ONTARIO COURT OF JUSTICE

CITATION: R. v. Campbell, 2019 ONCJ 152

DATE: 2019 03 21

COURT FILE No.: Hamilton 17-9169

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SHIRNEV CAMPBELL

Before Justice J.P.P. Fiorucci

Heard on August 29, 2018 and November 13, 2018

Reasons for Judgment released on March 21, 2019

C. Hopkins .......................................................................................... counsel for the Crown

M. Rombis .................................................. counsel for the defendant Shirnev Campbell

FIORUCCI J.:

INTRODUCTION

[1] A suspected impaired driver who refuses to comply with a demand made by a police officer to provide breath samples faces significant criminal consequences upon conviction. A lawful demand is an element of the refusal offence that the Crown must prove beyond a reasonable doubt. When an accused challenges the lawfulness of a breath demand, the words spoken by the police officer when making the demand and the timing of the demand can become issues. Mr. Campbell has raised both of these issues in his case.

[2] On August 16th, 2017, Mr. Campbell was charged with two offences: Impaired Operation or Care or Control of a Motor Vehicle and Failure or Refusal to comply with a breath demand made to him by a peace officer under section 254(3) of the Criminal Code. Mr. Campbell entered not guilty pleas to both charges.

[3] Mr. Campbell does not dispute that he was in care or control of a motor vehicle. He does not dispute that the police had the requisite grounds to make a demand that he provide breath samples to determine the concentration, if any, of alcohol in his blood. The arresting officer made a breath demand of Mr. Campbell at the time of his arrest for Impaired. Mr. Campbell was then transported to the police station. At the police station, the qualified breath technician also made a breath demand. Mr. Campbell outright refused to provide breath samples while in the breath room with the qualified breath technician.

[4] I must decide the following issues:

(1) Has the Crown proven beyond a reasonable doubt that the arresting officer made a valid section 254(3) breath demand of Mr. Campbell? At trial, the arresting officer testified that he made a breath demand. His testimony did not include the specific words he used to make the demand.

(2) If the Crown has failed to prove that the arresting officer made a valid demand, has the Crown proven beyond a reasonable doubt that Mr. Campbell failed or refused to comply with a lawful section 254(3) breath demand made by the qualified breath technician? Mr. Campbell submits that the breath technician’s demand was not lawful because it was not made as soon as practicable after the formulation of grounds for the demand.

(3) Has the Crown proven the Impaired Operation or Care or Control charge beyond a reasonable doubt?

ANALYSIS AND ISSUES

Refuse to Comply with Breath Demand

[5] The essential elements of the offence described in section 254(5) consist of a proper demand and a refusal or failure to comply with that demand.[^1] The Supreme Court of Canada recently stated that “[c]ulpability for the refusal offence is based on disobedience with lawful compulsion”.[^2] For Mr. Campbell to be found guilty, I must be satisfied beyond a reasonable doubt that he failed or refused to comply with a lawful demand made to him by a peace officer to provide breath samples into an approved instrument.

(a) The Evidence

[6] On August 16, 2017, the City of Hamilton Fire Department responded to a dispatch call regarding an unresponsive patient in the drive-thru of a McDonald’s restaurant. Ralph Kerekesch was one of the firefighters who responded to the call. Mr. Kerekesch and his crew arrived on scene at 9:22 p.m.. The firefighters found Mr. Campbell passed out in the driver’s seat of his car, which was in the drive-thru lane. Mr. Kerekesch testified about the conversation he had with Mr. Campbell and other observations he made.

[7] P.C. Dale Smith of the Hamilton Police Service arrived on scene at 9:25 p.m.. When P.C. Smith arrived, he saw firefighters assisting Mr. Campbell, who was now outside the vehicle. P.C. Smith received information from the firefighters. He then had a conversation with Mr. Campbell. From this conversation and other observations he made, P.C. Smith developed grounds to arrest Mr. Campbell for Impaired Care or Control of a Motor Vehicle. Mr. Campbell was arrested at 9:26 p.m..

[8] At 9:34 p.m., P.C. Smith read Mr. Campbell his rights to counsel, followed by the caution. According to P.C. Smith, Mr. Campbell said that he understood the rights to counsel and caution.

[9] With respect to the breath demand, the following is the relevant excerpt from P.C. Smith’s evidence-in-chief:

Crown: Okay. And did you give a breath demand?

P.C. Smith: I did, it was immediately after the caution. I gave him the breath demand, it’s number eight in our notebooks, on page two.

Crown: Okay. And at approximately what time was that?

P.C. Smith: It was immediately after. So, 21:35 is when I cautioned him. So, it could’ve been 21:35, 21:36, it was right after the caution.

Crown: And again, did he say anything in response to the breath demand?

P.C. Smith: He said yes to the accompaniment, “Will you accompany me? Yes.”

[10] P.C. Smith did not provide any further evidence about the wording of the breath demand he made of Mr. Campbell shortly after his arrest.

[11] During cross-examination, Defence counsel asked P.C. Smith whether he had to repeat the breath demand to Mr. Campbell. P.C. Smith replied, “I believe I said it once and then… it was just a simple yes”. At 9:50 p.m., P.C. Smith began transporting Mr. Campbell to the police station.

[12] At the police station, Mr. Campbell spoke with duty counsel on the telephone from 10:39 p.m. to 10:46 p.m.. According to P.C. Smith, after this call with duty counsel, Mr. Campbell went straight into the breath room with the qualified breath technician, P.C. Wayne Patterson. P.C Smith testified that he provided the breath technician with his “probable grounds” when he delivered Mr. Campbell to the breath room.

[13] However, P.C. Patterson testified that P.C. Smith provided him with his grounds for arresting Mr. Campbell much earlier, at 10:07 p.m.. According to P.C. Patterson, P.C. Smith communicated these grounds to him personally; “face to face”. In his testimony at trial, P.C. Patterson recited the grounds that P.C. Smith communicated to him, and confirmed that, in his opinion, those grounds were sufficient to make a breath demand.

[14] P.C. Patterson testified that he received Mr. Campbell into his custody from P.C. Smith shortly before 10:48 p.m.. The breath room video was made an exhibit at the trial. The timestamp on the video shows Mr. Campbell walking into the breath room at 22:45:48. The video does not show any discussion between P.C. Smith and P.C. Patterson about the grounds for arrest. P.C. Smith did not remain in the breath room after transferring custody of Mr. Campbell to P.C. Patterson.

[15] At 10:46 p.m., the following exchange occurs in the breath room:

P.C. Patterson: Do you understand that the officer has demanded samples of your breath?

Mr. Campbell: I do.

P.C. Patterson: Will you take the breath test?

Mr. Campbell: Ah…no.

[16] At trial, P.C. Patterson testified about the above exchange:

P.C. Patterson: …I also then asked if he understood that the officer demanded samples of his breath and he responded that he did. As well, when I asked him if he would take the breath test, he responded no.

Crown: And what was the wording of that request for the breath test?

P.C. Patterson: Oh, I – at this point I had not issued him the breath test demand myself.

[17] After Mr. Campbell stated that he would not take the breath test, P.C. Patterson explained to him that there is a criminal charge for refusing to comply with a breath demand and that the charge results in the same consequences as blowing over the legal limit.

[18] P.C. Patterson went on to testify that he issued Mr. Campbell his own breath demand:

P.C. Patterson: …Yes. And then at 10:48 I issued him the breath demand myself.

[19] The breath room video confirms that, at 10:48 p.m., P.C. Patterson issued the breath demand to Mr. Campbell in the following words:

P.C. Patterson: So what I'm going to ….also demand that you provide suitable samples of your breath into an approved instrument to determine ……sorry I'll start that one again… I demand that you provide suitable samples of your breath into an approved instrument to enable an analysis to be made to determine the concentration if any of alcohol in your blood and that you accompany me now for this purpose. Okay…….

[20] After he made this demand, P.C. Patterson went on to explain to Mr. Campbell what was required of him to provide a breath sample, such as a long, steady breath. He advised Mr. Campbell that he was providing this explanation on “the off chance” that Mr. Campbell decided to provide samples. Mr. Campbell continued to refuse to provide breath samples. He offered various reasons for refusing, including that he felt his rights had been violated, that he was not impaired, and that he did not think it was the “right time or place” for him to blow.

(b) Has the Crown Proven that the Arresting Officer made a Valid Section 254(3) Breath Demand?

[21] The Crown submits that the evidence in this case establishes that two valid demands were made of Mr. Campbell; one by the arresting officer, P.C. Smith, and one by the breath technician, P.C. Patterson.

[22] I will deal first with the issue of whether the Crown has established that P.C. Smith made a valid demand. The Crown submits that even in the absence of evidence of the exact words P.C. Smith used to make the breath demand, the surrounding circumstances establish that he made the section 254(3) demand, and that Mr. Campbell understood that demand.

[23] Mr. Campbell submits that the Crown has failed to establish that he was subjected to a lawful demand by P.C. Smith to provide breath samples into an approved instrument. He points to the lack of evidence that breath demand “number eight” on “page two” of P.C. Smith’s notebook is the section 254(3) demand.

[24] The Crown relies on R. v. Ghebretatiyos,[^3] an Ontario Summary Conviction Appeal decision. In Ghebretatiyos, the appellant was convicted of refusing to provide a sample of his breath into an approved roadside screening device (ASD). The single issue on the appeal was whether the investigating officer had issued a lawful ASD demand.

[25] At trial, the officer testified that he had “read” the breath demand to the appellant. However, when asked in his evidence in-chief to repeat the words of the demand, the officer stated: “I don’t have the actual card…I could recite it, but I don’t actually have the card with me”. He went on to describe the text of the demand he read to the appellant as being “a standardized breath sample demand” on the notice card issued to each police officer.

[26] The officer also testified that the demand “was understood” by Mr. Ghebretatiyos, and that after he demonstrated and explained how the ASD worked, he asked: “Do you understand?” to which he received the reply: “Yes”. Ultimately, the appellant stated that he was not going to blow into the ASD.

[27] In Ghebretatiyos, the appellant submitted that there was a lack of evidence of the exact wording used by the officer to make the demand, and that the officer’s testimony that he made “a standardized breath sample demand” failed to distinguish between an ASD test at the roadside and an intoxilyzer or breathalyser test at the police station.

[28] Hill J. upheld Mr. Ghebretatiyos’ conviction and found that in the circumstances of the case, it was open to the trial judge, who had the advantage of seeing and hearing the witnesses, to accept the officer’s evidence that:

(1) A demand was made of the appellant for a breath sample.

(2) The appellant understood the demand.

(3) The production of the Alco-Test device, and its demonstrated use by the officer, made it apparent that the breath sample was required by way of a roadside test.

(4) At 3:45 a.m., the appellant stated that he was not going to blow into the ASD.

(5) When asked if there was any reason why he didn’t want to blow into the device other than not wanting to, the appellant replied: “No”.[^4]

[29] In Ghebretatiyos, the appellant had testified at trial. Hill J. noted that “[t]he real import of the appellant's evidence is that he well understood the legal requirement to comply with the demand to provide a breath sample into the device in the cruiser, not at a detachment location, but elected to frustrate the exercise because of his anger over being stopped and what he considered to be an unsatisfactory explanation for the vehicle stop”.[^5]

[30] In arriving at his decision that Mr. Ghebretatiyos’ case was not an appropriate one for appellate intervention, Hill J. cited the authorities of R. v. Ackerman,[^6] R. v. Flegel,[^7] and R. v. Humphrey.[^8] These cases each dealt with the issue of the wording of the breath demand. It is worthwhile to review the principles from these cases, and the contexts in which they arose.

[31] In R. v. Ackerman, the accused had been arrested for impaired driving. The police officer demanded a sample of his breath. The officer read to the accused section 235 of Criminal Code, which set out the officer’s power to demand breath samples to determine the concentration of alcohol in a person’s blood [now section 254(3)]. After reading the section, the police officer said to the accused: “I now demand you submit to a Breathalyzer”, to which the accused replied, “you can demand all you want- you are not going to get it”.

[32] Mr. Ackerman was acquitted at trial. The trial judge ruled that in order for the offence of refuse to be made out, the police officer had to incorporate the section of the Criminal Code in his demand. The trial judge stated:

I do not feel until he has incorporated that section in his demand, and I do not think the mere fact that he read the section to him advising him what the wording of the Criminal Code is, amounts to such, that it is an offence to refuse.

[33] The Ackerman case went to the Saskatchewan Court of Appeal as a stated case. The trial judge posed the following question in the stated case:

In dismissing the case, I held, in effect, that a demand under Section 235 of the Criminal Code must incorporate all of the conditions precedent to a demand recited in Section 235 and the reason for the demand as recited in Section 235, as in more particular, is set forth in the Judgment annexed hereto. Did I err in so holding?

[34] The Saskatchewan Court of Appeal held that the trial judge had erred and set aside the acquittal, on the basis that no particular words are necessary to make a breath sample demand:

In my opinion, no particular words are necessary to make a demand under this section. The demand, if made in popular language or in the words of the section, or in any other words that are such that convey to the person that the demand is made pursuant to the section, is a lawful demand. In determining whether or not the words used were such as to convey to the person the nature of the demand consideration can properly be given to the surrounding circumstances (emphasis added).[^9]

[35] R. v. Flegel was an Over 80 case. Mr. Flegel was convicted at trial. He appealed to the Saskatchewan Court of Queen’s Bench also by way of a stated case.[^10] One of the issues on the appeal was “whether or not a demand was expressly made of the accused to take the breath test”.[^11] The appellate Justice, MacPherson J. of the Saskatchewan Court of Queen’s Bench, stated that the facts were somewhat unclear: “I do not have all of the facts or a transcript”. However, MacPherson J. held that the accused understood that he was required to take the test and that the section does not require any specific form of demand:

…I infer that the accused did not testify. It is clear, however, that the learned Judge held that the accused understood that he was required to take the test. The section does not require any specific form of demand. I must hold that any peremptory request would satisfy the section. It need have no exact words or form. It would be sufficient if the word or words plus actions of the peace officer impressed upon the accused that he, the accused, was required by the peace officer to take the test. The learned Judge held that there was a demand implied by the act or words (or both) of the policeman in authority. He was within his jurisdiction in this finding of fact (emphasis added).[^12]

[36] In my view, a close reading of R. v. Flegel reveals that the actual words used by the officer to make the demand were not in the appeal record before MacPherson J.. MacPherson J. simply found that the trial judge had the jurisdiction to assess whatever words were used, and the acts of the police officer, to determine whether they “impressed upon the accused that he…was required by the peace officer to take the test”.[^13]

[37] The Saskatchewan Court of Appeal in R. v. Flegel confirmed this finding:

….While the words used by Constable Glenney in making the demand are not set forth in the stated case, the learned Judge of the Magistrates' Court found that he did make the demand….

….. It was the right of the learned trial Judge to determine whether the demand was made, and he could do so from whatever was said viewed in the light of the surrounding circumstances (emphasis added).[^14]

[38] The Ontario Court of Appeal case of R. v. Humphrey was also an Over 80 case. At trial, the police officer testified that the accused was given “a demand in regards to a breathalyzer test”. The trial judge held that the failure of the Crown to adduce the actual wording of the demand for a breath sample rendered inadmissible the certificate of analysis of the proportion of alcohol in the blood of the accused which the Crown sought to tender into evidence.

[39] The Ontario of Appeal held that the evidence of the police officer that “a demand in regards to a breathalyzer test” was given to the accused “was some evidence that he made a demand on the appellant, pursuant to s. 235(1) of the Criminal Code”.[^15] The Court of Appeal, therefore, found that the trial judge erred when he held that the failure of the Crown to adduce the actual wording the police officer used to make the demand for a breath sample rendered inadmissible the certificate of analysis.[^16]

[40] After reviewing the cases of Ackerman, Flegel and Humphrey, Hill J. in R. v. Ghebretatiyos made the following observation:

This flexible yet functional approach, focusing on whether the vehicle driver understood he or she was required to give a sample of breath, is consistent with that jurisprudence recommending a review of the entirety of the circumstances in deciding whether a breathalyser technician has acted pursuant to a lawful demand.[^17]

[41] There is jurisprudence that supports Mr. Campbell’s position that the words used to make the demand take on greater evidentiary significance in a refusal case, where the Crown must prove a proper demand as an element of the offence.[^18]

[42] In R. v. Hergott,[^19] the accused was charged with refusal to provide breath samples pursuant to a section 254(3) demand. The evidence of the demand made by the arresting officer consisted of the following:

Question: What happens next?

Answer: At 01:30, I read the breath demand.

Question: And is that the breath demand from your book?

Answer: Yes, sir.

[43] Hambly, J., sitting as a Summary Conviction Appeal Court, held that the trial judge had erred in finding that the arresting officer made a valid demand at 1:30 a.m.. Hambly J. stated that "there was no evidence of the breath demand that was made by [the arresting officer] to the appellant beyond it being the breath demand from his notebook”.[^20] This “complete absence of evidence of the contents of the breath demand beyond it being the demand in the officer's notebook" resulted in Hambly J. finding that no lawful section 254(3) demand was made by the arresting officer.

[44] In R. v. Riley,[^21] the accused was convicted of refusing to comply with a section 235(1) [now section 254(3)] breathalyzer demand. He appealed his conviction to the County Court. Carter Co. Ct. J. found it necessary to deal with only one ground of appeal: whether the trial judge erred in finding that the demand made by the police officer was a sufficient demand under section 235 of the Criminal Code.

[45] The facts in Riley, as they pertain to the demand made by the arresting officer, are similar to the facts in Mr. Campbell’s case. The police officer testified that he “made a demand for a breath test” of Mr. Riley at the scene of the traffic stop. Mr. Riley stated that “he would not provide such a test”. The police officer took Mr. Riley back to the police detachment. The police officer testified that, at the detachment, “a demand was again made by myself and again the subject refused to provide the sample.” The following exchange then occurred during the officer’s testimony:

Q. Naturally you made the demand on him for the breath test?"

A. Yes.

Q. What were the words of demand?

A. (no answer)

Q. Did you put it in general words or read something to him? What did you do?"

A. There is special wording, which I had at that time. Unfortunate, I haven't got it right at this particular time, but it was the demand that was given to us, a proper demand.

Q. But you haven't got it today. You read something to him, but you can't tell me what it was you read. You can't tell me today how you put that demand to him?

A. No, unfortunately, I cannot.

Q. You read off some sort of a card?

A. Yes.

Q. You haven’t got the card here today?

A. No, unfortunately, I haven’t.

[46] Carter Co. Ct. J. allowed Mr. Riley’s appeal “on the basis that the evidence failed in law to constitute evidence of a demand pursuant to Section 235(1) of the Criminal Code”.[^22] More particularly, Carter Co. Ct. J. noted that the words used by the officer were not before the Court. The officer could not say how he put the demand to the appellant but only that he had read it off a card, which was not before the Court. The best evidence given by the officer was “I made a demand for a breath test””.

[47] In Riley, Carter Co. Ct. J. highlighted the difference between refusal cases and Over 80 cases, noting that in Over 80 cases the demand must be established merely as a condition of the admissibility of the certificate of analysis. Carter Co. Ct. J. cited the Humphrey case as authority for this proposition.

[48] It is important to understand the history of the Humphrey case, which was also relied on by Hill J. in Ghebretatiyos. As stated above, the issue to be decided in Humphrey was the admissibility of a certificate of analysis in an impaired driving case, where the only evidence as to the nature of the demand was “the accused was given a demand in regards to a Breathalyzer test”. The trial Judge ruled that since there was no evidence of the actual words of the demand, the certificate of analysis was inadmissible and he acquitted Mr. Humphrey.

[49] Mr. Humphrey’s acquittal was overturned on appeal by Weatherstone J. who held that the certificate of analysis was admissible, and in doing so noted the distinction between the refusal offence and the Over 80 offence:

In my opinion, there is a great deal of difference in cases where the change (sic) is one of failure to comply with the demand, which is an offence under section 235, and cases such as this where the fact of the demand having been made is merely a fact which must be established as a condition of admissibility of a certificate under section 237. In the first case, it is obviously important to show the precise words of the demand in order for the Judge to determine whether or not the demand was sufficient under section 235 because that is the very substance of the offence (emphasis added).[^23]

[50] The Ontario Court of Appeal dismissed Mr. Humphrey’s appeal from the decision of Weatherstone J. and held that the Crown’s failure to adduce the actual wording of the demand did not render the certificate of analysis inadmissible. However, as Carter Co. Ct. J. noted in Riley, the Ontario Court of Appeal in Humphrey did not refer to the distinction made by Weatherstone J. between failure to comply charges and cases dealing with the admissibility of the certificate of analysis.[^24] That is, Carter Co. Ct. J. observed that the Ontario Court of Appeal did not specifically disapprove of Weatherstone J.’s statement that it is important to show the precise words of the demand when the charge is refusing to comply with the demand.[^25]

[51] Carter Co. Ct. J. then went on to distinguish the words used to describe the demand in Humphrey from those used to describe the demand made of Mr. Riley:

While the distinction may be a narrow one, I believe that the use of the words "breathalyzer test" in the demand made in Regina v Humphrey, as they have become commonly understood as a method of detecting the proportion of alcohol in the blood, might well support the conclusion that the demand was made pursuant to section 235(1) of the Criminal Code; the words "I made a demand for a breath test" in the appeal before me do not point unequivocally to Section 235(1) of the Code, as they might also point to a demand under Section 234.1(1) where a "breath test" is given by an "approved road side screening device” (emphasis added).[^26]

[52] Therefore, Carter Co. Ct. J. found that the evidence pertaining to the demand was insufficient to satisfy the Court beyond a reasonable doubt that the breathalyzer demand was made of Mr. Riley. The officer’s testimony that he “made a demand for a breath test” might also refer to an ASD breath test.

[53] This concern about police officers reading the wrong breath demand is a valid one. There are many examples of cases in which police officers have read the wrong breath demand, resulting in acquittals for the refusal offence or exclusion of the certificate of analysis in Over 80 cases.[^27]

[54] In the context of the refusal offence, reading the wrong demand leads to a finding that the demand is unlawful, placing no obligation on the accused to comply with the demand. In R. v. Egbeobawaye, the accused was charged with failing or refusing to comply with an ASD breath demand, but the officer mistakenly read the accused the approved instrument demand. Henschel J. held that the accused had no obligation to comply with the demand, and “[t]he fact that the accused subjectively knew that the officer wanted him to provide a sample of breath into the approved screening device he was holding cannot change the fact that a "proper" demand was not made”.[^28] The Crown’s Summary Conviction appeal of Mr. Egbeobawaye’s acquittal was dismissed.[^29]

[55] In the Over 80 context, R. v. Waisanen[^30] was a case in which the police officer mistakenly read the ASD breath demand to the accused instead of the approved instrument demand. The trial judge concluded that the accused’s breath samples were taken pursuant to an unlawful demand, and that without a lawful section 254(3) demand, the Crown was not entitled to benefit from the “evidentiary assistance” provided by the statutory presumption in section 258(1)(c) of the Criminal Code. The trial judge excluded from evidence the certificate of analysis and Mr. Waisanen was acquitted. The Crown’s Summary Conviction Appeal of the Over 80 acquittal was dismissed.

[56] R. v. Omelan[^31] was an Over 80 case with essentially identical facts as Waisanen. There was no dispute that the arresting officer mistakenly gave the ASD demand, pursuant to section 254(2), rather than the approved instrument demand, pursuant to section 254(3). Notwithstanding the mistaken demand, Mr. Omelan gave evidence and essentially admitted that he knew he had to go to the police station to provide samples of his breath.[^32] Furthermore, although the qualified breath technician did not make his own demand in the breath room, “he carefully explained in some detail what the tests involved and what Mr. Omelan was required to do”.[^33]

[57] Relying on Ghebretatiyos, the Crown submitted that the reading of the wrong demand was a technical error that resulted in no prejudice or unfairness to Mr. Omelan. Nakatsuru J. followed Waisanen and found that the ASD demand was an unlawful demand.[^34] In doing so, he stated “I cannot see how the accused's subjective interpretation of the demand given by P.C. Williams can turn an approved screening device demand into a legal demand made pursuant to s. 254(3)(a)(i)”.[^35]

[58] I find that the Crown has failed to prove beyond a reasonable doubt that P.C. Smith made a lawful section 254(3) demand of Mr. Campbell. The following are my reasons for this finding.

[59] The extent of P.C. Smith’s evidence on the issue is “I gave him the breath demand, it’s number eight in our notebooks, on page two”. P.C. Smith testified that in response to the breath demand Mr. Campbell “said yes to the accompaniment, “Will you accompany me? Yes””.

[60] As in the cases of Hergott and Riley, there is a complete absence of evidence regarding the contents of the demand beyond it being a demand from P.C. Smith’s notebook. There was no evidence led that demand “number eight” on “page two” of the officer’s notebook was the section 254(3) demand. P.C. Smith’s evidence does not point unequivocally to the fact that he made the section 254(3) demand. As in Riley, his testimony might also point to a section 254(2) ASD demand. On this evidence, I am unable to find beyond a reasonable doubt that P.C. Smith made the correct demand of Mr. Campbell.

[61] Furthermore, P.C. Smith did not testify that Mr. Campbell understood the demand made of him. Rather, his evidence was simply that Mr. Campbell agreed to accompany him. Unlike Ghebretatiyos, there is no evidence regarding the interaction between Mr. Campbell and P.C. Smith at the time the “breath demand” was made at the roadside, beyond Mr. Campbell agreeing to accompany the officer. Accordingly, this is not a case in which I can apply the “flexible yet functional approach” to the evidence to determine whether, at the time P.C. Smith made the “breath demand”, Mr. Campbell knew that he was required to give samples of his breath.

[62] The Crown submits that Mr. Campbell must have understood the demand as being the section 254(3) demand because he agreed to accompany the officer, and would not have had to do so if P.C. Smith had made the ASD demand instead. I find the Crown’s position to be unsustainable for two reasons. Firstly, the “subtleties of the differences”[^36] between an ASD demand and a section 254(3) demand likely would not have been known to Mr. Campbell at the time the demand was made of him.[^37] Furthermore, an ASD demand pursuant to section 254(2) can require the suspect “if necessary, to accompany the peace officer” for the purpose of complying with the demand.

[63] On this issue, I have also considered the breath room video which depicts the conversation between P.C. Patterson and Mr. Campbell.[^38] Early on in the video, P.C. Patterson asked Mr. Campbell: “Do you understand that the officer has demanded samples of your breath?” to which Mr. Campbell replied, “I do”. After Mr. Campbell told P.C. Patterson that he would not take the breath test, P.C. Patterson continued to explain the process to him, including the fact that there is a criminal charge for refusing to comply with a breath demand.

[64] The Crown might point to this interaction between Mr. Campbell and P.C. Patterson as evidence that Mr. Campbell clearly understood that he was required to give breath samples. However, Mr. Campbell’s statement in the breath room that he understands P.C. Smith demanded samples of his breath does not fill the evidentiary void that exists regarding the content of P.C. Smith’s “breath demand”.

[65] If the “breath demand” P.C. Smith made was an ASD demand, Mr. Campbell’s subjective interpretation of the demand cannot turn it into a lawful section 254(3) breath demand.[^39] In these circumstances, without sufficient evidence regarding the words P.C. Smith used to make the demand, the surrounding circumstances do not establish beyond a reasonable doubt that a valid section 254(3) demand was made. Having found that the Crown has not proven a valid demand by P.C. Smith, I must now consider the validity of the breath demand made by the breath technician, P.C. Patterson.

(c) Has the Crown Proven that the Breath Technician made a Valid Section 254(3) Breath Demand?

[66] Mr. Campbell had an obligation to comply with P.C. Patterson's demand for a breath sample only if it was a proper or lawful demand. Under section 254(3), a demand for a breath sample will be a proper demand only if it is made “as soon as practicable" after the police officer has determined that there are 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.[^40]

[67] P.C. Patterson testified that, at 10:07 p.m., P.C. Smith provided him with his grounds for the arrest of Mr. Campbell personally, in a “face-to-face” meeting. I accept P.C. Patterson’s evidence that he received the grounds from P.C. Smith at 10:07 p.m.. P.C. Smith’s evidence that he provided his grounds to the breath technician at 10:46 p.m., when he delivered Mr. Campbell to the breath room, is inconsistent with the breath room video which shows no such discussion at that time.[^41] There is no dispute that P.C. Patterson made his section 254(3) breath demand at 10:48 p.m.. This was 41 minutes after he received the grounds.

[68] In his trial testimony, P.C. Patterson recited the grounds that he received from P.C. Smith at 10:07 p.m.. In argument, Mr. Campbell’s counsel did not dispute that the items of information P.C. Patterson received from P.C. Smith were sufficient for P.C. Patterson to form his own grounds to make a section 254(3) breath demand. Mr. Campbell limited his argument regarding the invalidity of the breath technician’s demand to the fact that it was made 41 minutes after formulation of his grounds.

[69] The Crown relies on R. v. Guenter[^42] to support its position that P.C. Patterson’s demand was valid. In Guenter, the arresting officer forgot to make a demand at the scene, but the qualified breath technician made a prompt demand once informed by the arresting officer of her grounds for arresting Mr. Guenter.

[70] The Ontario Court of Appeal held that the section 254(3) requirement that the breath demand be made “as soon as practicable” can be met by any peace officer who makes a prompt demand after forming reasonable grounds. In Guenter, the “as soon as practicable” requirement was met by the breath technician’s demand, even though it was made approximately an hour and a half after the arrest, because the breath technician made the demand promptly after forming his own grounds for believing that Mr. Guenter had committed a drinking and driving offence.

[71] I find that R. v. Guenter is distinguishable from the facts in Mr. Campbell’s case. The words “as soon as practicable” have been interpreted to mean “within a reasonably prompt time”.[^43] No evidence was tendered by the Crown to account for the 41 minute delay between the time P.C. Patterson formulated his grounds and the time he made the breath demand. Accordingly, I cannot be satisfied that the conduct of the police in this interval was reasonable.[^44]

[72] In all probability, P.C. Patterson believed that he was acting on a valid “continuing demand” made by P.C. Smith. If that was the case, in my view, it would not be a justifiable explanation for the 41 minute delay. The fact that the Crown subsequently failed to prove the validity of P.C. Smith’s demand cannot relieve the Crown of its obligation to prove that P.C. Patterson’s demand was made “as soon as practicable”. The Crown need only prove one valid demand and that demand must be made by a peace officer “as soon as practicable” after he or she forms the requisite reasonable grounds.[^45] P.C. Patterson’s demand does not meet that criteria.

[73] I find that the Crown has not proven beyond a reasonable doubt that P.C. Patterson made a valid section 254(3) demand of Mr. Campbell.

[74] As the Crown has not proven that Mr. Campbell was given a valid section 254(3) breath demand, he is found not guilty of the charge of Failure or Refusal to Comply with a Breath Demand made under that section.

Impaired Care or Control

[75] What the Crown is required to establish beyond a reasonable doubt is some degree of impairment to operate or have the care or control of a motor vehicle, from slight to great.[^46] Slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether the impairment impacts on perception or field of vision, reaction or response time, judgment, or regard for the rules of the road.[^47] A court “must not fail to recognize the fine but critical distinction between ‘slight impairment’ generally, and “slight impairment of one’s ability to operate a motor vehicle’”.[^48]

[76] A trial judge must consider the cumulative effect of all of the evidence as it relates to the issue of whether a driver’s ability to operate a motor vehicle was impaired by alcohol.[^49] A trial judge is not to approach the question of impairment as involving a scorecard noting which indicia are present and which are absent.[^50] The totality of the circumstances must be considered.[^51]

[77] It is not improper for a trial court to consider evidence that an accused consumed alcohol prior to driving as a factor relevant to the determination of whether an impaired operation charge has been proven.[^52] The consumption of alcohol must be a contributing factor to the driver’s impairment.[^53]

[78] The fact that an accused does not appear to be as intoxicated at the police station as civilian and police witnesses describe him or her at the roadside is not necessarily inconsistent with a finding that his or her ability to drive was impaired by the consumption of alcohol when he or she was driving.[^54] Observable indicia of impairment are not static.[^55]

[79] A non-expert may give opinion evidence about impairment, and the evidence of a police officer is not entitled to any special consideration.[^56]

[80] I find that the following pieces of evidence, viewed in combination, establish beyond a reasonable doubt that Mr. Campell’s ability to operate or have the care or control of a motor vehicle was impaired by alcohol:

(1) Mr. Kerekesch, a firefighter, arrived on scene at 9:22 p.m.. He observed Mr. Campbell seated in the driver’s seat of his car. The car was in the drive-thru lane of the McDonald’s restaurant; the car was at the first window where orders are placed. Mr. Campbell was passed out and unresponsive. Mr. Kerekesch testified that Mr. Campbell “was slouched and slumped over with his head down….slumped towards the wheel towards the passenger side”;

(2) When Mr. Kerekesch arrived with the other firefighters, Mr. Campbell’s vehicle was running and was in drive. Mr. Kerekesch asked one of the firefighters to chock the wheels of Mr. Campbell’s car to prevent it from moving forward;[^57]

(3) Mr. Kerekesch stood by the driver’s side door and knocked on the window to awaken Mr. Campbell. Mr. Campbell had a look of surprise when he awoke;

(4) Mr. Kerekesch had a conversation with Mr. Campbell. At trial, when asked whether he observed anything about Mr. Campbell’s speech or demeanour, Mr. Kerekesch replied “yeah, he was very slow to react to any questions that I asked him, and he did have a slur in his speech”. In cross-examination, Defence counsel confronted Mr. Kerekesch, asking him to recall exactly what words Mr. Campbell had difficulties pronouncing. Although Mr. Kerekesch could not recall particular words, he was able to conclude that Mr. Campbell’s speech was slurred. Mr. Kerekesch testified that “[i]t was how he was speaking. It wasn’t the particular words it was how he was speaking”. I accept Mr. Kerekesch’s evidence regarding his observations of Mr. Campbell’s slurred speech, and find that it is independently corroborated by portions of the breath room video which depicts the interaction between Mr. Campbell and P.C. Patterson;[^58]

(5) Based on his observations, Mr. Kerekesch believed Mr. Campbell to be impaired. Mr. Kerekesch asked Mr. Campbell if he had been drinking. Mr. Campbell replied that he had “a few beers”;[^59]

(6) When Mr. Kerekesch asked Mr. Campbell to put the vehicle in park “he fumbled around to do that”. Mr. Kerekesch explained that Mr. Campbell struggled to find the shifter and put the vehicle into park, even though the illumination in the area was good;

(7) Although Mr. Campbell initially got out of the car, when he noticed the police arriving on scene, he tried to get back into the car. Mr. Kerekesch observed Mr. Campbell to be stumbling and when he attempted to get back into his vehicle “he mis-stepped off of the curb and fell to the ground, sort of wedged between the drive-thru and his vehicle”;

(8) When P.C. Smith arrived on scene at 9:25 p.m., he saw firefighters assisting Mr. Campbell. According to Mr. Kerekesch, police officers and firefighters helped Mr. Campbell get to his feet;

(9) P.C. Smith described Mr. Campbell as unsteady when he was being assisted up to his feet. P.C. Smith acknowledged during cross-examination that he did not note Mr. Campbell as being unsteady during the pat down search, or later at the police station. Nonetheless, P.C. Smith’s brief observation of unsteadiness at the scene is one piece of evidence to consider in the assessment of impairment;[^60]

(10) When he was back on his feet, Mr. Campbell started walking away from his car. P.C. Smith observed him to be disoriented;

(11) P.C. Smith smelled the odour of alcohol on Mr. Campbell’s breath. He testified that after he arrested Mr. Campbell and placed him in the enclosed area of the cruiser “that’s when you can really smell alcohol as well so…and I did smell it from his person”. P.C. Smith described the smell of alcohol to be on the medium to high side, and stated that he rolled down the window of the cruiser to air it out;

(12) P.C. Patterson, the breath technician, noted that Mr. Campbell spoke with a moderate slur. Again, I find that his evidence in this regard is independently corroborated by portions of the breath room video which depicts the interaction between Mr. Campbell and P.C. Patterson;

(13) P.C. Patterson testified that he observed Mr. Campbell to have a strong odour of alcohol on his breath.[^61]

CONCLUSION

[81] I find Mr. Campbell not guilty of the charge of Failure or Refusal to Comply with a Breath Demand made by a peace officer under section 254(3) of the Criminal Code.

[82] I find Mr. Campbell guilty of Impaired Operation or Care or Control, contrary to section 253(1)(a) of the Criminal Code.

Released: March 21, 2019

Signed: Justice J.P.P. Fiorucci

[^1]: R. v. Moser, 1992 2839 (ON CA), [1992] O.J. No. 602 (Ont. C.A.), at para. 33. [^2]: R. v. Alex, 2017 SCC 37, [2017] S.C.J. No. 37 (S.C.C.), at para. 49. [^3]: [2000] O.J. No. 4983 (S.C.J.). [^4]: R. v. Ghebretatiyos, supra, at para. 21. [^5]: R. v. Ghebretatiyos, supra, at para. 22. [^6]: 1972 1300 (SK CA), [1972] S.J. No. 275 (Sask. C.A.). [^7]: [1972] S.J. No. 276 (Sask. C.A.). [^8]: [1977] O.J. No. 1146 (Ont. C.A.). [^9]: R. v. Ackerman, supra, at para. 7. [^10]: R. v. Flegel, [1971] S.J. No. 155 (Sask. Q.B.). [^11]: R. v. Flegel, [1971] S.J. No. 155 (Sask. Q.B.), at para. 10. [^12]: R. v. Flegel, [1971] S.J. No. 155 (Sask. Q.B.), at para. 10. [^13]: R. v. Flegel, [1971] S.J. No. 155 (Sask. Q.B.), at para. 10. [^14]: R. v. Flegel, [1972] S.J. No. 276 (Sask. C.A.), at paras. 2 and 8. [^15]: R. v. Humphrey, supra, at para. 2. [^16]: R. v. Humphrey, supra, at para. 3. [^17]: R. v. Ghebretatiyos, supra, at para. 20. [^18]: See R. v. Tash, 2008 1541 (ON SC), [2008] O.J. No. 200 (Ont. S.C.J.), at para. 27; R. v. Kachmarski, [2014] S.J. No. 81 (Sask. Q.B.), at para. 36. [^19]: [1999] O.J. No. 5314 (Ont. S.C.J.). [^20]: R. v. Hergott, supra, at para. 12. [^21]: [1978] O.J. No. 266 (Ont. Co. Ct.). [^22]: R. v. Riley, supra, at para. 12. [^23]: R. v. Riley, supra, at para. 8. [^24]: R. v. Riley, supra, at para. 9. [^25]: I recognize, of course, that it would not have been necessary for the Court of Appeal to address that issue since it was not the issue to be decided on the appeal. [^26]: R. v. Riley, supra, at para. 10. [^27]: See for example: R. v. Egbeobawaye, [2018] O.J. No. 2371 (Ont. C.J.), aff’d [2019] O.J. No. 973 (Ont. S.C.J.); R. v. Calder, [2018] O.J. No. 7018 (Ont. C.J.); R. v. Waisanen, [2015] O.J. No. 4835 (Ont. S.C.J.). [^28]: R. v. Egbeobawaye, [2018] O.J. No. 2371 (Ont. C.J.), at para. 28. [^29]: R. v. Egbeobawaye, [2019] O.J. No. 973 (Ont. S.C.J.). [^30]: R. v. Waisanen, supra. [^31]: R. v. Omelan, [2017] O.J. No. 1289 (Ont. C.J.). [^32]: R. v. Omelan, supra, at para. 23. [^33]: R. v. Omelan, supra, at para. 23. [^34]: R. v. Omelan, supra, at paras. 25 and 49. In Omelan, the Crown did not tender the certificate of analysis. The Crown called a toxicologist who gave opinion evidence about Mr. Omelan’s blood alcohol concentration at the time of driving. As the Crown did not rely on the statutory presumption, Nakatsuru J.’s finding that breath samples were seized pursuant to an unlawful demand amounted to a section 8 Charter violation. After conducting the section 24(2) analysis, Nakatsuru J. admitted the breath readings and Mr. Omelan was found guilty of Over 80. [^35]: R. v. Omelan, supra, at para. 25. [^36]: R. v. Calder, supra, at para. 22. [^37]: See also R. v. Egbeobawaye, [2018] O.J. No. 2371 (Ont. C.J.), at para. 19. [^38]: On consent, the breath room video was made an exhibit at the trial. Although there was no explicit concession by Mr. Campbell that any statements made to P.C. Patterson were voluntary and admissible, Mr. Campbell’s counsel relied on various utterances in support of his position on the Impaired charge. Mr. Campbell’s counsel did not oppose the admissibility of less helpful utterances, nor would it have been realistic to do so: R. v. Bleta, [2012] O.J. No. 944, at para. 44. Furthermore, for the Refusal charge, any utterances leading up to Mr. Campbell’s words of refusal are arguably evidence of the actus reus: R. v. Bleta, supra, at paras. 50-51. [^39]: R. v. Omelan, supra, at para. 25. [^40]: Section 254(3); R. v. Guenter, [2016] O.J. No. 3857 (Ont. C.A.); R. v. Squires, 2002 44982 (ON CA), [2002] O.J. No. 2314 (Ont. C.A.), at para. 24. [^41]: I find that P.C. Smith was simply mistaken on this point, and that there was obviously no deliberate attempt to mislead the Court. [^42]: R. v. Guenter, supra. [^43]: R. v. Squires, supra, at para. 31; R. v. Phillips, 1988 198 (ON CA), [1988] O.J. No. 415 (Ont. C.A.); R. v. Purdon, [1989] A.J. No. 1030 (C.A.). [^44]: R. v. Phillips, supra; R. v. Purdon, supra. [^45]: R. v. Guenter, supra, at para. 90. [^46]: R. v. Grant, 2014 ONSC 1479, [2014] O.J. No. 1143 (S.C.J.), at para. 50; R. v. Andrews, 1996 ABCA 23, [1996] A.J. No. 8 (Alta. C.A.), at para. 23; R. v. Stellato, 1994 94 (SCC), [1994] S.C.J. No. 51 (S.C.C.), at para. 14; R. v. Michitsch, [2004] O.J. No. 1296 (S.C.J.). [^47]: R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.), at para. 47; R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (Ont. C.A.), at para. 47; R. v. Grant, supra, at para. 50. [^48]: R. v. Andrews, supra, at para. 16. [^49]: R. v. Bush, supra, at paras. 54-58; R. v. Reeves, [2018] O.J. No. 4431 (S.C.J.), at para. 76. [^50]: R. v. Bush, supra, at paras. 54-58; R. v. Reeves, supra, at para. 76. [^51]: R. v. Reeves, supra, at para. 76. [^52]: R. v. Cabral, [1998] O.J. No. 2170 (S.C.J.), at para. 35. [^53]: R. v. Bartello, [1997] O.J. No. 2226 (Ont. C.A.), at para. 2. [^54]: R. v. Grant, supra, at para. 53. [^55]: R. v. Grant, supra, at para. 53. [^56]: R. v. Graat, 1982 33 (SCC), [1982] S.C.J. No. 102 (S.C.C.). [^57]: Mr. Kerekesch explained that chocks are triangular wedges used to keep vehicles from rolling forward. [^58]: I reviewed the breath room video. I find that at various portions of his interaction with the breath technician, Mr. Campbell slurs his words including: *when he states that he feels like his rights have been violated (commencing at 22:50:20); *when he states “I feel like McDonald’s were both getting…I wasn’t impaired at all whatsoever” (commencing at 22:51:46); *when he says “no if ands or buts about it” (commencing at 22:53:39); *when P.C. Patterson asks him what time it is and he responds “it is …approximately 11:20”. [^59]: Mr. Kerekesch is a firefighter who responded to a medical call regarding an unresponsive patient. No one raised the issue of whether the Crown was required to prove beyond a reasonable doubt that any statements Mr. Campbell made to Mr. Kerekesch were voluntary. On the evidence, I find that Mr. Kerekesch was not a person in authority. In any event, I attribute limited weight to Mr. Campbell’s admission to having consumed a “few beers”. It merely offers further corroboration for the other evidence of alcohol consumption that was introduced through P.C. Smith and P.C. Patterson. [^60]: R. v. Grant, supra, at para. 49. [^61]: At the end of the breath room video, after Mr. Campbell left the room, P.C. Patterson turned to the camera and stated, “the odour of alcohol is quite strong in this room, quite strong”.