R. v. Murray

Ontario Court of Justice

Date: 2019-01-14

Central East Region

Parties

Between:

Her Majesty the Queen

— And —

Tanya Murray

Court Information

Before: Justice J. Bliss

Heard on: November 5 and November 14, 2018

Reasons for Judgment released: January 14, 2019

Counsel:

• I. Kandola, counsel for the Crown
• H. Spence, counsel for the defendant Tanya Murray

Judgment

BLISS J.:

Facts

[1] On August 15, 2017, Tanya Murray was involved in a single motor vehicle accident at the 8th line south of county road 21 in Essa Township. Her vehicle left the road and went into a ditch before striking a hydro pole and coming to a stop. After the police became involved, Ms. Murray was arrested, taken to the police detachment, and requested to provide a sample of her breath to enable an analysis be made of the concentration of alcohol, if any, in her blood. By the end of her stay, she found herself charged with impaired driving and refusing to provide a breath sample. Ms. Murray challenges the grounds for her arrest as violating her rights under s.8 and s.9 of the Charter, and argues that the demand that flowed from that "unreasonable" arrest that she provide a sample of her breath to a qualified technician was unlawful, and so her refusal to comply with the demand was not a refusal to comply with a lawful demand.

[2] Abdul Kamara was driving with his family ahead of Tanya Murray's vehicle on the 8th line when the accident happened. From his rear view mirror he saw her vehicle 100 to 150 metres behind him veer off the roadway. He turned around and saw that the vehicle had ended up in a ditch against a hydro pole with downed electrical wires. There was a woman and a dog beside the vehicle. No-one else was around the car. Mr. Kamara approached the woman to check to see if she was alright. Her dog was running loose and she was expressing a concern about getting the dog on a leash so Mr. Kamara told her that he would call 911. He was about 30' from her. When the dog, described as rather big, started to approach Mr. Kamara, he got back in his car.

[3] From his brief interaction with Ms. Murray, he thought something "was off" with the woman. She wasn't 100% steady on her feet, her movement was not quite right, and she looked, to him, like people do when they have been drinking. Within a minute or two of speaking with her, he watched as a man driving a Dodge Caravan arrived on the scene, picked up the woman and the dog, and drove away. The vehicle, and the woman, then returned about five or ten minutes later without the dog.

[4] When the woman returned to the scene, Mr. Kamara testified that she still seemed shaky. He saw her being arrested by police. When she went past him, he testified that she was saying things that didn't make sense and was slurring her words a little bit. She was also crying. Mr. Kamara admitted that it was possible that her crying affected her speech. After she was arrested, he said that she got more hysterical.

[5] Kimberley Fox, a paramedic with Simcoe County Paramedic Services, had received the radio call for the single motor vehicle collision at 5:19 p.m.. She arrived at 5:34 p.m. and saw an unoccupied SUV with extensive damage and the airbags deployed. The vehicle had gone over a very large embankment and hit a hydro pole causing the pole to split in half and rest on the vehicle. She was told by a firefighter that the occupant had left the scene. Tanya Murray had, in fact, convinced a neighbour acquaintance of her's, who had heard the crash and drove to the scene, to drive her and her dog back to her house. Ms. Murray then returned to the scene where she and the neighbor, Roy Marchildon, were approached by Ms. Fox. Ms. Fox identified another person in court as the male who had accompanied Ms. Murray back to the scene. I accept that Ms. Fox was wrong about that.

[6] Ms. Fox was concerned about the driver's medical condition and wanted to assess her for any injuries. She asked Ms. Murray if she was the driver, and Ms. Murray told her that she had been driving and that her son was in the backseat and had put his hands over her eyes obstructing her vision and causing her to crash. Ms. Fox could not detect any odour of alcohol but asked Ms. Murray if she had consumed any alcohol or drugs. Ms. Murray's response was that she had a glass of wine two days ago and "that can stay in your system, I know because I'm a doctor, but not really…"

[7] Ms. Fox explained to Ms. Murray that she was concerned that she needed to be assessed. Ms. Murray refused. While Ms. Fox conceded that she should have had Ms. Murray sign that she was not consenting to being assessed, she did not. Ms. Fox felt that both Ms. Murray and Mr. Marchildon were uncooperative and Mr. Marchildon said "[he] want[ed] nothing to do with this" and left when police arrived. Kimberley Fox described Tanya Murray as unsteady, her speech was slurred, and what she said did not really make sense. While that could have been the result of a head injury, Ms. Murray thwarted that diagnosis by refusing to be assessed and there was no evidence before me that Ms. Murray had suffered a head injury of any kind. Ms. Fox was only with Ms. Murray for a couple of minutes. During that time she did not smell alcohol and was of the view that Tanya Murray was possibly intoxicated but could not say for sure. The paramedic then watched as police took over.

[8] Roy Marchildon was the only witness called by the defence. He explained that he is a neighbor of Ms. Murray's and had met her a few times walking her dog past his house. He described her as usually very talkative and difficult to get a word in. On the day of the accident he remembered seeing her walk by his house with her dog. They spoke briefly and he remembered getting water for her dog. In his view, she seemed "normal". In cross-examination he was questioned about the time he saw her. He thought it was possibly around 11 a.m. and they spoke for about ten or fifteen minutes.

[9] He testified that about 40 or 50 minutes after seeing her, he was working outside his house when all of a sudden he heard a noise. His mother, who he cares for, called out to him that the power had gone off, so he got into his vehicle and drove to see what happened. He saw that a vehicle had hit a hydro pole and recalled people milling about the accident scene. According to Mr. Marchildon, there were six or seven people at the scene. All of them were white. While Mr. Marchildon's observations at the scene were challenged because he did not see Abdul Kamara, a black man, I note that Mr. Kamara testified that at some point he got back into his vehicle because of the dog.

[10] Mr. Marchildon's evidence was that Ms. Murray came up to him and said her dog ran out. He said she had marks on her head, was bleeding from her ear, and was worried about her dog. No first responders were at the scene yet. Ms. Murray wanted to get her dog home and speak with her son to let him know she was okay. Mr. Marchildon testified that he asked two people at the scene if it would be okay to drive her home. He then drove her and her dog to her house about twelve houses away and then returned about two or three minutes later with her. When they returned, they went towards an ambulance attendant, clearly Kimberley Fox. At that point, he said he had to go home to take care of his mother who he had left alone, and drove off. He denied telling the paramedic that he wanted nothing to do with this. He thought the ambulance would take his neighbor to the hospital.

[11] Mr. Marchildon testified that he did not see anything in Ms. Murray that raised concerns about her having been drinking. If there had been anything to suggest she had been drinking, he would not have got involved. He testified that he was right beside her, holding her, and at one point hugged her, and she did not smell of alcohol and her eyes were not glossy or red.

[12] At 1720 hrs, Cst. Fuglsang responded to the radio call. Ambulance, firetrucks and neighbours were already on the scene by the time he arrived at 1740 hrs to find a vehicle in the ditch on the west side of the road, and Tanya Murray standing in the middle of the road away from the vehicle. The roadway leading to the accident scene was clear and flat with hydro poles well off the roadway in the ditch. While there is no dispute that Ms. Murray's vehicle struck a hydro pole, he could not recall seeing that, and could not describe the state of the vehicle.

[13] Cst. Robbins described the vehicle, a Lincoln, on the west side of the road approximately 5 to 10 metres off the road facing south east and a hydro pole directly in front of it. The vehicle had heavy damage to the front end and hydro lines were laying on top of the vehicle. He called hydro to turn the power off before approaching the vehicle. No alcohol was found in the car. About 12' from the vehicle was an empty can of Smash that had been crushed and a full can of Twisted Tea alcoholic beverage 15' southwest of the vehicle. As well a full can of "Girls Night Out" was in the same area as the Twisted Tea and accidently stood on and by an attending firefighter. No further information was provided about the origin of these cans of alcohol.

[14] Cst. Fuglsang spoke with Kimberley Fox who pointed out Ms. Murray and that she might be impaired. He made no note of the basis for her opinion. Having received a radio call for a single motor vehicle in the ditch, and then speaking with the paramedic, Cst. Fuglsang's mindset, as he approached the driver, was that she could be impaired.

[15] The officer approached Ms. Murray and asked her if she had been driving and if she was injured. She told him she was not injured. He saw no evidence of any injury. He assumed, given the many firefighters and EMS workers on scene, that a medical assessment had been conducted. He then cautioned Ms. Murray that she was being investigated for impaired operation and that whatever she said could be used against her. She indicated that she understood. He then asked her what happened. Ms. Murray told Cst. Fuglsang that she was on her way home from Wasaga Beach with her dog in her car when it jumped in her face causing her to lose control and crash her vehicle.

[16] Not seeing a dog, he asked her where it went, and she said it had gone home. He also asked her if she was injured and if anyone else was in the car and she replied "No" to both questions. Ms. Murray was standing in the middle of the road, which by now had been blocked by other first responders' vehicles. As they spoke, Cst. Fuglsang noticed that Ms. Murray was not wearing shoes, she was unsteady on her feet, shuffling from her left to her right, and keeping her arms out to keep her balance. He agreed in cross-examination that someone standing barefoot on a hot roadway might move from one foot to another.

[17] During their conversation, Ms. Murray kept walking towards Cst. Fuglsang, as if she was unable to gauge personal space, forcing the officer to retreat or else they would touch. He noticed that her eyes were bloodshot and glossy and she had difficulty focusing on him. When she spoke, her speech was slurred and was incoherent as what she said was not responsive to his questions and unrelated to the collision, but was about her past and issues she had had with police officers. He had asked her what happened. She initially responded about the collision, but then veered off on a range of topics ranging from claiming to have been a Playboy centrefold model to having been sexually assaulted in the past by police officers to her concern over Cst. Fuglsang being male.

[18] Cst. Gilbert walked towards Cst. Fuglsang as he was talking with Ms. Murray. He too observed her to be unsteady on her feet, swaying from side to side and intermittently having to take a step to the side as if to maintain her balance. He did not note whether she was wearing shoes or not, but conceded that could have affected how she was standing. Besides noticing that Ms. Murray's speech was slurred, he testified that her face was flush and she had bloodshot eyes. He also detected a faint odour of alcohol coming from her breath. Like Cst. Fuglsang, he did not see any injuries. Before she was placed under arrest, Cst. Gilbert testified that Ms. Murray accused both he and Cst. Fuglsang of "raping [her]". It was Cst. Gilbert's view that the signs of impairment were quite apparent and it was not hard to reach that conclusion.

[19] At 5:45 p.m., Cst. Fuglsang believed he had the requisite reasonable grounds to believe that Ms. Murray was intoxicated by alcohol or drug, although he thought more likely by alcohol, as she was behaving the way he had seen other impaired individuals in his then almost two years as a police officer, stumbling and slurring her speech. He placed her under arrest for impaired driving.

[20] When Cst. Fuglsang placed Ms. Murray under arrest and put handcuffs on her, she was, naturally, upset. He let her know that she would be taken to the police cruiser and then to the police detachment for further testing. He escorted her to the police cruiser. When she complained that the handcuffs were too tight, he stopped to loosen them. As they walked closer to the cruiser, she began crying and telling the officer, "you can't do this to me, it was my dog" and then yelling "help me" presumably to the people at the scene, and then "you're raping me". She screamed continuously even when placed in the cruiser.

[21] The officer testified that he wanted to use an approved screening device because he was initially not sure whether she was under the influence of alcohol or drugs. He had not detected an odour of alcohol but because, he testified, suffers from seasonal allergies, he sometimes cannot smell well. Cst. Fuglsang thought that he could test her with an ASD and rule out drugs, but since she was becoming increasingly hysterical and incoherent, he did not think it would be good for her and did not feel right having her take the test inside the cruiser. His evidence on this point was that he knew he needed to have a reasonable suspicion to have her provide a sample into an ASD and should have given her an ASD demand first, but as the situation developed before him he did feel he could have her take the test. When he arrested her, his belief was now that she was impaired by alcohol which had a time sensitivity, and he did not want to cause any delay by having to wait for a Drug Recognition Expert to attend at the scene. He also knew that a breath technician was already preparing the instrument at the detachment.

[22] Ms. Murray was read her rights to counsel and caution from the police issued card. Ms. Murray's response was to continue scream that Cst. Fuglsang was harming and raping her. As he recounted, she kept screaming "rape" over and over again. In the cruiser she would move and bounce around, scream "rape", then breathe in and out and scream "rape" again. The officer's evidence was that he read the breath demand to her, but could tell she was not listening. He had read the rights to counsel, caution and breath demand, he testified, around 1749 hours. It had taken him about a minute to do so, and he then left the scene with Ms. Murray shortly after 1750 hrs.

[23] The drive from the scene to the detachment was about 10 minutes. During the drive, Cst. Fuglsang testified that Ms. Murray was continuously screaming, even when he was using the police radio, that "'bikers would come for [him]', '[she] hope[d] he was proud of himself'", and also kicked the glass divider between them. Cst. Fuglsang said that when Ms. Murray was in the cruiser he was able to detect an odour of alcohol that he could not, or had not, detected when they were outside.

[24] Cst. Cosgrove was at the OPP detachment and had overheard a female screaming hysterically over the radio while Cst. Fuglsang was calling in. He asked a female officer, Cst. Martin, to assist with trying to calm Ms. Murray when she arrived at the sallyport. When the police cruiser arrived at the detachment with Ms. Murray in the rear, Cst. Cosgrove approached the cruiser. He noted an odour of alcohol coming from inside the vehicle. Ms. Murray was still screaming. When Cst. Martin spoke with Ms. Murray, she seemed to immediately calm down, but continued to call Cst. Fuglsang names and accuse him of raping her. Ms. Murray was crying, her nose was running, and Cst. Fuglsang said she was difficult to understand and her speech was slurred. Cst. Martin walked Ms. Murray into the detachment where Cst. Cosgrove began the booking process. He also became the target of her rape allegations and accusations.

[25] Cst. Fuglsang testified that he had told Ms. Murray she was at the detachment for breath testing. He explained that he wanted to alleviate any concerns she might have by explaining where she was. It was only at the station that the officer was able to confirm Ms. Murray's name. Prior to that he had obtained a name, likely from the vehicle registration, but Ms. Murray herself did not want to provide him with her name.

[26] During the booking process, Ms. Murray was asked if she wanted to speak to a lawyer as she had not answered in the vehicle. Her response was that a lawyer will have his job. He asked if she had a lawyer or a preferred lawyer she wanted him to contact. Not getting an answer, the officer took it upon himself to contact duty counsel for her. That was at 1813 hrs. Duty counsel called back at 1816 hrs and Ms. Murray was placed in a private room. When the call got disconnected at 1819 hrs, they were reconnected at 1820 hrs and Ms. Murray remained in the room until the phone call concluded. She made no complaints about the quality of the legal advice she had received.

[27] While she was speaking with duty counsel, Cst. Fuglsang provided his grounds to the breath technician, Cst. Katie Miller. Those grounds, able to be heard on the video recording of the breath room, were that he arrived at 1740 to find Ms. Murray outside the vehicle. A neighbour pointed her out to him as having been driving so he immediately approached her to ask if she was driving. She told him that she had been and explained how the accident happened. In doing so, he was able to notice her slurred speech and bloodshot eyes. She had trouble focussing and she would repeatedly encroach on his personal space and force him to retreat. The officer told Cst. Miller that Ms. Murray was placed under arrest at 1745 and during the transport back to the station he detected an odour of alcohol coming from her breath. He had not provided her with an ASD or had her perform any physical co-ordination tests but was able to see her stumbling. At 1750, he advised Cst. Miller that, he provided her rights to counsel but was met with her screaming and using vulgarity. When asked about the breath demand, he told Cst. Miller that he provided her with a breath demand when they got back to the detachment and she wanted to speak to a lawyer first. When Ms. Murray entered the breath room, Cst. Fuglsang remained briefly. He maintained that he continued to detect Ms. Murray's speech being slurred while they were in the breath room.

[28] Cst. Miller testified that she assisted with lodging Ms. Murray when she arrived at the detachment. Ms. Murray had requested a female officer and both she and Cst. Martin were understanding and compassionate while remaining professional. The presence of female officers calmed the situation considerably and they were able to obtain proper identification and contact information. Cst. Miller testified that Ms. Murray was unsteady on her feet when the handcuffs were removed, had watery eyes, smelled of alcohol and her speech was slow with a slight slur at times. She made no conclusion about impairment but was of the view that Ms. Murray had been drinking. Cst. Miller had prior dealings with Ms. Murray and was able to use the rapport they had to comfort her as she was clearly upset and emotional. That prior contact was when she and her partner, a male officer, were parked in a police cruiser at the side of the road. Ms. Murray had approached both of them and spoke of past events including having been raped. She was calm when doing so.

[29] Much was made of Cst. Fuglsang's notetaking. His note of Tanya Murray's speech being slurred and having bloodshot eyes was a late entry after he had provided his grounds to the breath technician. It was suggested that his observations or notes of Ms. Murray having difficulty focusing and glossy eyes or confused speech might have been because of a head injury and that an injured person might not know they are injured. While quite true, there is no evidence of a head injury. Cst. Fuglsang also noted having made the breath demand as a late entry. The officer explained that he had made the breath demand at the roadside but Ms. Murray had not responded because she was screaming. The breath room video though has the officer saying he had provided a caution at 1741, which he explained as being the initial caution about the impaired driving investigation, when he arrived on the scene. When Cst. Miller asked about the breath demand the video clearly show Cst. Fuglsang hesitate and then respond that he did so at the detachment. He made no note of having made the demand at the station, even though he said that he had done just that on the breath room video. Cst. Miller actually crossed out the breath demand in the alcohol influence report to reflect that she did not get a time when the demand was made. After Cst. Fuglsang left the breath room, he did not have any further involvement with Ms. Murray except for preparing her release documents.

[30] Cst. Miller had been called upon, as a qualified breath technician, to administer the test to Tanya Murray. In the video recording of Tanya Murray's interaction in the breath room she rambled about the dog jumping on her face, her son wanting to get into the army, her son having assaulted her, her son's father tried to choke her, her son having had a breakdown, her prior contact with Cst. Miller and her partner, an admission that she had a couple of drinks that night, and other topics and comments that, while connected to Ms. Murray, were unconnected to why she was in the breath room and unresponsive to any question. She was also very difficult to keep on task and was very emotional and crying at times. After saying she would do what was going to be asked of her, her seeming cooperation took a 180 degree turn. In short order, she refused to provide a sample, said that she would do so in 24 hrs, as that is what her lawyer, duty counsel, told her she could do, and when told she had to provide a sample now or go to jail, refused to provide a sample and told the breath technician that she did not care, that she had alcohol in her system, and to put her in jail. Ms. Murray then stood up and left the room, apparently to use the washroom.

[31] No issue is taken with Cst. Miller's qualifications nor the instrument itself, nor that Ms. Murray refused to provide a sample of her breath. Ms. Murray's presence at the detachment was video recorded and Cst Miller's interaction with Ms. Murray in the breath room were video and audio recorded.

[32] At about 7:44 p.m., it was reported over the police airwaves that Ms. Murray was having a panic or anxiety attack and EMS was attending. Cst. Cosgrove's evidence was that her behaviour continued to be erratic, littered with claims of abuse by police and rape allegations against her husband. She would not listen to explanations about documents being provided to her and would cry then become quiet and then scream before being quiet again.

[33] As she left with medical staff, she was handed her release paperwork as she would be under the care of EMS and would not be hospital until safe to do so.

[34] None of the police were aware of any past trauma or mental health issues that might have been at play, but all, it must be said, treated her with understanding and professionalism and sought to comfort her even in the face of her very public and completely false attacks on the male police officers who dealt with her.

The Charter Challenges

[35] The defence submits that the police did not have reasonable and probable grounds to believe Tanya Murray had been operating her motor vehicle while her ability to do so was impaired by the consumption of alcohol or a drug and so her arrest for impaired operation and her subsequent detention violated her rights under ss. 8 and 9 of the Charter. Ms. Murray further submits that the arresting officer did not make a lawful demand that she provide a sample of her breath into an approved instrument and so her refusal to provide a sample of her breath to the qualified technician did not make out a criminal offence; in essence, her refusal was lawfully justified.

Were Cst. Fuglsang's Grounds to Arrest Tanya Murray Reasonable?

[36] Cst. Fuglsang testified he had the requisite grounds to arrest Tanya Murray for impaired driving. For his arrest of Ms. Murray to withstand Charter scrutiny, his grounds for arrest must have been reasonable. The question of what constitutes reasonable grounds in drinking and driving cases was addressed by the Court of Appeal in R. v. Bush, 2010 ONCA 554.

[37] Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief that the suspect committed the offence (R. v. Bernshaw, [1995] 1 S.C.R. 254 at para. 51) and that belief must be supported by objective facts (R. v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3). 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, [1990] 1 S.C.R. 241 at p. 250; Bush, supra, para 38).

[38] In assessing the reasonableness of the grounds, it must be remembered that "there is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest: R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1. Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), aff'd, [1994] 2 S.C.R. 478 [and] slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47." (Bush, supra, para 47)

[39] The standard of reasonable grounds requires an objectively reasonable belief. It is not a high threshold, and does not require proof on a balance of probabilities or even a prima facie case (R. v. Debot, [1989] 2 S.C.R. 1140). The test that must be met, therefore, 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: see R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), aff'd, [1994] 2 S.C.R. 478; Moneno-Baches and Wang, at para. 17. (Bush, para 48)

[40] As Durno J.A. (ad hoc) wrote for the Court in Bush, "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 ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed; Censoni at para. 46. 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 the 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. (Bush, supra 56)

[41] A consideration of the totality of the circumstances invariably includes the fact of an accident; however, that the accident could have caused some of the indicia observed and relied upon by the officer when they could also have been caused by the consumption of alcohol, does not mean that the officer has to totally eliminate those indicia from consideration: R. v. Duris, 2009 ONCA 740 at para. 2. They have to be considered along with all the other indicia in light of the fact there may be another explanation. (Bush, supra, para 57)

[42] The important fact is not whether the officer's belief was accurate but whether it was reasonable at the time of the arrest. That the conclusion was drawn from hearsay, incomplete sources, or contained assumptions will not result in its rejection based on facts that emerge later. What must be assessed are the facts as understood by the peace officer when the belief was formed: R. v. Musurichan, [1990] A.J. No. 418 (C.A.) (Bush, supra, para 66).

[43] Ms. Murray argues that the officer's very brief interaction with her before placing her under arrest undermines the reasonableness of his grounds. While the time from contact to arrest, some three or four minutes, could allow such an inference, in this case, Ms. Murray's aberrant behaviour enabled that belief to be formed in that time. As the Court observed in Bush, "that the belief was formed in less than one minute is not determinative. That an opinion of impairment of the ability to operate a motor vehicle can be made in under a minute is neither surprising nor unusual." (para 70)

[44] It is clear that Cst. Fuglsang subjectively believed that Tanya Murray's ability to operate a motor vehicle was impaired by the consumption of alcohol or a drug. A reasonable person placed in Cst. Fuglsang's position would come to exactly the same conclusion that there were indeed reasonable and probable grounds for Tanya Murray's arrest. I say that for the following reasons: Ms. Murray had been pointed out to Cst. Fuglsang as the driver and that she might be impaired. She had been driving her vehicle on a clear, dry day and had veered into the ditch striking a hydro pole. While she had provided an explanation for why the accident happened, that did not mean that any further investigation stopped. Her interaction with the officer was marked by peculiar behaviour. She was not wearing shoes, was unsteady on her feet, and had to shuffle from left to right and keep her arms out to keep her balance. While it is possible that someone standing on a hot roadway might move from one foot to another, there was no complaint of that nor any evidence that the roadway was hot. Even if it was, it still begs the question why she was barefoot in the first place. Ms. Murray provided further support for the officer's grounds by her clear inability to gauge personal space. As they spoke she would encroach, uncomfortably so, into Cst. Fuglsang's personal space, and force him to retreat to avoid her coming into contact with him. Her eyes were bloodshot and glossy and she had difficulty focusing. While she was initially responsive to questions about what had occurred, in short order her responses were incoherent, slurred at times, and unrelated to the accident, but instead focussed on her purported involvement with police and claims of a past career as a Playboy model.

[45] Ms. Murray argues that some of those indicia could have been caused by the accident and a head injury, but there was no apparent injury seen by anyone other than Roy Marchildon and his evidence is not reliable in this regard. There was no evidence of any injury observed by the paramedic on scene or any police officer. Ms. Murray herself denied being injured and refused any kind of medical assessment that might have supported such a claim. Even if some of the indicia of impairment could have been caused by the accident, Ms. Murray's presentation could also have been caused, as the officer reasonably believed, by the consumption of alcohol or a drug. That he considered, after arrest, having her provide a breath sample into an approved screening device to eliminate the possibility of her erratic behaviour being the result of drug consumption, did not mean that he did not believe he had the grounds for the arrest. It was, I accept, an erroneous belief of procedure due to inexperience and being thrown off the proper procedural steps by a hysterical woman screaming repeatedly that he was raping her.

[46] Tanya Murray's presentation at the roadside gave the officer the reasonable and probable grounds to believe her ability to drive was impaired by the consumption of alcohol. That conclusion was amply supported subjectively and objectively. Anyone in his position would have come to the same conclusion. Ms. Murray's rights under the Charter were not violated by her arrest, and the officer had the authority to make a breath demand. Whether or when that demand was made brings me to the next issue.

The Breath Demand

[47] The issue before me is whether Cst. Fuglsang made a breath demand, and if he did, when that demand was made. The defence argument is not that the demand was not made in a timely fashion, but that it was not made at all. If I find that the officer did not make the demand, then there obviously could be no lawful demand that Ms. Murray refused to comply with.

[48] To understand what was, and wasn't, done, there needs to be some repetition of the situation Cst. Fuglsang was dealing with. Vehicles belonging to first responders had blocked off the roadway near the scene of the accident when he arrived, and he parked his cruiser and walked to where Ms. Murray was standing. EMS and firefighters were around the area as well as members of the public. After he arrested Ms. Murray for impaired operation, he told her that she was going to be taken to a police cruiser and then taken to the detachment for further testing. Cst. Gilbert was present for the physical part of the arrest of placing handcuffs on her. As they walked, Ms. Murray was upset. When she complained that the handcuffs were too tight, they were loosened for her. They continued the walk to the Cst. Gilbert's police cruiser as it was closer to them than Cst. Fuglsangs'. Ms. Murray began crying and telling him "you can't do this to me, it was my dog". When that did not stop the process, Ms. Murray starting yelling "help me, you're raping me". The officer said he was so concerned about the allegations she was making that he asked nearby EMS workers to watch them. After being placed in the cruiser she continued screaming that "the handcuffs [were] too tight", that she "[couldn't] believe the police were doing this to [her]" and how he, or they, were "ruining [her] life". Cst. Fuglsang's attempt to read her rights to counsel and caution from his police-issue cards was met with Ms. Murray screaming "rape" over and over again. Cst. Fuglsang testified that he read the breath demand at the scene, while she was sitting in the cruiser. She wasn't listening, but was instead screaming "rape".

[49] Cst. Fuglsang denied the suggestion that he did not make any breath demand. His note of having read the breath demand to Tanya Murray was a late entry. He agreed that he had prepared his notes of the incident after he had spoken with Cst. Miller in the breath room. I am of the view that the video from the breath room is the best evidence of when the breath demand was made. In that video, Cst. Fuglsang is asked by Cst. Miller when the breath demand was made, he hesitates and then says "that was only when we got back to the detachment actually. She said she understood and wanted to talk to a lawyer first" which she did. So while I believe that the officer did tell Ms. Murray at the scene, generally, why she was being taken to the detachment for further testing to determine her level of impairment, his evidence of having read the formal demand from his police-issued card is contrary to his response to Cst. Miller, which is the response that I accept, namely that the formal breath demand was not made until Ms. Murray was at the detachment. I can appreciate, as the officer candidly admitted, that as a relatively inexperienced officer, he was not used to being yelled at to the degree that Tanya Murray had. Being repeatedly accused of rape had, in his words, "shaken him", and her screaming had continued through the transport to the detachment. I cannot accept his evidence nor his late entry that the demand was made at the scene. If it had, he would have told Cst. Miller that. I accept what he told the breath technician, that it was not until Tanya Murray was at the detachment that the formal demand was made.

[50] I do not accept, however, that no breath demand was ever made. I find that the formal demand was indeed made at the detachment. Tanya Murray's own words, though wrong, are evidence of that when she told the breath technician that she would provide a sample in 24 hours because her lawyer told her she could. If she had not have been provided with any demand, she would not have known about the request to provide samples of her breath, which she clearly did, but declined or refused because of some erroneous belief that she could hold off doing so for 24 hours.

[51] As counsel has conceded, if the demand was made, which I find it was, then Ms. Murray's refusal to provide samples of her breath to enable a proper analysis of the concentration of alcohol, if any, in her blood is proven; accordingly, Ms. Murray will found guilty of that charge.

Impaired Operation

[52] A conviction for impaired driving requires proof beyond a reasonable doubt that the accused's ability to operate a motor vehicle was impaired by alcohol. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. (R. v. Stellato, [1993] O.J. No. 18 (C.A.), aff'd, [1994] S.C.J. 51)

[53] That Tanya Murray had consumed alcohol prior to driving is not, in and of itself, illegal. It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive". (Stellato, supra, para 10).

[54] Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road. (R. v. Censoni, supra, para. 47, cited with approval in Bush, supra).

[55] Considering all of the circumstances, is the defendant's conduct, viewed objectively, consistent only with impairment and inconsistent with some other explanation. (R. v. Andrea 2004 NSCA 130, [2004] N.S.J. No. 399 (C.A.))

[56] The defence posits a number of alternative explanations for Tanya Murray's appearance and her behaviour and she provided an explanation for the accident that her dog jumped in her face as she was driving causing her to lose control of her vehicle. This was the second explanation she provided; the first to Kimberley Fox was that her son was in the backseat and put his hands over her face. The problem with that was that her son was not with her, her dog was.

[57] Her judgment after the accident was certainly suspect. She left the scene and returned a few minutes later not wearing any shoes. When dealing with police at the scene, she would stagger from one foot to the other and had to use her arms to try to keep her balance. The suggestion that she was doing so because she was barefoot or the road surface was hot or uncomfortable remained just that, a suggestion, and not one, I find, that explained her unsteadiness.

[58] The defence submits that her red or glossy eyes could well have been the result of her very emotional state, and her overall behaviour in continuously moving towards the police officer into his space and forcing him to retreat, as well as her unresponsive and nonsensical commentary, and her repeated false accusations of rape is explained by a suggestion that her behaviour would make sense if she had been sexually assaulted by a police officer. I find, however, that the evidence before me is not capable of supporting such an alternate explanation for her conduct.

[59] While Cst. Fuglsang could not detect an odour of alcohol coming from her breath at the roadside, Cst. Gilbert did, and by the time Ms. Murray reached the detachment, that odour was apparent. Her continuous screaming, overheard as Cst. Fuglsang tried to use the police radio in the cruiser, is also not explained by something other than impairment. Ms. Murray's display at the detachment, while clearly more subdued, with a steady gait, and her being more responsive as a result of the apparently calming presence of two female officers, nonetheless, was also marked by rambling and tangential commentary. The evidence from the one witness called by the defence, Roy Marchildon, while well-meaning, is simply not reliable. I am not convinced his interaction with her was indeed forty or fifty minutes prior to the accident and I simply do not believe his observations of her acting perfectly normal and if anything less talkative than usual. In any event, when I consider the constellation of factors and the evidence in its totality, not in isolation, it is abundantly clear that the consumption of alcohol admitted by Ms. Murray to the breath technician, whatever that amount may have been, impaired her ability to drive beyond the slight degree that is required to establish guilt beyond a reasonable doubt. The result is that Tanya Murray will also be found guilty of the impaired driving charge.

January 14, 2019

Signed: Justice J. Bliss