was not aware of the obligation to provide a Prosper warning. Harris J. stated:

The point is -- that if, as the officer says the defendant in fact declined an offer to speak with duty counsel or any other counsel, the logic of the two bedrock decisions noted above is that when the police cannot reach counsel of choice, and the defendant indicates he has changed his mind and no longer wants legal advice, the "Prosper duties" must be complied with and an unequivocal waiver obtained -- and only then will a defendant's failure to avail himself of duty counsel amount to a failure to exercise reasonable diligence. In my view, 'reasonable diligence' on the part of the defendant never comes into play in this case.

The only way that Prosper and all the 'reasonable diligence' cases can be reconciled is by giving effect to the case authorities noted above and placing the police duties and the accused's right to counsel obligations in their natural order. When counsel of choice cannot be reached after a reasonable waiting period, and an accused wishes to speak with alternate counsel, or duty counsel, an accused has to pursue that choice with reasonable diligence. Where an accused indicates that he or she has changed his or her mind and no longer wants legal advice, police must provide constitutionally sufficient information (the Prosper caution) in order to allow him or her to make a fully informed decision. This "additional informational requirement" on police "ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up," according to R. v. Prosper.

At this point, the police either have an informed, unequivocal waiver or a renewed interest in consulting counsel in respect to which, the accused must exercise reasonable diligence. This is a simple formula that could be reduced to print in the back of a memo book. As the Ontario Court of Appeal stated in R. v. Devries, "There is value in the use of a standardized s. 10(b) caution which complies with the informational requirements established in the Supreme Court of Canada jurisprudence." And police should be instructed to make careful notes of the accused's responses. Ideally, to avoid the perpetual contest about what information was conveyed and what answers were given, this information/waiver process should take place on video prior to any request to provide breath samples.

The essence of Prosper is the fact that it sets out the fundamental principles that marshal our understanding of the Charter right to counsel. The central concepts are clearly stated: (1) Courts must ensure that the Charter-protected right to counsel is not too easily waived, and (2) Given the importance of the right to counsel ... the standard required for an effective waiver of the right to counsel is very high. (3) The evidentiary presumption under s. 258(1)(d) of the Code, which provides that readings taken within two hours of an alleged offence are proof of the blood alcohol level at the time of the offence, is not a sufficiently "urgent" factor to override a detainee's right to counsel under s. 10(b), and (4) It is now well accepted that s. 10(b) serves to protect the privilege against self-incrimination, a basic tenet of our criminal justice system which has been recognized by members of this Court to be a "principle of fundamental justice" under s. 7 of the Charter.

The final point to be made is that when an individual finds himself (or herself) in a police Division under arrest and in detention, the relationship between the individual and the police is not a level playing field. It stands to reason that a person in custody for the first time, under the influence of some level of alcohol and being required to make some very stressful choices about counsel and whether to provide a breath sample, is likely to feel quite overwhelmed. This is precisely why the Prosper informational/waiver process is so vitally important.

Further in R. v. Maciel, Stribopoulos J. questioned police operational procedures, specifically the fact that some police forces have assumed the responsibility of contacting counsel on behalf of those who are in police custody as opposed to allowing the person in custody access to a phone, a phone book or even the Internet. The court stated:

It is very much the function of the courts to assess the adequacy of police efforts in the discharge of their constitutional obligations. It follows that if the police assume the responsibility of contacting counsel of choice on behalf of a person who is in their custody, then it is for the courts to assess the adequacy of those efforts. Of course, this begs the question as to what standard should be used in evaluating the adequacy of police efforts.

If the police did not assume this responsibility, those in detention would be expected to exercise reasonable diligence in contacting their lawyer of choice. Where the police take on this function on behalf of the detainee, it seems eminently sensible to subject their efforts to the same standard. Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing. In that regard, I completely agree with the comments of Justice Horkins, who noted:

When the police, as an institution, decide to take control of the accused's means of accessing counsel of choice, they also assume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply.

I believe this standard is in keeping with the duty upon the police to facilitate contact with a detainee's counsel of choice. I therefore intend to apply it in assessing the adequacy of the police efforts in this case.

In R. v. Fountain, the Ontario Court of Appeal stated:

The "Prosper warning" is meant to equip detainees with the information required to know what they are giving up if they waive their right to counsel. A Prosper warning is not required in all cases. It is needed only if "a detainee has asserted the right [to counsel] and then apparently change[s] his mind" after reasonable efforts to contact counsel have been frustrated. In such circumstances, "the burden of establishing a waiver of those rights is on the Crown" and is a high one, requiring proof of a clear, free and voluntary change of mind made by someone who knew what they were giving up. A proper Prosper warning is therefore significant in enabling the Crown to prove waiver of the right to counsel in such cases.

It is the view of this court that, on the evidence in this case, there was no violation of s. 10(b) at the police station. Having considered the totality of the evidence, the following facts are found by this court and must be highlighted:

(1) At 8:59 p.m., Mr. Dougherty chose Berk Keaney's name from the list of lawyers available at the police station.

(2) Constable Brouillette called the number available to him on that list. Constable Brouillette believed that there was only one number available on the list. While Ms. Burton's evidence was that the police had Mr. Keaney's cell phone number, she could not provide evidence as to which phone number(s) appeared on the lawyers' list.

(3) There was no answer at the number available.

(4) Constable Brouillette asked Mr. Dougherty if he wanted a message left, which was his normal practice in these circumstances, to which Mr. Dougherty said "no".

(5) At 21:01:06 (9:01 p.m.) on the breath room video, Constable Brouillette is overheard saying there is a list of lawyers here, encourage you to choose one for legal advice. Steven Dougherty asks what he should tell them he is being charged with. Constable Brouillette responds to Mr. Dougherty that he should tell them under arrest for over 80 mg.

(6) Mr. Dougherty then chose Michael Harashuk's name from the list of lawyers available. There were two numbers for Mr. Haraschuk.

(7) At 9:04 p.m., Constable Brouillette called the first number available to him on that list.

(8) There was no answer at the number available.

(9) Constable Brouillette asked Mr. Dougherty if he wanted a message left, to which Mr. Dougherty said "no".

(10) At 9:05 p.m., Constable Brouillette called the second number available to him on that list.

(11) There was no answer at the number available.

(12) Constable Brouillette asked Mr. Dougherty if he wanted a message left, to which Mr. Dougherty said "no".

(13) At 21:09:55 (9:09:55 p.m.) on the breath room video, Constable Lanzo opened the door to the breath room but stayed in the room. According to the testimony of Constable Lanzo, the voices heard are Constable Brouillette, Acting Staff Sgt Lefebvre, and Steven Dougherty.

(14) At 21:10:09 (9:10:09 p.m.), an officer is overheard saying "take a look at the list again and see if there is any names that you recognize." Constable Brouillette was then naming names from a list, alphabetically.

(15) At 21:11:45 (9:11:45 p.m.), Constable Lanzo exited the breath room. A voice is overheard saying, "We can't just call a lawyer, you have to pick somebody. Why don't you call Legal Aid." Constable Lanzo testified that he entered the booking room as the officers were experiencing difficulties about counsel of choice. Constable Lanzo suggested Legal Aid. According to Constable Lanzo, Mr. Dougherty said "that's ok" after Constable Lanzo asked "is that ok"

(16) Constable Brouillette testified that Mr. Dougherty spoke to duty counsel, Jim Murphy, between 9:11 p.m. and 9:15 p.m. However, it appeared from the video that at 21:14:57, Steven Dougherty walked by the open door of the breath room into another area. This appeared to be the time when Mr. Dougherty began speaking to counsel. At 21:17:13, Steven Dougherty comes back into sight, outside the breath room. Therefore, this court finds that Mr. Dougherty spoke to counsel, Jim Murphy, between 9:14:57 p.m. and 9:17:13 p.m.

The police made significant efforts to reach counsel for Mr. Dougherty. They called the lawyers that he chose from the list. They had discussions with Mr. Dougherty about the fact that they could not choose counsel for him, despite his requests for them to do so.

On the evidence presented, Mr. Dougherty did not diligently request Mr. Keaney after he was unable to get in touch with him. Indeed, the evidence, which this court accepts, is that he did not wish to leave a message. While it is true that the notes of Constable Brouillette are lacking in some respects, such as the notes do not indicate that it was Mr. Dougherty who did not want a message left, this court accepts Constable Brouillette's evidence that the reason he did not leave a message was because Mr. Dougherty said he did not want a message left. The defence submitted a number of things that they suggest can be heard on the video, such as Mr. Dougherty can clearly be heard saying "call Keaney" multiple times and that Constable Lanzo then interrupts and suggests Legal Aid Ontario and Duty Counsel. These comments were certainly not clear to this court.

Mr. Dougherty's requests for the police to choose a name further indicates that Mr. Dougherty did not want to speak to a particular lawyer. He just wanted to speak to a lawyer. Constable Brouillette testified that he did not steer Mr. Dougherty towards a particular lawyer. In fact, on the breath room video, the police are overheard stating that they cannot just call a lawyer and that he has to pick someone.

Mr. Dougherty was put in touch with duty counsel.

There was no requirement for a Prosper warning in these circumstances. There was no reason for the police to hold off in this case where Mr. Dougherty did not want the officer to leave a message for Mr. Keaney. He then tried another lawyer, Mr. Harashchuk. He is then clearly heard telling the police to choose a lawyer for him. The police would have no reason to give a Prosper warning in these circumstances or to hold off.

There is no breach of s. 10(b) at the police station on the facts of this case. No evidence will be excluded on this basis.

Has the Crown Proven that the Driver of the Red Ford Pick Up Was in Fact Steven Dougherty?

Having decided that the roadside statements of Mr. Dougherty are admissible and having decided that the breath room video and audio is admissible, it is clear that Mr. Dougherty is the driver of the red Ford pick-up.

Has the Crown Proven Beyond a Reasonable Doubt that Mr. Dougherty, While His Ability to Operate a Motor Vehicle Was Impaired by Alcohol, Did Have the Care or Control of a Motor Vehicle?

As stated previously, there is no doubt that Mr. Dougherty was the driver of the red Ford pick-up truck at the time of the collision with Mr. Riopel's vehicle.

The charge of impaired driving is established if there is proof beyond a reasonable doubt of any degree of impairment to operate a motor vehicle from slight to great.

Impairment to drive relates to reduced ability to perform complex motor functions.

In R. v. Milne, the court held that "an officer may observe signs of impairment in a driver, such as a strong odor 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".

In R. v. Quenneville, the court held that the line drawn in R. v. Milne as to the limitation on the use of evidence acquired at the roadside, is evidence obtained through the "compelled direct participation" in sobriety trials. The observations made as the respondent exited his vehicle, even in response to a direction from the officer, is not compelled direct participation in the roadside tests so as to attract the limitation on use.

The defence submitted that any physical indicia initially noted were easily attributed to the accident and that throughout the interaction with Mr. Dougherty, he appeared to be fine with respect to comprehension and balance. Further, the defence submitted that there are admittedly numerous instances where Mr. Dougherty is difficult to understand on the recording, however, in real time, Constable Lanzo understood Mr. Dougherty. Finally, the defence submitted that the evidence available to the officers did not amount to reasonable and probable grounds for an impaired charge until the breath test results were known and that Constable Lanzo's opinion of impairment was based entirely on the breath test results.

It is the view of this court that there is ample evidence of impairment in this case and that the Crown has proven beyond a reasonable doubt that Mr. Dougherty had care or control of a motor vehicle while his ability to do so was impaired. The following facts are accepted by this court and provide proof of this offence:

(1) Martin Riopel testified that he was turning left and he saw a red truck coming toward him. The red truck was travelling at a high rate of speed which he stated to be more than 100 km/h. The truck hit and mounted the median, hit a light post, and then collided with Mr. Riopel's vehicle.

(2) The collision occurred on a dry, sunny evening in June.

(3) There was no external cause for this accident.

(4) Mr. Riopel noticed Mr. Dougherty on the side of the road walking. Mr. Dougherty appeared to be dizzy, lost and disoriented.

(5) Mr. Riopel noticed that Mr. Dougherty had urinated in his pants.

(6) Constable Brouillette smelled an odour of alcohol coming from Mr. Dougherty's breath, his speech was slurred, he was unsteady on his feet, and it appeared he had urinated in his pants.

(7) In the breath room, with Constable Lanzo, Mr. Dougherty admitted to consuming alcohol, and said that he "drank too much". He admitted having commenced drinking at 5:00 p.m. He said that he was drinking beer and whiskey. He drank his last whiskey within 2 minutes and that this was "not long before I got in shit".

(8) Mr. Dougherty stated that he had only been driving for about two minutes when the accident occurred.

(9) The stain on his pants is visible to corroborate that he urinated in his pants.

(10) His speech is slurred on the breath room video.

(11) Mr. Dougherty provided the wrong answer when asked about the date and time.

(12) Mr. Dougherty started to fall back slightly in the chair when attempting to provide the breath sample.

(13) He had difficulty providing the second sample.

(14) He repeatedly asked Constable Lanzo to give him a break or to "fuck up" the tests.

(15) He started to hiccup while in the breath room.

(16) His emotions were somewhat erratic – from smiling to crying.

The overwhelming conclusion is that Mr. Dougherty was impaired by alcohol and that he was so impaired at the time that he had care or control of his vehicle.

The Crown has proven the offence of impaired care or control beyond a reasonable doubt.

Over 80 – Presumption of Identity and the Rajotte Report

It is the position of the defence that the evidence does not establish that the first breath sample was taken within two hours and the Rajotte report is of no evidentiary assist to the Crown, as the evidence does not establish two separate pre-conditions necessary for the report to be of any value, namely:

1. The accident occurred between 7:35 p.m. and 8:24 p.m.; and
2. The absence of bolus drinking

Section 258(1)(c) of the Criminal Code states that where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things - that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed.

According to the presumption of identity, the lowest of the two breath samples is deemed to be the blood alcohol concentration at the time of the accident. However, the Crown must prove beyond a reasonable doubt that the first breath sample was taken within two hours of Mr. Dougherty operating or having care or control of a motor vehicle.

There is no question that the first breath sample was taken at 9:40 p.m.

The only direct evidence as to the time of the accident is from Mr. Riopel. Mr. Riopel estimated the time of the accident to be around 7:45 p.m., however he agreed that he did not look at his watch after the accident and he was not asked about the time in his statement. He estimated that time because he called his father around that time.

In addition to the evidence of Mr. Riopel, the court also has the evidence from Constable Brouillette that he was aware that this event was created at 7:44 p.m. meaning that was the time of the first 911 call. The contents of the call are hearsay but the timing of the call can be considered by this court.

This court is not convinced beyond a reasonable doubt on the basis of this evidence that the first breath sample was obtained within 2 hours. Clearly, Mr. Riopel is not precisely right about the timing of the accident given that the 911 call was made at 7:44 p.m. Clearly the accident occurred before the 911 call. The Crown argued that given the magnitude and location of this accident, this court can infer that the 911 call was made immediately. This court cannot infer that fact from the evidence in this case.

It is the view of this court that the Crown is not entitled to the presumption in s. 258(1)(c) given that there is some uncertainty about the exact time of the accident.

However this does not end the inquiry. When the elements to establish the presumption are not satisfied, blood alcohol concentration may be established through expert evidence relating the readings back to the time of driving.

As previously stated, the Crown has obtained an expert report in this case, however the defence takes issue with the foundation upon which the expert relies, specifically the time of the accident and the absence of bolus drinking.

Courts have held that the assumptions about elimination rate and plateau differ from the assumptions regarding drinking before and after the incident. Elimination rate and plateau are matters of scientific knowledge on which an expert is entitled to rely without further proof by the Crown. Bolus drinking and no drinking after the incident are foundation that must be proven in evidence. Bolus drinking must be negated beyond a reasonable doubt by the Crown when the expert's opinion assumes no bolus drinking.

In R. v. Grosse, the court indicated the following respect to bolus drinking:

On the facts of the case before us, what Wilson J. referred to as the fourth proposition from R. v. Abbey applies. That fourth proposition was summarized by Wilson J. as follows:

Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist.

In this case the lack of bolus drinking was part of the foundation for the opinion. If the evidence to support that assumption did not exist then the opinion would have to be discarded. We note that the Alberta Court of Appeal has come to a similar conclusion in R. v. Dean. Accordingly, in the circumstances of this case, the Crown was required to prove the lack of bolus drinking.

In the alternative, Mr. Libman argued that because of the difficulty for the Crown proving a negative, i.e., that there was no bolus drinking, the onus is on the accused to show that he had consumed the large quantity of alcohol, which would undermine the expert's opinion. Mr. Libman argued that the amount of alcohol consumed is a matter peculiarly within the knowledge of the accused and it is fair that the accused have the burden of proof of this issue. We assume that Mr. Libman is suggesting that there be only an evidentiary burden on the accused, not a persuasive burden.

In our view, this argument must also be rejected. In effect, Mr. Libman would have us create a common law presumption, in a case such as this, that in the absence of evidence to the contrary an accused against whom expert evidence of blood alcohol level is tendered is deemed not to have consumed large quantities of alcohol immediately before providing a breath sample. There is no basis for creating such an extraordinary presumption. Parliament has by statute created a presumption to assist the Crown in proof of the blood alcohol level at the time of the alleged offence. That presumption, however, is based on proof of a number of facts including proof that the tests were taken within two hours of the alleged offence.

It would not be appropriate for the courts to broaden the scope of the statutory presumption when the carefully crafted conditions in s. 258 cannot be met. Where the Crown cannot rely upon the presumption in s. 258(1)(c) it must prove its case in the ordinary way. Here Crown counsel at trial accepted that burden and called the expert evidence of Mr. Robinson. The normal rules for admissibility and weight to be attached to expert evidence had to be followed.

In our view, while there was not a great deal of evidence to support the assumption of no bolus drinking, there was sufficient evidence that it could not be said that the trial judge's decision was unreasonable. It was open to the trial judge to take into account that there were no containers or bottles of alcohol found in the vehicle, no strong odour of alcohol about the respondent, and no evidence that the respondent had just left a drinking establishment. The trial judge was also entitled to consider that it was inherently unlikely that the respondent, in the space of less than 30 minutes, before embarking on his trip home to Brampton would consume the equivalent of nine ounces of alcohol. This was not a matter of taking judicial notice of drinking patterns but merely applying common sense as to how ordinary people behave. Further, the comments of Arbour J.A. in R. v. Johnson apply:

[I]n the face of proven facts calling out for an explanation, the failure of the accused to testify has evidentiary significance when the accused is in a unique position to provide such an explanation. Failure to testify is not evidence of guilt. It cannot be used to relieve the Crown of its burden of proving guilt beyond a reasonable doubt. However, when an innocent explanation for an incriminating set of facts is not offered by the accused, or when his explanation comes solely from an out-of-court statement which has been introduced in evidence, if he does not submit himself to cross-examination, the judge or jury may properly draw from that an inference unfavourable to the accused.

In view of the circumstantial evidence that tended to demonstrate that the respondent had not engaged in bolus drinking, and the respondent's unique position to offer an explanation, the trial judge was entitled to draw an adverse inference unfavourable to the respondent from his failure to testify to such an unusual drinking pattern.

The rational for the approach of the Ontario Court of Appeal in cases such as Hall and Grosse is a practical evidentiary burden on the accused to point to something in the evidence that at least puts the possibility of bolus drinking in play.

It is the view of this court that the time of the accident which was provided to the expert is a fairly broad time frame. However, even if the time frame is off slightly, Mr. Dougherty would still have been over 80 mg of alcohol in 100 ml of blood long before this time frame, based on the rates of elimination referred to by the scientist.

The only other non-scientific variable assumption made by the expert is that there was no consumption of large quantities of alcoholic beverages within 15 minutes prior to the incident.

In the case at bar, the possibility of bolus drinking is in play according to the evidence, specifically Mr. Dougherty's utterances in the breath room, such as:

(1) He was drinking at the Clubhouse.

(2) He consumed beer and whiskey.

(3) He is not sure of the quantities he drank.

(4) He indicated that he drank too much.

(5) He began drinking at 5:00 p.m.

(6) His last drink was whiskey, and he drank it in two minutes

(7) He had his last drink "not long before I got in shit".

(8) He had been driving two minutes when the accident occurred.

Further, the evidence from the police officers was that the Clubhouse is located at Second Avenue and Bancroft, and that the driving time from the Clubhouse to the scene of the accident is approximately three minutes.

Based on the facts of this case, there is some evidence that Mr. Dougherty consumed a large quantity of alcohol immediately or shortly before driving. His comment that he had his last drink "not long before I got in shit" does cause this court to question the possibility of bolus drinking. While, there were some reliability issues with Mr. Dougherty's statements, such as he believed it was 1:00 am, when in fact it was shortly before 10:00 p.m., the statements noted above are accepted by this court as credible and reliable. It appeared to be an honest and genuine comment.

The readings that were taken at 9:40 p.m. and 10:06 p.m. were 259 and 246 respectively. These readings are more than three times the legal limit of 80 mg in 100 ml of blood. Given the fact that Mr. Dougherty's readings were so high so long after the police attended at the scene of the accident would suggest to this court that the readings at the relevant time were likely over 80 mg. However, in my view, the Crown has not demonstrated this beyond a reasonable doubt.

The Crown could have easily asked the expert to provide an opinion based on these utterances of Mr. Dougherty, however, this was not done in this case.

Given the court's concerns about the reliability of the expert's opinion in this regard, the Crown has not proven beyond a reasonable doubt that Mr. Dougherty had over 80 mg of alcohol in 100 ml of his blood at the time he had the care or control of his motor vehicle. Mr. Dougherty is found not guilty of this offence.

Dangerous Driving

In order for the Crown to prove the case against Mr. Dougherty in relation to the charge of dangerous operation of a motor vehicle, it must prove each of these essential elements beyond a reasonable doubt:

(1) That he operated a motor vehicle; and

(2) That he operated the motor vehicle in a manner that was dangerous to the public.

There is no question that this is a motor vehicle and that Steven Dougherty was the person operating that motor vehicle. The real question in this case is whether Mr. Dougherty operated the vehicle, the red Ford pick-up truck, in a manner that was dangerous to the public. In considering this, the Court must take into account a number of factors, including, but not limited to the following:

(1) The nature, condition and use of the place where the driving occurred;

(2) The amount of other traffic, both vehicles and pedestrians, actually there at the time; and

(3) The amount of other traffic, both vehicles and pedestrians, that might reasonably be expected to be there at the time.

Dangerous operation of a motor vehicle involves more than mere carelessness. The Crown must prove beyond a reasonable doubt that Mr. Dougherty's driving was a marked departure from what a reasonably, prudent driver would do in the same circumstances.

It is the manner of Mr. Dougherty's driving, not its consequences that must be the Court's focus. Crown counsel does not have to prove that Mr. Dougherty meant to endanger the lives or safety of anyone who was or might have been there at the time. Nor does the Crown have to prove that someone was actually harmed by the way in which Mr. Dougherty drove his motor vehicle.

In R. v. Beatty, the Supreme Court of Canada discussed the elements of the offence of dangerous operation and made it clear that there is a true distinction between civil and penal negligence in a criminal setting. The Court stated in part:

Unquestionably, conduct which constitutes a departure from the norm expected of a reasonably prudent person forms the basis of both civil and penal negligence. However, it is important not to conflate the civil standard of negligence with the test for penal negligence. Unlike civil negligence, which is concerned with the apportionment of loss, penal negligence is aimed at punishing blameworthy conduct. Fundamental principles of criminal justice require that the law on penal negligence concern itself not only with conduct that deviates from the norm, which establishes the actus reus of the offence, but with the offender's mental state. The onus lies on the Crown to prove both the actus reus and the mens rea. Moreover, where liability for penal negligence includes potential imprisonment, as is the case under s. 249 of the Criminal Code, the distinction between civil and penal negligence acquires a constitutional dimension.

The modified objective test established by this Court's jurisprudence remains the appropriate test to determine the requisite mens rea for negligence-based criminal offences. As the label suggests, this test for penal negligence "modifies" the purely objective norm for determining civil negligence. It does so in two important respects. First, there must be a "marked departure" from the civil norm in the circumstances of the case. A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability for penal negligence. The distinction between a mere departure and a marked departure from the norm is a question of degree. It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind.

Second, unlike the test for civil negligence which does not concern itself with the mental state of the driver, the modified objective test for penal negligence cannot ignore the actual mental state of the accused. Objective mens rea is based on the premise that a reasonable person in the accused's position would have been aware of the risks arising from the conduct. The fault lies in the absence of the requisite mental state of care. Hence, the accused cannot avoid a conviction by simply stating that he or she was not thinking about the manner of driving. However, where the accused raises a reasonable doubt whether a reasonable person in his or her position would have been aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal. The analysis is thus contextualized, and allowances are made for defences such as incapacity and mistake of fact. This is necessary to ensure compliance with the fundamental principle of criminal justice that the innocent not be punished.

I would therefore restate the test reproduced above as follows:

(a) The Actus Reus

The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place".

(b) The Mens Rea

The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

In determining the question of mens rea, the court should consider the totality of the evidence, including evidence, if any, about the accused's actual state of mind. As discussed at length above, the mens rea requirement for the offence of dangerous driving will be satisfied by applying a modified objective test. This means that, unlike offences that can only be committed if the accused possesses a subjective form of mens rea, it is not necessary for the Crown to prove that the accused had a positive state of mind, such as intent, recklessness or wilful blindness. Of course, this does not mean that the actual state of mind of the accused is irrelevant. For example, if proof is made that a driver purposely drove into the path of an oncoming vehicle in an intentionally dangerous manner for the purpose of scaring the passengers of that vehicle or impressing someone in his own vehicle with his bravado, the requirement of mens rea will easily be met. One way of looking at it is to say that the subjective mens rea of intentionally creating a danger for other users of the highway within the meaning of s. 249 of the Criminal Code constitutes a "marked departure" from the standard expected of a reasonably prudent driver.

However, subjective mens rea of the kind I have just described need not be proven to make out the offence because the mischief Parliament sought to address in enacting s. 249 encompasses a wider range of behaviour. Therefore, while proof of subjective mens rea will clearly suffice, it is not essential. In the case of negligence-based offences such as this one, doing the proscribed act with the absence of the appropriate mental state of care may instead suffice to constitute the requisite fault. The presence of objective mens rea is determined by assessing the dangerous conduct as against the standard expected of a reasonably prudent driver. If the dangerous conduct constitutes a "marked departure" from that norm, the offence will be made out. As stated earlier, what constitutes a "marked departure" from the standard expected of a reasonably prudent driver is a matter of degree. The lack of care must be serious enough to merit punishment. There is no doubt that conduct occurring in a few seconds can constitute a marked departure from the standard of a reasonable person. Nonetheless, as Doherty J.A. aptly remarked in Willock, "conduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum". Although Willock concerned the offence of criminal negligence, an offence which is higher on the continuum of negligent driving, this observation is equally apt with respect to the offence of dangerous operation of a motor vehicle.

A few years later, in R. v. Roy, the Supreme Court again considered the necessary fault element. Specifically the Supreme Court of Canada considered whether proof of the actus reus without more could support the inference that the required fault element is present. The Court referred to the analysis in Beatty and added the following comments:

A fundamental point in Beatty is that dangerous driving is a serious criminal offence. It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established. Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy. The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness.

In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences, such as an accident in which he or she was involved. The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving. A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value. Accidents caused by these inherent risks materializing should generally not result in criminal convictions.

The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances. It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.

Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal.

Determining whether the required objective fault element has been proved will generally be a matter of drawing inferences from all of the circumstances. The trier of fact must examine all of the evidence, including any evidence about the accused's actual state of mind.

Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving. The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity.

In 2015, in Hecimovic, the Supreme Court of Canada looked at this issue once again, however, the Court simply dismissed the appeal for the reasons of the majority of the Court of Appeal decision.

The questions to be asked here are as follows:

(1) Was Mr. Dougherty's driving, viewed objectively, dangerous to the public in all of the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place?

(2) Was the dangerous manner of Mr. Dougherty's driving the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances?

(a) In light of all the evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible?

(b) If yes, was Mr. Dougherty's failure to foresee the risk and take steps to avoid it if possible, a marked departure from the standard of care expected of a reasonable person in the accused's circumstances?

It is the totality of the circumstances that must be considered. In answer to the first question - was Mr. Dougherty's driving, viewed objectively, dangerous to the public in all of the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place - the Court finds and has considered the following facts:

(1) Mr. Dougherty had alcohol in his body at the time he was driving and was impaired.

(2) Mr. Dougherty was traveling at a high rate of speed according to Mr. Riopel as he approached the intersection.

(3) It was a sunny evening, and the road was dry. There was no external cause for this accident.

(4) Mr. Dougherty's vehicle began to go diagonally across the road he was travelling, narrowly missing a sign post, mounted a median with its two left tires, and hit and took down a light post. At this point, Mr. Dougherty's vehicle was travelling sideways and hit Mr. Riopel's vehicle.

(5) From the point the vehicle started to go out of control to the median was approximately 200 feet.

(6) This occurred on a Thursday evening, on a busy highway in Sudbury.

Viewed objectively, Mr. Dougherty's driving was dangerous to the public in all of the circumstances. This occurred on a weekday evening. There were other vehicles on the roadway. Kingsway is a public roadway where other drivers and pedestrians are entitled to be. Even if vehicles and pedestrians were not actually present at the time, which they were in this case, one could reasonably expect them to be at that time and place. The cumulative nature of Mr. Dougherty's driving was dangerous to the public in all of the circumstances. Clearly Mr. Dougherty lost control of his vehicle, travelled diagonally across the roadway and hit the median and light post, causing a further loss of control. Mr. Dougherty was obviously unable to regain control of his vehicle in the 200 feet that it travelled across the roadway. This court finds that speed was a significant contributing factor in this collision and that the speed was well over the posted speed limit. This court also finds that alcohol was a significant contributing factor in this collision.

This finding, of course, does not end the analysis.

In answer to the second question - was the dangerous manner of Mr. Dougherty's driving the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances – the court has considered:

(a) In light of all the evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible; and

(b) If yes, was Mr. Dougherty's failure to foresee the risk and take steps to avoid it if possible, a marked departure from the standard of care expected of a reasonable person in his circumstances.

There must be a meaningful inquiry into the manner of driving with a focus on the risk. Driving itself is inherently dangerous but a socially and legally approved activity nonetheless. Accidents do happen and accidents are not crimes. The Court must identify how and in what way the conduct is a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances.

In this case, the Court has relied on the following facts in determining how and in what way the conduct is a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances:

(1) Mr. Dougherty was driving at more than 100 km/h as he approached this intersection. A reasonable person would not have been driving at this rate of speed on this road through this intersection. Constable Brouillette testified that this area was an 80 km zone.

(2) Mr. Dougherty started driving diagonally across a roadway as he approached this intersection of the Kingsway and 3rd Avenue. The road was flat and dry. A reasonable person would have foreseen the risk of driving diagonally across the roadway and would have corrected that behavior before coming into contact with the median, a light pole, and another vehicle.

(3) Given the time and area where this occurred, in the evening on an industrial / residential street, specifically on the Kingsway in Sudbury, any reasonable person would have foreseen the risk involved in driving in this manner.

(4) Mr. Dougherty chose to drive in this manner with alcohol in his body.

The Court must consider all of the facts and circumstances and decide whether in light of all the evidence would a reasonable person have foreseen the risk and taken steps to avoid it if possible. This manner of driving on a weekday evening on a busy street in Sudbury, in conjunction with all the other circumstances, leads me to reach the conclusion that his driving was not just a slip, momentary inattention, or a slight departure from what is expected of all reasonably prudent drivers in the circumstances. Driving a vehicle across a busy roadway, diagonally, hitting the median and light post, and colliding with another vehicle was so clearly dangerous to members of the public. There was no discernible reason on the evidence before this court for Mr. Dougherty to have been driving in such a manner. Mr. Dougherty's impairment is also a relevant consideration to the marked departure.

The conduct was markedly beyond careless. A reasonable person would have foreseen the risks and taken steps to avoid those risks. Mr. Dougherty's failure to foresee the risk and take steps to avoid it, is most definitely a marked departure from the standard of care expected of a reasonable person in his circumstances.

The Court finds Steven Dougherty guilty of dangerous operation of a motor vehicle.

Conclusion

The verdict of this court is as follows:

Count 1 – Impaired Care or Control – GUILTY

Count 2 – Over 80 – NOT GUILTY

Count 3 – Dangerous Driving – GUILTY

Count 4 – Fail to Comply with Probation – To Hear Further Submissions

Count 5 – Fail to Comply with Probation – To Hear Further Submissions

Released: September 17, 2018

Signed: Justice V. Christie