Court File and Parties

Court File No.: Toronto 17-75002677 Date: 2018-10-23 Ontario Court of Justice

Between: Her Majesty the Queen — and — Candace Cooke

Before: Justice Bhabha

Heard: July 18th, 19th and August 14th 2018, and October 18th

Reasons for Judgment released: October 23rd 2018

Counsel:

• V. Gallegos, for the Crown
• B. Starkman, for the Defendant

Judgment

Bhabha, J.:

Overview of the Case

[1] The defendant, Candace Cooke, is charged with two driving-related offences: one count of impaired driving and one count of failing to comply with a demand to provide samples of her breath.

[2] Late in the evening of June 5th 2017, the defendant rear ended another motorist while he was stopped at a stop light. The collision was not a major one. The other driver, Mr. Coll, hoped simply to exchange information with Ms. Cooke and then get on his way to work. Ms. Cooke initially appeared to be contrite and willing to cooperate. Without explicitly refusing to produce the driving-related documents Mr. Coll requested, she did not manage to hand them all over. Instead, she presented the same document repeatedly in between making calls in her car.

[3] After it became clear to Mr. Coll that all of the documents he needed were not going to be forthcoming, he became frustrated and eventually called 911. Over the relatively short passage of time he dealt with the defendant, he began to suspect that she may be impaired. He informed the 911 operator of this. This information was available to the arresting officer before he arrived on scene.

[4] Soon after he arrived on scene, the arresting officer detected the smell of alcohol on Ms. Cooke's breath. He asked her if she had consumed alcohol and she responded by providing an explanation for the odour, but denied consumption. The officer did not observe any other overt or typical indicia of impairment. He therefore suspected that she may be impaired. For that reason, he made a request that she provide a sample of her breath into an approved screening device (the "ASD").

[5] As he was explaining the test to Ms. Cooke, she asked if she could have a cigarette. When told she would have to wait until everything was done, she then took issue with complying with the demand at the roadside. The officer explained that she was required to comply with the demand at the roadside and going to the station for the roadside test was not an option. When it appeared to the officer that Ms. Cooke was not listening to the officer and not complying with the ASD demand, he arrested her for impaired driving. The defendant's interactions with the officer relating to the demand and her arrest were captured on the in car camera. [1]

[6] Ms. Cooke was promptly handcuffed, given the approved instrument demand, and read her right to counsel. It was clear from her response that she did want to speak to counsel.

[7] Another man, identified as Ms. Cooke's father, appears to have arrived on scene just before the arresting officer arrived. He was present when the ASD arrived, and was also present for the arrest. He can be heard on the in car video imploring his daughter to cooperate with the officer.

[8] Ms. Cooke, who was handcuffed at the time, heeded her father's advice and asked the officer to give her an opportunity to provide a roadside breath sample. The officer agreed to give her that opportunity. Ms. Cooke remained handcuffed as the officer administered the test. After as many as ten (10) failed attempts, Ms. Cooke finally provided a suitable sample. She registered a fail.

[9] Following the fail result, the officer then arrested Ms. Cooke for driving "Over 80", and made the approved instrument demand, a second time. Ms. Cooke asked the officer to redo the ASD test. This time the officer did not agree to her request. She was taken to the station so that she could provide samples of her breath into the approved instrument.

[10] At the station, the breath technician gave Ms. Cooke as many as fifteen opportunities to provide proper samples of her breath, but she failed to do so [2]. She was then arrested for refusing to provide suitable samples of her breath.

[11] At trial, the Crown called Mr. Coll, the other motorist involved in the collision, the arresting officer, as well as the breath technician. The defence chose not to call any evidence.

Issues Raised and the Position of the Defence

A. Relating to the Refuse Charge

[12] The issues the defence raises relating to this count have to do primarily with the decisions the arresting officer made and, in particular, the timing, sequence, and motivation for the steps he took.

[13] Firstly, the defendant submits that the ASD demand was not lawful as the officer had already formed grounds to arrest her for impaired driving. In making the demand when he already formed grounds, he was effectively hoping to gather incriminating evidence in the form of a possible fail result from the ASD.

[14] Secondly, (and in contradiction), the defendant submits that the arrest for impaired driving was premature. The submission is that the officer, who was clearly frustrated with the defendant, rushed the process and did not give the defendant a proper or fair chance to comply with the ASD demand before arresting her and making the initial approved instrument demand.

[15] Third, the defence submits that the officer breached the defendant's section 9 and 10(b) rights when, following the arrest, he allowed her to comply with the ASD after she insisted that the officer give her the opportunity to do so.

[16] Fourth, the defendant submits that the renewed or second approved instrument demand following the failed ASD in effect "overrode" the first approved instrument demand made minutes before upon her arrest.

[17] Finally, the defendant submits that since the first demand was "negated", there was no lawful basis for the renewed or second approved instrument demand following the "fail" result. This is because the defendant was already under arrest at the time she ultimately complied with the ASD. The "fail" result was therefore obtained in a manner the infringed her Charter rights under sections 9 and 10(b). Since the second approved instrument demand was premised on the impugned ASD result, the evidence related to the charge of refusing to provide a breath sample ought to be excluded under s. 24(2) of the Charter.

[18] I propose firstly to deal with the issues raised relating to the refuse charge. I will then address the issues relating to the impaired charge.

[19] The sequence of how the investigation progressed was as follows:

1. The arresting officer, Sergeant Strangways, testified that he formed a suspicion that the defendant may be impaired [3];

2. The officer made the ASD demand (but, there was no roadside test administered as result of the demand, at least not initially. After the demand, the defendant asked if she could have a cigarette, then she repeatedly questioned the need to comply at the roadside. She wanted to do it at the station);

3. In the face of what appeared to the officer to be a sudden change in the defendant's behaviour, that is, resistance to the demand, the officer made a decision to arrest the defendant for impaired driving. [4] He also made the approved instrument demand;

4. The officer read the defendant her right to counsel. She indicated her intention to exercise that right [5];

5. The officer, following the arrest, administered the ASD. The defendant, encouraged by her father to cooperate, insisted she wanted to have that opportunity.

6. The defendant registered a "fail" result on the ASD (after about ten failed attempts) [6];

7. The officer charged the defendant with for "Over 80" and made a 2nd approved instrument demand;

8. The defendant was transported to the station where she consulted with duty counsel [7];

9. The defendant made fifteen (15) failed attempts to provide samples of breath into the approved instrument. She informed the breath technician that she did not understand why she was unable to provide suitable samples because she was doing her best. The process lasted over ten (10) minutes. The instrument had to be re-set twice because it "time-out";

10. The defendant was arrested for refusing to provide a suitable sample into the approved instrument.

Was the ASD Demand Lawful?

[20] The defence submits that the ASD demand was not a lawful demand given the officer's evidence that he suspected that the defendant may be impaired before he made the demand. The submission is that he ought to have proceeded to make the arrest for impaired driving instead.

[21] Sergeant Strangways testified that he suspected that the defendant may be impaired. That was based on his experience and the information available to him. However, allowing for the possibility that he may be wrong in his assessment, he decided to make the ASD demand.

[22] The defence does not take issue that there were ample grounds to make the ASD demand. All that is required is a reasonable suspicion. In this case, there was the unexplained rear-end collision, the suspicion of the other driver, and the odour of alcohol from the defendant's breath in the face of her denial of having consumed alcohol.

[23] The defence position is that the officer should not have made the ASD demand and ought to have charged the defendant with impaired driving if he believed he had the requisite grounds. In proceeding with the ASD he was unlawfully gathering potentially incriminating evidence.

[24] However, the defence also takes the position that the officer's arrest of the defendant before the ASD test was hasty and premature. It was suggested to the officer that the timing of the arrest had more to do with his bad mood that evening that caused him to lose his temper with Ms. Cooke.

[25] This argument strikes me as somewhat contradictory. A similar argument was advanced and rejected in R. v. Minhas at paragraphs 45-46. To quote Justice Goldstein in Minhas, the argument is akin to "heads I win, tails you lose".

[26] I find that there were ample grounds to make the ASD demand and that it was not improper for the officer to do so in the context of the circumstances he faced. There was the unexplained minor collision, the odour of alcohol, the denial of consumption, but no other indicia of impairment.

[27] The arresting officer had a reasonable suspicion that there was alcohol in the defendant's system. He could smell the odour of alcohol from her breath. She was the sole occupant of the car at the time the officer detected the odour. The officer was also aware of the other driver's suspicion that alcohol was involved before he arrived on scene. I accept the officer's evidence that in spite of his suspicion that Ms. Cooke was likely impaired that he did not immediately arrest the defendant for impaired driving because there was a possibility that he was wrong. That approach strikes me as cautious and ultimately more favourable to a driver suspected of drinking and driving. Objectively, I find, he needed more. The ASD provided a means to satisfy that aspect of the grounds he needed to arrest Ms. Cooke.

[28] Sergeant Strangways testified that had the defendant passed the ASD test, he would have dealt with her entirely differently. He would have released Ms. Cooke from the scene [9]. In the circumstances, the officer's decision in proceeding to the ASD demand was prudent and aimed at giving the defendant the benefit of the doubt. A different test result may actually have benefited Ms. Cooke. [10]

[29] The officer was cross-examined at length about the absence of the usual and obvious indicia of impairment. He readily acknowledged that typical indicia were absent. It was suggested to him that he ought to have considered other explanations for any indicia he did observe. In the circumstances, the officer cannot be criticized for continuing his investigation by way of an ASD demand. [11]

[30] I find that there was no obligation on the officer to immediately proceed to an arrest for impaired driving in the context of this investigation. He had his subjective suspicion and some objective grounds: the smell of alcohol and the denial of consumption. He was entitled in the circumstances to continue his investigation to ensure that he had both reasonable and probable grounds.

Were there Grounds for the Arrest for Impaired Driving?

[31] The subjective component requires the officer to have an honest belief the suspect committed the offence: See R. v. Bernshaw, but the officer's belief must be supported by objective facts: See R. v. Berlinski. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey.

[32] The officer testified that it was the sudden change in Ms. Cooke's demeanour that led him to believe that he had the proper grounds to make an arrest for impaired driving. The defendant went from being cooperative to talking over the officer, and talking to her father instead of paying attention to the direction the officer was giving her. She asked to have a cigarette before the test and then questioned the officer about why the roadside test had to be performed there and then. When he explained that she was required to comply with the demand at the roadside, she did not accept his reply and became argumentative. She made it clear that she did not want to do the test at the roadside.

[33] The officer described the defendant's behaviour as unusual. He testified that in his twenty eight years as an officer he had never had a suspect make the demands that the defendant did.

[34] It was suggested to the officer in cross-examination that he arrested the defendant because he was in a bad mood because this investigation came at the end of his shift. He denied the suggestion. The officer did admit that he did become frustrated with the defendant's behaviour.

[35] The officer's frustration with the defendant is apparent from the recording of the incident on the in-car camera. However, I do not find that his impatience with the defendant detracts from the officer's reasonable and probable grounds to make the arrest when he did.

[36] I find that the defendant's behaviour following the demand can fairly be described as petulant and insolent. She gave no indication that she would readily be compliant. Her responses were consistent with someone whose judgment is impaired.

[37] The officer's impatience with the defendant is not germane for a number of reasons. Firstly, once there is a valid demand, a suspect has an obligation to comply. It is not the job of the police to persuade, negotiate or provide legal advice in order to obtain compliance with a breath demand: R. v. Sures.

[38] On this point it is worth noting that is not open to an accused person to choose the time and conditions of the test before agreeing to comply with the demand. [16]

[39] Secondly, I accept the officer's evidence that it was the change in the defendant's demeanour that solidified or crystalized his grounds for an arrest for impaired driving. I find that the reason for the timing of the arrest was not merely the result of the officer's frustration with Ms. Cooke's behaviour, but as a result of the change in her comportment.

[40] In any event, the end result, I note, would not have been vastly different had the defendant immediately complied with the ASD demand. The result on the ASD would be the same: a "fail". Following that result, there would also have been an approved instrument demand, transport to the station, consultation with counsel, and opportunities to provide suitable samples of her breath into the approved instrument.

[41] In assessing the officer's testimony as to why and when he arrested the defendant for impaired driving, there was some independent support in the evidence. The civilian witness, Michael Coll, was the driver whose car was rear-ended. He testified that following the collision Ms. Cooke was teary, upset and profusely apologetic. [17] He asked her for her driver's licence, insurance etc. so that he could get on his way to work that evening. Ms. Cooke provided one of the documents he needed, but kept going back to her car periodically, and appeared to make a phone call. She returned on more than one occasion with the same document she had previously provided. Over the course of almost fifteen minutes she failed to give him the two or three documents he needed before he could leave the scene.

[42] He also described how when a tow truck operator passed by, both he and the defendant waived him off. However, when a second tow truck driver offered assistance, the defendant's mood changed suddenly.

[43] Mr. Coll recalled that after the second tow truck driver passed by he noticed "a significant change in Ms. Cooke's behaviour". She got very angry and used some vulgar language with the driver that was not warranted. The unexpected interaction with the second tow truck driver was his "first indication that alcohol might be involved". It had not occurred to him before that.

[44] Since Ms. Cooke failed to provide him with the necessary documents, Mr. Coll decided to call 911. At the end of the 911 call Ms. Cooke came close to him and he could smell alcohol. He relayed that information to the 911 caller as well as his suspicion that she may be impaired.

[45] As for his observations when the ASD demand was made, Mr. Coll testified that he recalled the officer repeating directions to Ms. Cooke and that it seemed that she was stepping away from the officer when he was trying to administer some sort of test. He recalled that Ms. Cooke's father told her to do as she was told and that the officer became impatient. These observations are consistent with what was captured on the in car video marked as exhibit #1.

[46] The reasonable and probable grounds standard is not an onerous one. See R. v. Wang. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threaten individual freedom: Censoni at para. 43

[47] Furthermore, there is no necessity that the defendant be in a state of extreme intoxication before the officer forms reasonable and probable grounds to arrest: R. v. Deighan at para. 1. The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol: R. v. Stellato (emphasis added).

[48] Finally, in the case of R. v. Bush, the Court of Appeal for Ontario found that the arresting officer in that case had reasonable and probable grounds in circumstances where he made the arrest within a minute of arriving on the scene without making inquiries into the accident or whether alcohol had been consumed. The only information he had was the smell of alcohol which he observed, unsteady balance, red glassy eyes and a dazed look, for which the defence suggested there were alternate explanations.

[49] The Court in Bush relying in part on R. v. Rhyason noted that "[c]onsumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case". (emphasis added)

[50] In Bush, the defence at trial made similar arguments as were made in this case: that the absence of some of the usual indicia of impairment and non-alcohol related explanations for those indicia that were observed detracted from the probative value of those observed. The trial judge rejected that approach and found that the grounds had to be reviewed collectively and not individually. The Court of Appeal upheld the trial judge's findings holding that:

The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on observed indicia and available information: R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para 2; Wang, at para 21

[51] The Court in Bush also emphasized that "[a] trained officer is entitled to draw inferences and make deductions drawing on experience. Sergeant Strangways testified that he has many years of experience both as an officer and a breath technician. He made the ASD demand, but then continued to observe the defendant as he prepared her for the test. His grounds evolved as he had more dealings with her. This is neither unusual nor improper. See R. v. Minhas, supra, at para. 68.

Did the Timing of the ASD (post arrest) Infringe the Defendant's s. 9 and s. 10(b) rights? If so, should the Evidence Relating to the Refuse Charge be Excluded?

[52] The defence submits that the approved instrument demand following the failed ASD test was not a lawful demand because of the intervening arrest for impaired driving. In essence the defence submits that Ms. Cooke was under arrest and detained and that the officer ought not to have administered the ASD, in spite of Ms. Cooke insistence that she be given the opportunity to take the test.

[53] The defence therefore seeks to exclude the evidence related to the charge of refusing to provide a breath sample.

[54] Both counsel made submissions as to whether the ASD result is "incriminating" evidence in the context of a Charter application.

[55] Counsel for Ms. Cooke relied on a number of cases including R. v. Minielley where the Yukon Territorial court found that "obtaining conscripted evidence from an individual through the use of an approved screening device, without providing right to counsel, is a breach of an individual's section 10(b) rights, and is justified only to the extent that the detention is minimally intrusive and necessary". (emphasis added) The court found that once the officer had formed reasonable and probable grounds to make the arrest for impaired driving, there was no longer any lawful basis for making the ASD demand. The court further found that the difficult question was determining the triggering moment to make the ASD demand. If there is lawful authority for the demand to elevate the officer's suspicion to reasonable and probable grounds, then once the grounds are independently made out, the suspicion threshold has passed, and the ASD demand should not be made.

[56] The sequence of events in this case may not have caused the trial judge in Minielley any difficulty. Sergeant Strangways testified that he had a suspicion and made the ASD demand. The defendant's response to the demand solidified his grounds and he then chose to abandon the ASD test. He only revisited it at the defendant's insistence. As well, the ASD demand was not the basis for the approved instrument demand, so in that sense, it is difficult to conclude that it was "incriminating" in the particular circumstances of this case.

[57] In any event, I note that in the more recent case of R. v. Dunphy, Justice Selkirk of the Superior Court of Justice was critical of the reasoning in Minielly.

[58] Another case relied on by counsel for Ms. Cooke is R. v. Diruggiero. This case is very distinguishable from the circumstances of this investigation. In the Diruggiero case, the charge was also refusing to provide a breath sample. There, the ASD demand followed an arrest for impaired driving and after the right to counsel was provided. The officer in Diruggiero made the demand to suit himself. He anticipated a refusal at the station (for the approved instrument) and thought would be more convenient to him not to have to go to the station. He preferred to get the refusal out of the way at the roadside.

[59] The Crown relied on a number of cases including R. v. Minhas, infra, a case in which Goldstein, J agreed with the conclusion of Selkirk, J. in R. v. Dunphy, supra. The court found that legal advice is engaged where the police can collect self-incriminatory evidence. Justice Goldstein reasoned that since the approved screening device cannot provide incriminating evidence, the right to counsel cannot be engaged.

[60] The purpose of the ASD is, as the name suggests, as a screening device in order to determine if a demand for breath samples into an approved instrument is warranted. A "fail" result has legal consequences in that it provides the investigating officer with grounds to make the approved instrument demand. See R. v. Einarson also R. v. Jennings.

[61] The result of an ASD is never admissible in support of an over 80 charge, nor is it admissible to support a charge of impaired driving. See R. v. Dunphy, supra, at para. 75

[62] The brief detention of a suspect pending the ASD allows an officer to administer the screening test without affording an accused Charter rights. This suspension of the right to counsel has been found to be a reasonable limit on the right: R. v. Orbanski; R. v. Elias

[63] As noted above, the circumstances of this case are different in that while the demand was made and the defendant detained pending the test, she did not immediately comply and there was an intervening arrest followed by an insistent plea from the defendant to allow the test to proceed. The defence impugns the result of the ASD. Without the result the defence submits there was no basis for the approved instrument demand and consequently no requirement to comply with an unlawful demand.

[64] However, in the usual circumstances of this case, it bears emphasizing that the officer had already made what the court has found to be a valid approved instrument demand after he arrested the defendant for impaired driving.

[65] I do not accept the defence submission that the mere fact that the officer repeated the approved instrument demand after the "fail" ASD result meant that the first demand was inoperative, and that the only remaining basis for the approved instrument demand was the result of the ASD. Not surprisingly, counsel was unable to find any authority in support for this submission.

[66] I have found that the arrest for impaired driving was lawful and founded on reasonable and probable grounds that crystallized after the ASD demand, but before the result was obtained. Therefore, the approved instrument demand made after the arrest was valid and remained valid throughout the investigation. The mere repetition of a demand does not negate the fact that there was already a lawful demand made prior to the ASD test.

[67] In the circumstances of this case, the result of the ASD was not a "game-changer". It did nothing to advance the Crown's case. In a typical case, it may be "incriminating" in that it provides grounds for an approved instrument demand. In the sequence of events in this case, the ASD did not provide those grounds. The grounds already existed after the arrest for impaired driving. As I have already noted, the approved instrument demand followed the ASD demand but it preceded the actual ASD test.

[68] The officer was placed in a no win-situation and I have little doubt that had the officer not acceded to Ms. Cooke's request his decision would have been subject to criticism by the defence. The suggestion would have been that the device was readily available and in light of the defendant's change of mind she should have been accommodated. After all, if she blew under the limit, there might not have been any need to transport her to the station to provide samples into the approved instrument demand. This potential benefit to the accused of taking the ASD test was the subject of comment in R. v. Minhas. [30]

[69] Rather than making a definitive conclusion on the issue of whether the result of an ASD is in fact "incriminating evidence" in every case, I will proceed on the assumption that there were Charter breaches arising from the sequence of events that unfolded in the investigation.

[70] For the reasons that follow, having considered and balanced the three prongs in R. v. Grant analysis, I find that in the unusual and particular circumstances of this case, that if there were any breaches, they were technical in nature and conclude that the evidence relating to the refuse charge ought not to be excluded.

Seriousness of the Breach

[71] Having regard to the following circumstances and findings, I find that this line of inquiry favours inclusion:

1. The initial ASD was a lawful demand;

2. The defendant was lawfully under arrest when the ASD was actually administered;

3. The defendant is the one who insisted on the opportunity to do the test. It was not administered at the officer's encouragement or insistence;

4. The officer had to make a quick decision and made a choice that appeared to him to be most favourable to the defendant. [32] He was not acting in bad faith in acceding to the defendant's plea. To the contrary, I accept his evidence that if she blew under the limit, he planned to release her from the scene. There would have been no need to take her to the station to provide samples of her breath into the approved instrument.

[72] Of all of the factors noted above, the single most significant and mitigating factor in this analysis is that it was the defendant who insisted on having the test. The timing of the test was not a step in the investigation that was "police-driven" or forced upon the defendant.

Impact of the Charter Breaches on the Defendant's Right to a Fair Trial

[73] I find that the effect of the timing of the ASD test had a minimal impact on the defendant's Charter rights. The defendant was already subject to a lawful demand to provide suitable samples into the approved instrument when she was arrested for impaired driving. That demand was valid and continued to be valid. Absent the ASD result, she was still under an obligation to comply with the approved instrument demand. [33]

[74] Ms. Cooke's right to counsel was delayed as a result of the test, but she did ultimately obtain legal advice through duty counsel prior to being taken into the breath room. Has she complied with the ASD when the demand was made, she would have been detained with her right to counsel suspended. The detention pending the ASD is not subject to Charter relief as it an acceptable limit one's s. 9 rights. See R. v. Orbanski, infra.

[75] I have specifically not addressed the reliability or probative value of the ASD result in this analysis, since the result is not admissible in evidence, nor was it the basis for the approved instrument demand, in this case. The videotape of the events in the breath room, however, is both reliable and probative of the charge of failing to provide a breath sample. The videotape is both admissible and potentially "incriminating" evidence on such a charge.

[76] Finally, under the prevailing (and binding) jurisprudence, it is accepted that the breath-testing process is "minimally intrusive or "relatively non-intrusive". See R. v. Stillman, R. v. Grant, infra, at para. 111, and R. v. Jennings, at paras. 29-31.

[77] Finally, I also accept and adopt Justice Ratushny's approach in R. v. Barr regarding the impact of multiple breaches resulting from the same police action when assessing the second Grant factor. Justice Ratushny referring to R. v. Mann, noted that cases where a motorist's stop, detention and arrest were illegal from the very beginning due to the officer's multiple mistakes (illegal stop, followed by ASD demand in the absence of grounds) should be distinguished from cases where there is a single "mistake". In this case, it cannot be said that there were multiple layers of breaches resulting from separate, improper police actions.

[78] In the result, having found the impact of any breaches to be relatively minimal, this line of inquiry also militates in favour of inclusion of the evidence relating to the refuse count.

Societal Interest in Adjudication on the Merits

[79] The societal interest in an adjudication on the merits in a case such as this are significant in light of the prevalence of drinking and driving. Another factor is that in this particular case there was a collision involving another driver. The third Grant factor favours admission.

Has the Crown Proven the Refusal Charge Beyond a Reasonable Doubt?

[80] The Crown must show that the accused was given plain instructions and an adequate opportunity to provide a sample, and that the circumstances prove the only reasonable inference is that the subsequent failure to provide a sample was intentional.

[81] The defence of reasonable excuse is engaged only after the Crown has proved a proper demand and a failure or refusal to comply. See R. v. Dolphin, 2004 MBQB 252, [2004] MJ No 433 at paras 30-38 (SCJ). The reasonable excuse defence is not a defence raised in this case.

[82] When I consider the defendant's conduct throughout the course of the evening, before and during the investigation, the only reasonable inference I can draw is that the failure to provide a suitable sample was intentional and not the result of any physical impediment.

[83] A review of the events before the investigation and how Ms. Cooke responded informs my conclusion that the failure to provide a suitable sample was intentional.

[84] Before the officer arrived on scene, Ms. Cooke appeared to be contrite and to cooperate with the other driver she had rear-ended. She was tearful and upset. The other driver's request for her information was not unusual or onerous. She gave him only one of the documents he asked for. She never outright refused to cooperate, but the documents never materialized.

[85] When the officer arrived on scene, the situation was relatively calm and she appeared to be cooperative. She was still tearful. The situation deteriorated when she was being given instructions on how to perform the test. She was inattentive. At first she interrupted the officer, then she became petulant and demanding in terms of when and where she might comply with the demand.

[86] After the arrest, she tried to persuade the officer that she was a "normal girl", and told the officer about her plans to become a police officer. While seated alone in the police vehicle she appeared to be speaking to the officer. She suggested that the result of the ASD was explained by the medication she is taking. Yet, in the booking hall and in the breath room she denied taking any medication.

[87] Then in the breath room in between the failed attempts she informed the breath technician that "this" was going to ruin her life. [38] These comments provide some insight into her mindset as it relates to her intention to comply with the demand. [39]

[88] The breath technician's evidence supports the finding that Ms. Cooke was not making genuine efforts to provide suitable samples of her breath. Office Clifford, testified that Ms. Cooke put no effort into the test, she was not taking deep breaths and was not following instructions. He could not see any breathing difficulties, nor any discomfort as the process unfolded. The defendant seemed incapable of following instructions. He could smell the odour of alcohol, and noted bloodshot watery eyes. He also testified that he could hear some slurring of words. He formed the opinion that she was impaired by alcohol.

[89] This was not Ms. Cooke's very first time being instructed as to how to provide a breath sample. Ms. Cooke had experience with the ASD earlier in the evening. She had had about a dozen attempts and one success earlier in the evening in the squad car. Sergeant Strangways instructed her then and in the background in the breath room he can be heard coaching the defendant. He told her to blow like she is blowing up a balloon. Yet, the defendant failed after numerous attempts with the machine timing out at least twice during the process.

[90] I took into account that the officer advised Ms. Cooke that the last attempt would be her last and that thereafter she asked for another opportunity. She did not appear to be making a genuine effort. This too, seems to follow a pattern of conduct that evening: her request for another chance even after failing a test. In the circumstances, I find that the officer was not required to continue to provide Ms. Cooke with more opportunities or attempt to provide a suitable sample.

[91] When all of the circumstances are considered in their totality, I find that Ms. Cooke failed to provide samples of her breath because she chose not to, not because she was physically incapable of doing so.

B. Relating to the Impaired Charge

i) Time of Driving

[92] The defence submits that there was no evidence that the officer knew what time the accident occurred. The Crown responds that the correct test is whether the officer had formed a belief that the defendant was driving within the previous three (3) hours, and whether that belief was reasonable.

[93] I find that on all of the evidence, it was reasonable for the officer to proceed on the understanding that the accident had happened within the previous three hours: See R. v. Hitchner, [1989] AJ No 106 (CA); R. v. Lol, [2012] AJ No 562 Q.B.

[94] The officer's undisputed testimony is that he received information over the radio about a collision at around 10:25 PM. He arrived on scene at 10:26 PM. When he arrived, he determined that Mr. Coll was person who called 911 about a suspected impaired driver. He satisfied himself that another male on scene was not a witness, but was in fact the defendant's father. He then spoke with the defendant who, by then, was seated in the driver's seat of her car and was crying. She acknowledged that she had been crying and that explained her red, watery eyes.

[95] In cross-examination, it was suggested to the officer that he did not have any information about the time of the accident. His response was: "not at that time". There was no follow up to the response, which on its face suggested that he did have more specific information about the time of the accident during the course of the investigation.

[96] In any event, given the officer's considerable experience, the place of the accident, the time of the 911 call relative to when the officer arrived on scene; the parties present, and the defendant's demeanour when he arrived, it was entirely reasonable for the officer to form the belief that the accident had occurred within the preceding three hours.

[97] As a matter of common sense and everyday experience, people do not call 911 many hours after a road accident. The fact that this accident happened at the intersection of two major streets in the city (Coxwell and O'Connor); that the parties involved were still on scene; that the defendant was still upset and advised she had been crying; are all factors that gave the officer a good indication as to when the accident occurred, that is: within three hours of his arrival on scene.

[98] This case is very different from those cases where precise time of the accident may not be inferred from the evidence and is critical to the outcome: See R. v. Huang, [2013] O.J. No 6008

Has the Crown Proven that the Defendant was Impaired Beyond a Reasonable Doubt?

[99] In addition to the unexplained accident and the persistent smell of alcohol (from roadside to the breath room), the defendant displayed unusual behaviour both at the roadside and at the station.

[100] What was absent in the evidence were the typical or usual indicia of gross impairment: slurred speech, difficulty with fine motor skills, difficulty walking, and etcetera. That said, the degree of impairment need not be great or overwhelming before the court can be satisfied that the elements of the offence have been made out beyond a reasonable doubt. See R. v. Stellato, infra.

[101] Both the civilian witness and the arresting officer testified that Ms. Cooke's conduct at the scene led them to suspect that she may be impaired.

[102] Mr. Coll testified that he did not initially smell alcohol on Ms. Cooke's breath, He testified that it was only after a sudden change in Ms. Cooke's behaviour that he considered the possibility that she was impaired. The change related to her verbal abuse of a tow truck driver who passed by inquiring if they needed assistance. Then, when he got closer to her which was around the time he called 911, he did smell alcohol on her breath. He relayed this information to the 911 dispatcher.

[103] Similarly, the officer testified that his suspicion that Ms. Cooke was impaired solidified when she her demeanour changed after the ASD arrived. She tried to negotiate where and when she would be willing to provide the roadside breath sample.

[104] Later on in the investigation the defendant repeatedly insisted that she was "a normal girl" who could be the officer's daughter while at the same time accusing the officer and Mr. Coll, the other driver, of colluding together to get her into trouble. Her behaviour on its face was very unusual. Her remarks were contradictory, baseless, and nonsensical.

[105] At the station, the defendant spoke over the booking officer and had to be told more than once to listen to instructions. She also had difficulty removing an earring when she was being booked. After a few attempts at removing the earring, she was instructed to leave it in her earlobe rather than struggle with it or hurt herself. Instead of following the reasonable and sensible instructions she was given, she insisted that it be removed because in her words, she did not want to be that girl with one earring. She asked the officer to "rip it" from her earlobe. I find this to be very odd, if not bizarre behaviour; a person in police custody about to be subjected to a breath test expressing concern about her appearance at a police station. Even more strange is that when Ms. Cooke grew frustrated with her own efforts, she invited a police officer to forcefully remove her earring from her ear. I find that her behaviour displayed impaired judgment, which in turn impairs the ability to operate a motor vehicle: See R. v. Tomlinson, [2006] A.J. No 1703 (P.C.) at para 62.

[106] Finally, I am mindful that where an accused chooses not to call any evidence, a trial judge may not speculate about other reasons or explanations for either the collision or defendant's conduct other than impairment: R. v. Bain, 1994 NSCA 84, [1994] NSJ No 194 (CA).

[107] Considering all of the circumstances, including the absence of the typical overt signs of impairment, the Crown has satisfied me beyond a reasonable doubt that Ms. Cooke's ability to operate a motor vehicle was impaired to some degree by alcohol and that her impairment played a role in the unexplained collision, and accounts for, in part or whole, her unusual behaviour throughout the evening.

Signed "Justice Bhabha"

Released: October 23rd 2018

Footnotes

[1] See Exhibit #1, video recording of the roadside arrest following the ASD demand.

[2] See Exhibit #1, video recording of the breath room. The testing took place over the course of more than ten (10) minutes with the machine "timing out" twice.

[3] This was based on his information that: a) she was the second driver involved in the rear-end collision, b) the suspicion of the other driver that alcohol was involved (as relayed to 911 dispatcher), his observation of the smell of alcohol from her breath in the face of her denial that she had consumed alcohol.

[4] The officer explained how the defendant became uncooperative and argumentative. He described it as a "hissy fit". It was this change in her behavior that solidified his grounds to make the arrest for impaired driving at this time.

[5] She in fact responded: "Yeah, sure". Her father who was present advised that he would assist in finding a lawyer. In fact, at the station she learned that her father was not able to assist with counsel and she spoke to duty counsel instead.

[6] Ms. Cooke repeatedly asked the officer if she could redo the ASD test at roadside. No second was ASD administered.

[7] Her father informed the officer that he was unable to arrange for private counsel for Ms. Cooke and suggested she access duty counsel.

[8] [2017] O.J. No. 1963

[9] This narrative makes sense and even more so on the defence theory that the officer was in a bad mood as the investigation happened at the end of his shift. If the ASD was favourable to Ms. Cooke, the officer could have ended the investigation at the roadside, instead of prolonging his shift.

[10] See R. v. Minhas, infra, at para 69

[11] See R. v. Bush, infra, at para 56, where Justice Goldstein noted that:" An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which are present and which are absent as the essential test.

[12], [1995] 1 S.C.R. 254 at para 51

[13], [2001]O.J. No. 377 (C.A.) at para 3

[14], [1990] 1 S.C.R. 241 at p. 250

[15] [2010] OJ No 1615 at para 39 (SCJ)

[16] See: R. v Dupré, [1995] JQ no 1155 (CS)

[17] He testified that she said: "this is my fault, I am so sorry, I will pay for everything".

[18] 2010 ONCA 435 at para. 17

[19] [2001] OJ No. 5189 (S.C.)

[20] [1999] O.J. No 2412 (C.A.)

[21] (1993), 12 O.R. (3d) 90 (C.A.)

[22] 2010 ONCA 554, [2010] O.J. No 3453 (C.A.)

[23] 2007 SCC 39

[24] [2009] Y.J. No. 3

[25] [2012] O.J. No. 3432 at paras. 79-83

[26] [1998] B.C.J. No 578

[27] (2004), 70 O.R. (3d) 286 (C.A.) at paras. 10-11

[28] 2018 ONCA 260, [2018] O.J. No. 1460 (C.A.) at paragraph 9

[29] 2005 SCC 37, [2005] 2 S.C.R. 3

[30] Supra, at para. 69

[31] 2009 SCC 32

[32] See R. v. Minhas at para. 69 and my observations at paragraph 68 above.

[33] The officer's failure to mention the impaired charge in the breath room did not undo, or negate the lawful demand the officer made following the arrest on the impaired charge.

[34], [1997] 1 S.C.R. 607

[35] 2018 ONCA 260, [2018] O.J. No. 1460 (Ont. C.A.)

[36] [2018] O.J. No. 2138 at paras. 56-60

[37] 2018 ONSC 1703

[38] The entire process in the breath room was captured on video and speaks for itself. See exhibit #1.

[39] The exchanges followed a caution and were not prompted by either the officer, or the breath technician.