Court File and Parties

Ontario Court of Justice

Date: September 11, 2019

Court File No.: Toronto, College Park 17-75003195

Between:

Her Majesty the Queen

— and —

Jackie A. Jurmain

Before: Justice J. W. Bovard

Heard on: July 18, 19, 20; October 22; November 29, 2018; March 18, 2019

Reasons for Judgment released on: September 11, 2019

Counsel:

• M. Morley, counsel for the Crown
• L. Dubin, counsel for the defendant Jackie Jurmain

Reasons for Judgment

Bovard J.:

Introduction

[1] The police charged Ms. Jackie Jurmain with impaired driving and 'Over 80' on July 6, 2017. These are the court's reasons for its disposition of the trial and accompanying motions under the Charter.

[2] Two residents of an apartment building saw Ms. Jurmain hit a parked car as she tried to park in front of their building. They thought that she was under the influence of an intoxicant. They called the police. Officers Hum and Kovacevic came and investigated the incident.

[3] One of the residents made a video tape of part of the event. The defence argues that the police breached Ms. Jurmain's rights under ss. 7, and 11(d) of the Charter because they failed to obtain the videotape.

[4] The defence also argues that the police breached Ms. Jurmain's rights under ss. 8, 9, and 10(b) of the Charter.

[5] The remedy that the defence seeks is a stay of the proceedings for the breaches under ss. 7, 11(d), and the exclusion of all the incriminating evidence because of breaches of ss. 8, 9 and 10(b).

[6] The Crown opposes all the Charter applications.

[7] During the investigation, Ms. Jurmain made two utterances to Officer Hum that the Crown seeks to introduce into evidence. The defence contests their voluntariness. The Crown must prove beyond a reasonable doubt that Ms. Jurmain made the utterances voluntarily.

The Issues

[8] The issues are the following:

1. Did the Crown prove the offences beyond a reasonable doubt?

2. Did the Crown prove beyond a reasonable doubt that Ms. Jurmain made the utterances to Officer Hum voluntarily?

3. Did the police breach Ms. Jurmain's rights under ss. 7, 8, 9, 10(b), or 11(d) of the Charter?

   (a) If they did, should the court grant a stay of proceedings, or exclude the evidence against her under s. 24(2) of the Charter?

[9] The defence has the onus on a balance of probabilities to prove that the police breached Ms. Jurmain's Charter rights, and if they did, that a stay should be granted, or that the incriminating evidence against Ms. Jurmain should be excluded.

[10] Counsel agreed to proceed in a blended fashion regarding the trial proper, the Charter applications, and the voluntariness voir dire concerning the two utterances that Ms. Jurmain made to Officer Hum.

Disposition

[11] For the reasons stated below, I dismiss all the defence's Charter applications. I find Ms. Jurmain guilty as charged and register convictions on both charges. However, I enter a conditional stay on the impaired driving charge.

The Evidence

Admissions

[12] The defence admits: (1) jurisdiction, (2) time of the alleged offences, and (3) that the breath tests were taken as soon as practicable.

Oral and Documentary Evidence

[13] On the day in question, Ms. Screves, a resident of an apartment in front of which Ms. Jurmain parked her car, called 911 to report that as she was parking, Ms. Jurmain hit a parked car. She also reported that Ms. Jurmain was intoxicated. The dispatch unit of the Toronto Police Service received the call at 15:25 hrs.

[14] At 15:39 hrs., the dispatch unit directed Officer Hum and his partner, Officer Kovatevic, to investigate the incident. Dispatch characterized the case as a motor vehicle accident that had caused damage to property. Dispatch also told the officers that there was an allegation that the driver was impaired. Officer Hum said that sometimes people do not understand the indicia of impairment. Therefore, he took this under advisement. He wanted to see for himself whether the subject was impaired.

[15] At 15:57 hrs., Officers Hum and Kovatevic arrived on scene. Officer Hum saw a Honda Accord and a Hyundai Tucson parked next to each other in the parking lot. The Accord was in front of the Tucson. Both officers testified that the Tucson had its rear wheel up on the sidewalk. Officer Kovacevic said that this made it "difficult for someone to use the sidewalk". She added that the parking spot was "a fairly simple spot to get into because you can just drive right into it".

[16] Officer Hum saw corresponding damage to both cars. The Honda had grey "silverish" scrapes to the driver's side rear panel. The Tucson had damage to the front passenger bumper. It was cracked and scratched. Officer Kovacevic testified similarly.

[17] Ms. Screves showed Officer Hum a picture that she took of the driver. Officer Hum said that the picture was of Ms. Jurmain standing by the front driver's side hood of the Tucson. He did not remember whether Ms. Screves told him that Ms. Jurmain was impaired.

[18] At 16:03 hrs., while he was trying to look at a video that Ms. Screves had made, she pointed out Ms. Jurmain. She was walking towards him, approaching her car. He walked towards her waving a "very friendly hello". He expected her to come and speak with him and answer his questions. When she came over to him, he introduced himself. He told her that he was investigating a motor vehicle accident. She seemed shocked about it.

[19] He asked Ms. Jurmain if she had consumed any drugs or alcohol. She said she had not. He did not smell alcohol on her breath. He was happy to be just investigating a traffic offence. They walked together to the cars. She acted pleasant, happy, and care free.

[20] They walked to the Accord first. Officer Hum said that she was under detention from the time that they walked over to inspect the cars. Officer Hum pointed to scratches on the car. Ms. Jurmain told him that the Accord had not been there when she parked.

[21] When he pointed out damage to her motor vehicle she said that it was sustained about six months ago. Officer Hum testified that Ms. Jurmain's bumper was falling off. This made the car undrivable. In his notes he only said that the bumper was cracked. Officer Kovacevic differed, saying that she thought the car was drivable.

[22] After a voir dire, I ruled that Ms. Jurmain gave these two utterances voluntarily. Therefore, I admitted them into evidence.

[23] Based on how the cars were parked and on the scratches to both cars, he concluded that Ms. Jurmain's car damaged the other car, not the other way around.

[24] When he pointed out to her that she had parked partially on top of the curb she shrugged her shoulders and threw her arms out to the side; a gesture that he interpreted as meaning that she did not have a care in the world.

[25] He asked her for her driving documents. She "pulled out" her driver's license and gave it to him. Then she went to the front driver's side door and unlocked the door. She opened the glove compartment and bent over to take out an 8X11 folder like the ones that contain the owner's manual. While she was bent over she "just does this little side step, kind of a little stumble". She stood back up and she "kind of takes a step, like a stumble back, a small step back …"

[26] She opened the folder. Officer Hum could see her insurance document in the folder but she could not. He pointed to it and told her to hand it to him. She was "like, I - I don't know". So he took it out.

[27] Officer Hum asked her for her ownership. She was "emptying out everything onto her glove box into her passenger seat". There were numerous cards. She scooped them up and stepped back with the cards in her hands. She fanned out all the cards in front of his face as if they were a deck of cards. He pulled out the ownership. He did not look at the documents closely enough to see that she was not the owner of the car. He was not sure if she had been drinking. He was about six inches away from her trying to see if he could smell anything, but he could not.

[28] Officer Hum returned to his cruiser and did some information checks. It was around 16:08 hrs. He believed that she was impaired, but he did not know how badly. He decided to make a demand for a breath sample into a roadside screening device (ASD). His reasons were that he had,

a personal conversation with myself, she's not on file with anything of significance and - and with her behavior of how she was, that kind of non-chalant (sic) free – freeness, the – the – with all those little things I made the decision to ask her for a … roadside screening device … so I called out for one.

[29] In addition, he considered,

she did the little stumble twice, she wasn't able to pick out her – well, the insurance card there was only one thing in the owner's manual in the book, she couldn't – she wouldn't pull that out or didn't pull that out for me, the reason she fanned out all those cards in front of my face and wasn't able to select the ownership that I was pointing at, her kind of carefree attitude – the stumbles, that's when I suspected that she might be under some sort of impairment.

[30] Oddly, he said that he did not turn his mind to the issue of whether she had driven with alcohol in her body that day. He did not know if Ms. Jurmain consumed alcohol before she drove the car. Perhaps he was referring to an earlier time in his investigation.

[31] But based on his above testimony, I am satisfied that when he called for an ASD he clearly suspected that she had been driving after having consumed alcohol. He thought that it was approximately 16:12 hrs. when he called for the ASD. After he called, he told her that he suspected that she had been drinking, or was under the influence of a drug, or both. She responded "sure" in a carefree manner and "kind of threw up her hands".

[32] As he was reading the breath demand for the ASD, Ms. Jurmain walked away. She told him that she was not going to do it. She quickly headed toward her car. He was shocked. He could not believe that after being so cooperative previously, now she "just flipped".

[33] He believed that she was trying to get into her car to drive away, thereby committing the offence of impaired driving. Based on this, and his previous observations, he felt he had reasonable and probable grounds to arrest her for impaired driving. He also could have arrested her for refusing to give a breath sample.

[34] He jammed his memo book into his pocket, hastened over to her and grabbed her and arrested her by the front driver's side of her car. It was 16:13 hrs. or 16:14 hrs. Defence counsel asked him the following question and he gave the following answer:

Q. … from the moment you were investigating the hit and run, or whatever you call it, the fail to remain, to the point where you arrested her for an impaired, during that whole time you didn't think she was impaired, that was your evidence, right? You thought she was fine.

A. I – yes, initially I thought she was fine. (emphasis added)

[35] He did not know Ms. Jurmain so he did not know if her behaviour was normal for her. He said that "at the very beginning I had low signs of – a suspicion of her intoxication". But although he was not 100% sure of how intoxicated she was, he thought that he should make a demand for a breath sample into an ASD. He reasoned that if she "wasn't impaired by anything I could unconditionally release her".

[36] He said,

… at the time I was – I didn't know the level of her intoxication. So, I didn't know if she was lack of a better term a little bit drunk or intoxicated. So, if she would fail the roadside or if it was just a warning. If she could be released from here or if I actually had to take her to the station for impaired. So, I wasn't – I wasn't sure. So, I wanted to read her the approved screening device demand. The roadside demand.

[37] He believed that she was impaired, but he did not know the extent of her impairment. That is why he wanted her to give a breath sample into an ASD.

[38] After the arrest he put handcuffs on her and,

… had a short simple conversation with her advising her her (sic) rights quickly as we stepped three steps or like, a few steps to my scout car. And then I opened it and placed her in the rear of my scout, the back seat of my scout.

[39] Officer Hum testified that he "would have said, do you want to speak to a lawyer" and waited for a response. He did not make notes regarding this. What he said to her was just "off the top of my head".

[40] Once she was in the cruiser, he took out his memo book, "getting things … going through the events in my head to make sure that I'm ready to do this".

[41] When he opened the cruiser door to read her the rights to counsel from his memo book he was,

… overwhelmed with alcohol and I actually took a step back and it – it messed me up, Your Honour. It messed up my memo book, it messed up my writing. I couldn't – I forgot how to read for a second. Like, I – I've read this many times, the demand to people, and you can see that I was – I made reading errors just by smelling the amount of alcohol from her, right. There wasn't alcohol in the back seat of my car now, I placed her in. I opened the door after a few seconds, 30 seconds and this big whoof of alcohol is now in my face.

[42] He had not detected the odour of alcohol on her breath previously. It was only after she was in a confined space in the back of the cruiser that he smelled it.

[43] At 16:14 hrs., he read the rights to counsel to her. She hesitated for a bit and then said that she wanted her phone from her car. Officer Hum asked her if she wanted to call a lawyer now. She said that she did. He went to her car and got her phone, but he did not give it to her. Instead, he put it in a property bag and put it on the dashboard of his cruiser.

[44] He mistakenly read the approved instrument demand to her instead of the ASD breath demand.

That's the one I read. If it was a straight impaired that's the one I should have – or would have – would be reading, but I made a mistake and I read the wrong one. That's the one where you take them to the station …

[45] Nevertheless, after he read the breath demand to her he waited for the ASD to arrive.

[46] Officer Gill arrived with the ASD at 16:25 hrs. Officer Hum briefed him on the situation. Officer Gill administered the ASD breath test. Ms. Jurmain failed the test.

[47] At 16:32 hrs., Officer Hum made a demand on her for a sample of her breath into an Intoxilyzer.

[48] At 16:41 hrs., he took her directly to the police station to give samples of her breath.

[49] They arrived at the sally port of the station at 17:19 hrs. At 17:25 hrs., they entered the sally port. He paraded Ms. Jurmain at 17:28 hrs.

[50] At 17:44 hrs., after the booking-in procedure was complete, Ms. Jurmain asked to speak to her husband. Officer Hum called him and let her speak to him.

[51] At 17:54 hrs., she asked to speak to duty counsel. Officer Hum left a message for duty counsel. Duty counsel called back one or two minutes later. Ms. Jurmain spoke with duty counsel right away. It had been one hour and forty-one minutes since he had put her in handcuffs.

[52] Next, Officer Hum took Ms. Jurmain to the breath room. She gave the required samples of her breath.

[53] As far as Officer Kovacevic's involvement with Ms. Jurmain, the officer said that while she was speaking with Ms. Screves, with Officer Hum standing by, Ms. Jurmain approached them. Officer Kovacevic noticed a cut on her hand. She asked her if she wanted her to call an ambulance to look at the cut. Ms. Jurmain asked her if she really cared. Officer Kovacevic said that she did. Ms. Jurmain rolled her eyes.

[54] Ms. Jurmain told her that she parked her car and went to a doctor's appointment. The damage to her car occurred previously. She did not report it to the police. Officer Kovacevic was two arm's lengths from Ms. Jurmain while she spoke with her. She did not smell alcohol or anything from her.

[55] But her speech was slow and "a little bit slurred". She took "a little bit longer to actually start giving a response". She swayed when she stood. Her feet were not moving, but her hips were moving back and forth. Officer Hum took charge of speaking to Ms. Jurmain. Officer Kovacevic went back to speaking with Ms. Screves.

[56] Aside from this, being in the cruiser when they took her to the police station, and serving her with the certificate of analyst, Officer Kovacevic did not have any involvement with Ms. Jurmain.

[57] Dr. Mayers testified as an expert toxicologist. I qualified him in:

forensic toxicology generally, and specifically in the following areas; the ingestion, absorption, distribution and elimination of alcohol from the body – the human body I should specify. The calculation of blood alcohol concentration in the body, and the theory and operation of approved instructions, including the Intoxilyzer 8000C, and the affects of alcohol on the human body with respect to the operation of motor vehicles.

[58] Dr. Mayers said that based on the Intoxilyzer test record, the Intoxilyzer that the breath technician used to take Ms. Jurmain's breath samples was in proper working order. He found that "it was accurate and reliable to determine a person's blood alcohol concentration at the time they were tested".

[59] The Crown put the following hypothetical to Dr. Mayers:

First, there was a motor vehicle collision involving two motor vehicles, at approximately 3:25 p.m.

Second, that approximately two hrs. and 45 minutes after the collision or 6:11 p.m., the driver of one of those two motor vehicles provided a suitable sample of her breath directly into an Intoxilyzer C approved instrument – sorry, 8000C.

Third, that the result of the analysis of this sample was 250 milligrams of alcohol per 100 millilitres of blood.

Fourth, that the driver who provided that sample did not consume any alcohol between the time of the collision and the time of the breath sample being analyzed.

Fifth, that the driver who provided the sample also provided a second suitable sample at 6:37 p.m.

Sixth, and finally, that the result of the analysis of the second breath sample was rounded down by the qualified breath technician to 230 milligrams of alcohol per 100 millilitres of blood.

[60] Based on this hypothetical, he concluded that at "the time of the incident", the driver's blood alcohol concentration was between 240 and 295 milligrams in 100 millilitres of blood.

[61] At 6:37 p.m., the time of the second breath test, the driver's blood alcohol concentration was 230 milligrams of alcohol in 100 millilitres of blood.

[62] Dr. Mayers assumed an elimination rate of between 10 and 20 milligrams of alcohol in one hundred millilitres of blood per hour. This range encompasses the majority of persons in the human population.

[63] His opinion is that a person's ability to drive a motor vehicle would be impaired if they had these BAC levels.

[64] Using the same hypothetical for the following times his calculations would be as follows:

• Between 2:00 p.m. and 3:25 p.m. – between 240 and 320 milligrams of alcohol in 100 millilitres of blood

[65] The Crown put a second hypothetical to Dr. Mayers:

For a hypothetical driver, 39 years of age, female, approximately five foot six and approximately 120 pounds. The time of driving of 3:25 p.m., and readings of 250 milligrams of alcohol at 6:11 p.m., and 230 milligrams of alcohol at 6:37 p.m. Can you calculate how many standard drinks that individual would have had to consume post-driving, such that their blood alcohol concentration, at the time of driving, would have been below 80.

[66] Dr. Mayers calculated the following:

For this person to be at 80 ... At the time of driving they could be at 80 at the time of driving and at the results, as determined by the Intoxilyzer had they consumed between four and a half to five and one quarter standard drinks, and a standard drink I would define as one and a half fluid ounces of a 40 percent alcoholic beverage; it could also be a standard bottle of beer, which is 12 fluid ounces, five percent alcohol; and just to round out the definition, a standard glass of wine in our definition would be five fluid ounces, 12 percent alcohol volume per volume.

It's clear that there can be variability in the last two, but – or even in the percentage of alcohol for any of those, but that is the definition that I use for standard drinks.

[67] The Crown put another hypothetical to Dr. Mayers:

Assuming the exact same information with respect to that driver, her age, gender, height and weight, same time of driving, 3:25 and the same results from the approved instrument samples, at 6:11 and 6:37, how many standard drinks would that individual have to consume, post-driving, to be at a blood alcohol concentration of zero at the time of driving. That is they did not consume any alcohol that was still in their system at the time of driving?

[68] Dr. Mayers calculated the following:

For this individual to be zero at the time of driving and then rapidly increase in blood alcohol, because that – that's what would happen, they would have to consume between six and a quarter to seven standard drinks after the time of the incident, but prior to the time that the breath samples were collected from that person.

[69] The defence asked Dr. Mayers to perform another calculation for a female who is 105 lbs. He said that,

for the hypothetical individual who is female and 15 pounds lighter, that is a hundred and five pounds, now to be at 80, not in excessive of 80, but at 80, the consumption would have been between three and three quarters to four and a half standard drinks.

And to just finish the calculations that the Crown - with this new hypothetical, for this person to be zero at the time of driving and give rise to the blood alcohol concentration sometime later, at the time of testing, I would project that this 105 pound female individual would consume – would have to consume between five and a half to six and a quarter standard drinks.

[70] In re-examination, the Crown put a new hypothetical to Dr. Mayers:

Assuming an individual, female, 39 years of age, five foot six, 105 pounds, with an estimated time of driving of 3:25, and a blood alcohol concentration of truncated 230, at 6:37 p.m., and also assuming that that individual consumed six fluid ounces of 40 percent alcohol after driving and before breath testing. Can you calculate that person's blood alcohol concentration at the time of driving and eliminating – or removing rather those six fluid ounces?

[71] Dr. Mayers calculated that this person's BAC would be:

the projected blood alcohol concentration at the time of the incident would be between 50 to 105 milligrams of alcohol in a hundred millilitres of blood.

[72] He agreed that his calculations are not precise. He uses "a variety of factors that are general in nature to come up with a projected consumption".

Evidence Regarding the Charter Application Under ss. 7, 11(d) – Lost Evidence

[73] Officer Kovacevic, said that she spoke to Ms. Screves who told her that she took a videotape of Ms. Jurmain once she got out of her car after she parked. She showed the video to the officer. Officer Kovacevic said that the video did not have any significance for her because they were just investigating a Highway Traffic Act case of a motor vehicle causing damage to property and leaving the scene. The video did not show any damage to the cars involved.

[74] Despite that Ms. Screves told Officer Kovacevic that Ms. Jurmain was drunk, the officer did not think that the video contained any information that would be relevant regarding a prosecution for impaired driving or 'over 80'.

[75] The video just showed Ms. Jurmain standing outside of her car. Someone yelled that she was drunk. But she was not doing anything that made her appear intoxicated. Officer Kovacevic said that her responsibility in this situation was to "deal with the things at the scene that need to be dealt with right away and one of them was everyone's safety and also to figure out what is going on. And if anything like this video – it could have been collected later on".

[76] Officer Kovacevic asked Ms. Screves to email the video to one of the investigators. Ms. Screves said that she did not know how to do that. She was not "tech-savvy" and would have trouble figuring out how to "get the video over".

[77] Officer Kovacevic did not use her personal phone to try to get a copy of the video because they are instructed not to use their personal phones to collect evidence. In addition, she does not have video on her phone.

[78] She told Ms. Screves that an investigator would probably contact her later to get the video.

[79] But Officer Kovacevic noted that Ms. Screves did not want to hand over the video. She did not want to be involved in the case.

[80] After they booked in Ms. Jurmain at the police station, Officer Kovacevic told the traffic office that Ms. Screves had the video. She assumed that they would get it, so it was not something that she had to secure at the time. She told the investigators in the detective office that Ms. Screves was "being very reluctant with everything". Ms. Screves "kept going back and forth whether she wanted to give us the video or not".

[81] She also told them that Ms. Screves had a video on her cell phone, but that she was not technologically adroit. She did not know how to send it to them or make it available to them.

[82] Officer Lennon is the primary investigator and the Officer-in-Charge of the case. One of his duties is to oversee the disclosure process.

[83] He identified a request for disclosure that he received from the Crown on April 17, 2018 at 10:18 a.m. Three items were requested. I note, however, that Officer Lennon only testified regarding two:

1. 911 call;
2. Video DVD taken by Ms. Ashley Screves.

[84] Regarding the 911 audio tapes, Officer Lennon ordered them. They were sent to the Crown on July 4, 2018.

[85] Concerning the video DVD, one of the arresting officers on the case told him on the night of Ms. Jurmain's arrest that "there were (sic) potential video of the incident … there was possible (sic) a video of the incident". One of these officers also told him that Ms. Screves did not want to be involved in the case. That was the reason that the arresting officers did not obtain the video on the night of the arrest.

[86] In examination-in-chief, Officer Lennon said that he first contacted Ms. Screves about the video on the night of Ms. Jurmain's arrest:

Q. When was the first time you contacted her?

A. The first time I contacted – the first time I – I was aware of the video, the potential video was the night of the arrest.

[87] In cross-examination, he said that he did not "recall exactly what time, what day".

[88] Further in cross-examination, he stated the following about when he contacted Ms. Screves:

Q. And as soon as you discovered that she had evidence and she did not give it to the police and she didn't want to give it to the police, what did you do to get that – to get that evidence and secure the evidence?

A. I contacted her by phone.

Q. What date?

A. It was the day or the day after, I don't recall exactly what time, what day.

Q. Sorry, what date?

A. Its either the day of the incident or the day after the incident I – I contacted her by phone and ask her if she was willing to provide a statement.

Q. Do you have a notation of that in your notes?

A. No I don't.

Q. So, how are you remembering what date you contacted her on?

A. I didn't give you a specific date. What I said was, the date of the incident, when I was told, right, I contacted the – the witness and asked her if she would provide a statement, the day ….

[89] Upon further questioning he said he contacted her on the day of the incident:

Q. The day of the incident you contacted her and asked her for the evidence

A. I ask her if she wanted to give a statement, yes.

Q. And did you ask her for the evidence that was in her hands, that she hadn't wanted to give?

A. I ask her if she wanted to provide a statement and I would have ask her if she wanted to provide that evidence at the time, right ….

Q. And ….

A. Again, she was reluctant to even speak to me. She didn't – she said she didn't want to get involved.

Q. At that point you knew that the officer had been shown a video by one of the witnesses during his investigation on the scene, right?

A. No, I disagree. You say shown a video, no.

Q. Okay. So, you don't know that – you're saying you don't know that the officer was shown. By that date you knew that the officer was told that there's a video.

A. Yes.

Q. And so when you call ….

THE COURT: Sorry, when you say, that date, what date are you talking about?

MS. DUBIN: The date of the offence.

MS. DUBIN: Q. So, when you called her on the date of the offence did you specifically say – ask her for the video?

A. I specifically ask her if she wanted to provide a statement.

Q. Did you ask her for the video?

A. To answer your question like, I said ….

Q. Yes or no?

A. I said – its not a yes or no question. I can't answer yes or no, Your Honour. It's – I ask her – first of all, it's a reluctant – she's a reluctant witness. I ask if she wants to provide a statement.

Q. Okay.

A. Do you have any video or recording of the incident? She's like, I don't want to get involved. I don't want to be involved.

Q. You ask her that?

A. I ask her that, that night or shortly after. She doesn't want to be involved. It's – it's – it's hard for me to – I can't force her to be involved. She didn't want to be involved.

Q. So, when she said – when she indicated to you that she wasn't going to give you that evidence, you didn't take steps to obtain that evidence, did you?

A. No, because she did not want to be involved.

[90] Officer Lennon's position was that he was not sure if the video contained evidence of the incident because the officers that told him about it said that it was a "potential" or "possible" video of the incident. The officers, including himself, had not seen the video.

[91] On the day in question, Ms. Screves was reluctant to provide any statements to the police or to provide them with a copy of the video.

[92] Despite Officer Lennon's evidence above that he did not do anything to obtain the video when Ms. Screves told him that she did not want to be involved or give it to him, he testified that he continued to make efforts to obtain the video.

[93] He told her that it was important evidence, and that it was important to provide a copy to the police as best she could so that they could have a copy. He told her that he would be willing to go to her home to get the copy. She would not be obliged to go to the police station for this purpose. He tried to impress upon her the importance of providing any information that she could to the police regarding the incident.

[94] He spoke to her a second time about the video in March 2018. She did not provide a copy of the video on this occasion either.

[95] The third time that he contacted her about obtaining the video was after he received the Crown's disclosure request for the video. However, Ms. Screves was still reluctant to participate in the investigation. In addition, she told him that she lost her phone, which contained the video.

[96] Officer Lennon could not remember who he told, or when he told them that Ms. Screves was a reluctant witness. He did not make notes about this.

[97] He made a notation "around May 17" on the disclosure request that Ms. Screves no longer had the video. Later, in examination-in-chief, he stated that he made this notation "on May 17, 2018". In cross-examination, he stated that he first received a request from the Crown for the video on April 17, 2018. The Versadex printout has the date on it. It was made an exhibit.

[98] Prior to April 18, 2018, he was not aware that on an endorsement from the judicial pre-trial, the video had been noted as outstanding disclosure. The Crown and defence agree that the pre-trial judge made the endorsement on September 18, 2017. In addition, I believe that the Crown concedes that the defence made requests for the video between September 18, 2017 and the trial date. When I asked the Crown if he conceded this point he said:

It's in my response. Your Honour has – essentially my friend and I have made a number of representations in our materials about my friend's request to our office. Our office's request to the police. Of course, it's in the materials.

[99] I looked through the Crown's response to the defence's Charter application, but I did not see any concession in this regard.

[100] However, exhibit A to these proceedings is a "Toronto Police Service" disclosure request dated April 17, 2018, from Michael Chin (MAG) to CDM College Park. It states that "DVD – taken by witness Ashley Screves – Requested … - the witness adv that she does not have video – 9765. The report further states "Statement – Witness Video Statement – CD/DVD – as per csl request – there is only audio and its (sic) attached to the GO-9765". At the bottom it states that the item is required by May 8, 2018.

[101] Ms. Screves testified. Her evidence applies to the defence's s. 7, s. 11(d) lost evidence application, and to the trial proper.

[102] She lives on the third floor in the building that is across from the parking area where Ms. Jurmain parked. At about 2:30 p.m., she was sitting on her balcony with her granddaughter. She can see "everything" from her balcony. It faces "everything that the eye can see".

[103] Ms. Screves heard loud music coming from a car, and a crunch. She stood up and saw Ms. Jurmain reversing a car into a parking space. The car was right below the balcony, fifty feet away. She just saw the "tail end of it". Ms. Jurmain had just finished parking and was getting out of the driver's seat of the car. There was no one else in the car.

[104] Later, in examination-in-chief, she said that she heard two crunches " 'cause she pulled out and pulled back in again and hit it again the second time". She described the crunches as "car hitting car". Ms. Jurmain "grinded" the other car.

[105] In examination-in-chief, she said that although she did not see the car collide with anything, she could say that there was a black car in front of the driver's car. The car that Ms. Jurmain hit was a "little black sports car".

[106] However, in cross-examination, she said that after the initial crunching sound she stood up to look and saw Ms. Jurmain "bump the car again". She saw Ms. Jurmain grind the other car again.

[107] When she testified in the morning, she said that in her statement to the police she "mostly likely had to tell the police officer I saw her hit it because I saw her hit it".

[108] But after the lunch break, she said that she was taking back the evidence in-chief that she gave in the morning "because I did say at first that I didn't see one, but I did see one through the shock of it". She realized over the lunch break that she was mistaken in her examination-in-chief. She did not see the first hit, but she saw the second one.

[109] This evidence is confusing. I summarized it this way:

THE COURT: While it appears that – the way I take it is that she told the officer – her evidence is she heard two bangs and she saw one of them. And then she said that she did tell the officers that she saw Ms. Jurmain hit the car. But, she only saw this one time. I think that points been made out. Is there anything else, Ms. Dubin?

MS. DUBIN: No, thank you. That's all.

THE COURT: Okay.

MS. DUBIN: I'm finished with the witness, Your Honour.

[110] Ms. Screves said that an "F150" truck could have fit into the parking space in which Ms. Jurmain was trying to park, with a foot or two left over on each side. She said that an F150 is a "Ford type pickup truck". It is a "pretty big vehicle. Picture a four door, crew cab, six foot bed". This is all to say that Ms. Jurmain's car "would have fit and have plenty room".

[111] Ms. Screves asked Ms. Jurmain if she was okay. She asked her whether she realized that she had just hit the car in front of her. Ms. Jurmain was "dazed". She was coherent, but "spacey", "not alert". Ms. Jurmain did not say "oh, excuse me, nothing like that. It was huh"?

[112] When she asked her if she was inebriated Ms. Jurmain "just looked at me with her two hands open an expression in the air and just a blank stare, like huh"? It was a shrugging motion – just in a puzzled motion, like what? Like what did I do …"

[113] Ms. Screves asked her whether she realized that she had just hit a car. She asked her if she was inebriated. Ms. Screves told her that she thought she was. Ms. Jurmain told her that she had a doctor's appointment. Ms. Screves told her to go.

[114] Ms. Jurmain "went about her business, came back a few minutes later, bloody and that was that". She appeared to be "scraped up and bleeding". She was not that way when she left. At this point Ms. Screves was standing right by Ms. Jurmain's car speaking to the owner of the car that she hit. Ms. Screves did not talk to her anymore.

[115] The car that she hit had scratches on the back passenger side. Ms. Jurmain's car was scraped on the front passenger side "front wheel, that fender part".

[116] Ms. Screves said that she tried to catch the episode on video. She filmed it on her phone from her balcony. She caught the "tail end", and her interaction with Ms. Jurmain. She had tried to email the video to the person whose car Ms. Jurmain hit, but she was not successful because the video was too big.

[117] The police arrived before Ms. Jurmain returned. No one moved Ms. Jurmain's car between the time that she got out of it and the police arrived.

[118] She was not sure if she showed the video to the police, but she said that "I do believe I played the video for [a female officer]". But it was not playing very well so she stopped it "and that was the end of that". Then she gave the officer her statement and signed it.

[119] She did not recall if the officer asked her for the video. In any case, she would not have given it to her.

[120] After Ms. Screves's initial contact with the police that day, Officer Lennon called her twice about the videotape that she made of the incident. He told her that the Crown wanted the videotape if there was one. She was not sure when he called her. She assumed that the first call was in 2017. She knows that the second one was in 2018.

[121] It appears that she lost her phone. When she got a new one she tried to transfer all 151 of her videos to her new phone. The video of the incident did not make the transition. She thinks that she may have mistakenly deleted it along with others that she deleted as part of the transfer process. When Officer Lennon called her the first time she told him that she lost the phone and that she did not have the video.

[122] She admitted that even had she had the video she would have been reluctant to share it with the police.

Honestly, truthfully speaking I didn't want any part of this. So, I gave my statement to deal with the situation at hand. I didn't want it to come to this. I didn't want to be a part of this. And I honestly feel I didn't want to give up the video if I had it, because I'm not trying to – those are not my intentions. I did what I set out to do that day. And as far as I'm concerned it was over with. This here is dragging me out, inconveniencing me. I just – I had at – plan B today and had to say at twelve o'clock last night, oh no, sorry, I can't – all you guys, I have court tomorrow.

[123] The first time that Officer Lennon called she told him that she "did not want to be a part of this drama". She could not remember what she said about the video. This contradicts her evidence in-chief that she told him that she did not have the video because she lost her phone.

[124] The last time that she saw the video was when she played it for the man whose car Ms. Jurmain hit. She said the video showed what she described in her evidence.

[125] The next witness was Ms. Edwards. At around 2 or 3 p.m., she was visiting a friend in the same building in which Ms. Screves lives. She was sitting out in front of the building. She saw Ms. Jurmain trying to parallel park into a spot that was large enough for a big truck. She heard Ms. Jurmain bang the car that was in front of her three or four times at least. The front fender of Ms. Jurmain's car was hitting the back of the other car. Ms. Edwards was about 40 feet away from Ms. Jurmain when she observed this.

[126] In cross-examination, she said that she did not see the first bang, she only heard it. After hearing "a couple of bangs" she got up to look. As she was getting up she could hear another bang of Ms. Jurmain hitting the other car. In total, she saw Ms. Jurmain hit the other car four times, maybe six. She kept "going ahead and backing up, and going ahead and backing up, each time she did she was hitting the car in front of her".

[127] Ms. Jurmain parked three or more feet from the curb. She did not park straight. She parked on an angle.

[128] Ms. Edwards walked over to within ten feet of Ms. Jurmain who got out of the driver's side of her car and said that she did not do anything wrong. She was staggering. Ms. Edwards thought that she was drunk or "high on pills or something". Ms. Edwards asked her about the car that she had just hit. She told Ms. Jurmain that Ms. Screves had a video that showed what she had done. Ms. Jurmain told her that she had to go to a doctor's appointment. Then she "just took off staggering down the street".

[129] Ms. Screves came downstairs and showed Ms. Edwards "a bit" of the videotape that she made. She could not remember what she saw on the video, though.

[130] She called the police. When they arrived, she told them that she thought Ms. Jurmain was "impaired or she's drunk or something because the behavior wasn't like a normal sober person". Her speech was a "Little slurry". She testified that she told this to the 911 operator. But it is possible that she told the police that it did not seem too bad. Defence counsel played the 911 tape in which it is clear that she did not tell the 911 operator anything about Ms. Jurmain's speech.

[131] Ms. Edwards said that the police were waiting for Ms. Jurmain when she returned approximately one to one and a half hrs. later.

[132] That was all the evidence.

Section 9 of the Charter

[133] The defence submits that Officer Hum did not have reasonable and probable grounds to arrest Ms. Jurmain. Therefore, he breached her rights under s. 9 of the Charter. In paragraph 2 of her written submissions, defence counsel stated:

The defence pleads that the warrantless arrest of Ms. Jurmain, under s. 495(1), was unlawful. The police did not have reasonable and probable grounds. As such, upon arrest, Ms. Jurmain was arbitrarily detained, contrary to s. 9 of the Charter. The arbitrary detention commenced at the time of the unlawful arrest and continued for approximately 5 hours.

[134] Section 495 of the Criminal Code grants powers of arrest to police officers. The relevant parts of this section for this case are the following:

495 (1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

(b) a person whom he finds committing a criminal offence;

[135] In R. v. Storrey, the Supreme Court of Canada found that for an arrest to be lawful, the officer must have subjective grounds that are "justifiable from an objective point of view". The court specifically stated that "the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest".

[136] Chartier v. Quebec (A.G.) held that "for a peace officer to have reasonable and probable grounds for believing in someone's guilt, his belief must take into account all the information available to him. He is entitled to disregard only what he has good reason for believing not reliable".

[137] Regarding Officer Hum's reasonable and probable grounds to arrest Ms. Jurmain, the defence took issue with the Crown's submission that Ms. Jurmain stumbled while walking to her car. I agree that this is not the evidence. There is no evidence that she stumbled while walking.

[138] Officer Hum stated that she stumbled while she was retrieving documents from her car. He said that while she was bent over getting the documents from the glove compartment she "just does this little side step, kind of a little stumble". She stood back up and she "kind of takes a step, like a stumble back, a small step back …"

[139] However, I do not agree with the defence that Ms. Jurmain was "manoeuvring" herself on "uneven ground" while she was retrieving her documents. There is no evidence that the ground on which Ms. Jurmain was standing was uneven.

[140] The defence further submitted that the fact that her car had one wheel on the curb "may explain the cause of the alleged 'stumble'". There is no evidence to support this submission. It is merely a supposition. I do not accept it as a cause of her stumbling.

[141] Nor do I accept that "the complexity of Ms. Jurmain's manoeuvring is a very probable explanation for the "stumble/stumbling" PC Hum observed". In the circumstances of this case, I do not find that leaning into her car to get documents out of the glove compartment was a complex thing.

[142] I grant that at times, Officer Hum's evidence was confusing. Sometimes he had trouble explaining himself. However, I consider that he was dealing with a situation that was unfolding steadily. He had to consider various elements: the apparent accident, Ms. Jurmain, and the witnesses. In these circumstances, perfection is not required for me to find him credible. Officer Hum was very careful in assessing all the circumstances. He was very fair to Ms. Jurmain. He considered both incriminating and non-incriminating factors in his assessment of whether he had grounds to arrest her.

[143] He had enough time to interact with her to properly assess her physical demeanour and her manner of speaking. He made observations that were consistent with impairment. It is not required that an officer smell alcohol on a person's breath to reasonably believe that they are impaired.

[144] Other indicia, as exist in this case, can provide support for that belief. One example is that when he told her that he suspected that she had been drinking, or was under the influence of a drug, or both. She responded "sure" in a carefree manner and "kind of threw up her hands". In addition, I find that Ms. Jurmain acted oddly throughout her interaction with Officer Hum.

[145] The defence argued that Ms. Jurmain was not familiar with driving documents because she did not own the car. Therefore, her fumbling about with them is understandable. This may or may not be true. I do not know how familiar Ms. Jurmain is with ownership and insurance documents. There is no evidence about this.

[146] Moreover, in the middle of Officer Hum reading the ASD breath demand to Ms. Jurmain, she told him abruptly that she was not going to provide a breath sample. Then she headed to the driver's side of her car.

[147] The defence argued that there were no "apparent" grounds to believe that Ms. Jurmain was going to get in her car and drive away. I disagree. She told Officer Hum that she was not going to provide a breath sample and then immediately headed for the driver's side of her car. In these circumstances, I find that it was a reasonable conclusion that she intended to drive away.

[148] The defence argued that before arresting Ms. Jurmain, Officer Hum should have "commanded her to stop, block the door to her car, ask her to provide her car keys, warn her that if she drives the car, he'll arrest her".

[149] The circumstances militate against this submission. Officer Hum was in the process of "commanding" her to provide a breath sample when she walked away, telling him that she was not going to provide one. Her actions did not bode well for her obeying any other commands that Officer Hum might have made.

[150] As far as blocking her way, he was too far away from the car to block her way to the driver's side door. She was ahead of him.

[151] Officer Hum was reacting to an unexpected event that was unfolding rapidly. There was no obligation on him to exhaust every possible alternative way of trying to dissuade Ms. Jurmain from getting into her car and driving away.

[152] As Storrey indicated, "the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest".

[153] In addition, I agree with his conclusion that he had the grounds to arrest her for refusal to provide a breath sample. However, he showed restraint and did not arrest her for that. The defence argued that it was not a "lawful demand" because what he told her did not "contain all of the essential information" as prescribed by the Criminal Code.

[154] I would point out that Officer Hum testified that as he was reading the breath demand for the ASD, Ms. Jurmain walked away, telling him that she was not going to do it. It is clear from her comment that she understood the essential elements of the demand.

[155] In any case, whether she could have been found guilty of refusing to provide a breath sample is irrelevant in this case, because Officer Hum did not charge her with this offence. Ms. Jurmain's actions and words are just another example of her odd behaviour that Officer Hum was entitled to consider in his decision to arrest her for impaired driving.

[156] In these circumstances, I find that it was reasonable for Officer Hum to believe that Ms. Jurmain was about to commit the offence of impaired driving. I find that when looked at as a whole, he had reasonable and probable grounds to arrest her for impaired driving.

[157] Therefore, after considering all the circumstances, I find that the defence did not prove on a balance of probabilities that Officer Hum breached Ms. Jurmain's rights under s. 9 of the Charter. This application is dismissed.

Sections 11(d) and 7 of the Charter

[158] The defence argument regarding breaches of ss. 11(d) and 7 of the Charter is the following:

the police had a duty to preserve the video evidence and through carelessness, failed to do so. As such, the video was destroyed before the defence even had a chance to view it. The video would have likely assisted Ms. Jurmain, in meeting the case against her. Since she is unable to access it, Jackie Jurmain's right to make a full answer in defence, cannot be fulsomely exercised by her.

[159] Specifically, the defence submits that the video would have assisted the court to determine the credibility of the witnesses regarding "the magnitude of the alleged collision and even, the demeanor of Ms. Jurmain". It would have also helped the court to assess Officer Hum's credibility regarding the damage to Ms. Jurmain's car.

[160] The defence argues that "PC Hum was negligent and careless by failing to ensure that the video was collected promptly".

[161] Officer Kovacevic said that they were investigating a property damage accident. The video did not disclose evidence of damage to the cars, so she thought that it was irrelevant to their investigation.

[162] Regarding the impaired driving charge, Officer Kovacevic said that the video just showed Ms. Jurmain standing outside of her car. Someone yelled that she was drunk. But she was not doing anything that made her appear intoxicated. Therefore, the video would not disclose anything more than what Officer Kovacevic said about how Ms. Jurmain appeared on it, which is favourable to the defence.

[163] The evidence shows that in the circumstances there was nothing that Officer Kovacevic could do to obtain a copy of the video. She tried to get Ms. Screves to send it to one of the traffic accident investigators, but she did not know how to do it. She did not use her personal phone to try to get a copy of the video because they are instructed not to use their personal phones to collect evidence. In addition, she does not have video on her phone.

[164] After they booked in Ms. Jurmain, she told the traffic office that Ms. Screves had a video. She assumed that they would get it, so it was not something that she had to secure at the time. She also told the investigators in the detective office that Ms. Screves was reluctant to hand over the video.

[165] Lastly, she told the investigators that Ms. Screves had a video on her cell phone, but that she was not technologically adroit. She did not know how to send it to them or make it available to them.

[166] I find that Officer Kovacevic did everything that was reasonable in the circumstances to secure the video.

[167] Officer Lennon oversaw the disclosure process. He said that one of the arresting officers on the case told him on the night of Ms. Jurmain's arrest that "there were (sic) potential video of the incident … there was possible (sic) a video of the incident". One of these officers also told him that Ms. Screves did not want to be involved in the case. That was the reason that the arresting officers did not obtain the video on the night of the arrest.

[168] He contacted Ms. Screves either on the night of the arrest or the day after. He asked her if she had a video recording of the incident. Ms. Screves did not want to speak to him. He tried to persuade her to cooperate, but she did not want to.

[169] Officer Lennon was not sure that the video contained relevant evidence. The officers that told him about the existence of the video told him that it was a "potential" or "possible" video of the incident.

[170] Nevertheless, he spoke to Ms. Screves twice more to try to obtain the video. The third time that he spoke with her she told him that she had lost the phone that had the video.

[171] In R. v. Hersi, the Ontario Court of Appeal dealt with a case in which the defence made a motion for a stay of proceedings based on a breach of s. 7.

[172] The motion "focused on the UC's destruction of certain text messages between himself and the appellant, and on the police failure to download the data from the UC's cellphone at the end of the investigation. The UC had been given a specific cellphone to use during the investigation".

[173] The court stated that in applications under s. 7 of the Charter for lost or destroyed evidence the court must first determine whether the loss or destruction breached the accused's right to make full answer and defence. If it did, then the court proceeds to determine the appropriate remedy (paragraph 25).

[174] The court held that the loss or destruction of evidence will constitute a breach of the accused's right to make full answer and defence if the material was "disclosable under the broad relevance standard established in R. v. Stinchcombe" and "the prosecution fails to show that the loss or destruction of the material was not the consequence of 'unacceptable negligence' by the police" (paragraph 26).

[175] The case at bar deals with evidence that was not collected, rather than evidence that was collected and then lost or destroyed. However, the principles set down in Hersi can guide me in determining the defence's application under s. 7.

[176] In the case at bar, the defence submitted that "through carelessness" the police failed to preserve the video. Further, the video "would have likely assisted Ms. Jurmain, in meeting the case against her".

[177] Hersi found that "The phrase "unacceptable negligence" suggests conduct which is more than merely negligent ... The more obvious the importance of the evidence, the higher will be the degree of care expected of reasonable police officers".

[178] The defence argued that the video would have assisted the court to determine the credibility of the witnesses regarding "the magnitude of the of the alleged collision and even, the demeanor of Ms. Jurmain". It would have also helped the court to assess Officer Hum's credibility regarding the damage to Ms. Jurmain's car.

[179] This submission ignores the fact that Ms. Screves told Officer Kovacevic that she took a videotape of Ms. Jurmain once she got out of her car after she parked. Therefore, it did not capture Ms. Jurmain's driving. Furthermore, Officer Kovacevic said that the video did not depict any damage to the cars, so it could not have any effect on Officer Hum's credibility in that regard.

[180] Nor would the video have helped the defence to better portray Ms. Jurmain's demeanour. Officer Kovacevic testified that the video just showed Ms. Jurmain standing outside of her car. She was not doing anything that made her appear intoxicated. The video could not have provided more favourable evidence for the defence than Officer Kovacevic's evidence regarding her demeanour.

[181] I find that the video was disclosable. However, based on the evidence, I find that the loss or destruction of it did not interfere with Ms. Jurmain's right to make full answer and defence.

[182] In addition, the Crown has shown that the fact that it was not obtained, or eventually lost by Ms. Screves, was not because of unacceptable negligence by the police.

[183] Therefore, after considering all the circumstances I find that the defence did not prove on a balance of probabilities that the police breached Ms. Jurmain's rights under ss. 11(d) and 7 of the Charter. These applications are dismissed.

Section 10(b) of the Charter

Informational Component and Timing of Giving s. 10(b) Rights

[184] The defence argues that "S.10(b) of the Charter became an issue immediately prior to, and after Ms. Jurmain's arrest on the Impaired Driving charge".

[185] According to the defence, the first violation of Ms. Jurmain's rights under s. 10(b) occurred "when Ms. Jurmain was forced to submit to an unlawful ASD demand and test during the violation".

[186] I am not certain what this means. Does it mean that the police breached her rights by forcing her to submit to an unlawful ASD demand and breath test, or that they breached her rights during the test?

[187] In paragraph 57 of her written submissions, defence counsel states:

… once the right to counsel is in play, there no longer exists any reason or authority in law for the roadside screening device demand.

[188] She cites R. v. Mitchell, 2005 ONCJ 133, [2005] OJ No 1761, R. v. Ashton, 2004 ONCJ 187, [2004] OJ No 3810 at paras 20-22, 31, as authority for this proposition.

[189] My understanding of these cases is that once an officer arrests a person they cannot just proceed to make an ASD breath demand and administer a breath test without first giving the accused rights to counsel. Upon arrest, they must give the person rights to counsel.

[190] In Mitchell the officer made a demand for breath samples into an ASD. Mr. Mitchell refused to give a breath sample. The officer arrested him for refusing to give a breath sample. Then the officer put Mr. Mitchell in the cruiser and repeated the demand. Mr. Mitchell complied and failed the test. Then the officer arrested him for the additional offence of impaired driving. At this point he read him his rights to counsel.

[191] In paragraph 17 of Brophy J.'s decision, he states that:

It is clear law that 10(b) rights are not necessary for the roadside screening demand process and in my view having taken control of Mr. Mitchell and having placed him in the cruiser, the officer was entitled to then proceed with the primary investigation and to secure the roadside screening device sample. But having arrested on the refusal, I believe that it then became necessary to provide rights to counsel. (emphasis added)

[192] In paragraph 18, Brophy J. cited R. v. Ashton where he says the court held that an arrest "ends the authority of police to demand a screening breath sample without first complying with 10(b) obligations".

[193] I find as a fact that although Officer Hum did not complete his reading of the ASD breath demand because Ms. Jurmain ran away saying that she would not do it, he substantially completed the demand. That is, he completed enough of the demand to communicate to Ms. Jurmain what he was demanding that she do. This is borne out by his evidence that as he was reading the demand she walked away saying that she was not going to do it. Obviously, she understood what he was demanding that she do.

[194] I refer to Justice Kenkel's text, Impaired Driving in Canada, (5th edition), pages 171, 172 where he provides ample authority for the proposition that "It is not necessary that a demand be made in any particular form. A demand should be stated in language that is easy to understand so as to clearly impart to the person to whom it is given exactly what is required of him".

[195] I find as a fact that Officer Hum made the ASD breath demand on Ms. Jurmain before he arrested her for impaired driving. I further find as a fact that he read enough of the ASD breath demand to her before she walked away to communicate the essence of the demand to her. Therefore, it was a complete demand. After he arrested her he did not have to make another ASD breath demand as he did. The second demand was superfluous. Therefore, this is not a case of an ASD breath demand being made after the accused has been arrested.

[196] Officer Hum testified that after he arrested Ms. Jurmain for impaired driving he put her in his cruiser and read her the rights to counsel at 4:14 hrs. Ms. Jurmain said that she wanted to call a lawyer then. He went to get her phone but did not give it to her. Then, he made the second, superfluous demand for a breath sample into an ASD.

[197] Therefore, the case at bar is distinguishable from Mitchell and Ashton. In the case at bar, when Officer Hum made the first ASD breath demand, he had not yet arrested Ms. Jurmain.

[198] The jurisprudence establishes that 10(b) rights are suspended for a brief period between when an officer makes a demand for breath samples into an ASD and the breath tests are administered. In the case at bar, Officer Hum's arrest of Ms. Jurmain for impaired driving is an intervening factor that superseded this grace period.

[199] Despite having made an ASD breath demand and therefore being in s. 10(b) limbo, as soon as he arrested Ms. Jurmain for impaired driving her s. 10(b) rights jumped the que and Officer Hum became obligated to give Ms. Jurmain her rights to counsel immediately.

[200] What did he do? His evidence was that as soon as he arrested her he "would have said, do you want to speak to a lawyer" and waited for a response. He did not make notes regarding this. What he said to her was just "off the top of my head".

[201] Then he took her to his cruiser at once where he gave her the rights to counsel at 4:14 hrs. from his memo book. Therefore, I find that he complied with the informational component of the rights to counsel.

The "Immediacy Component" of s. 10(b)

[202] Officer Gill arrived with the ASD at 16:25 hrs. and administered the breath test. This was 11 minutes after Officer Hum read Ms. Jurmain her rights to counsel.

[203] The defence argues that Officer Hum breached the "immediacy" component of s. 10(b). She states that the term "forthwith" in the Criminal Code (s. 254(2)(b), as it then was) imposed a component of immediacy that the Crown must prove beyond a reasonable doubt for the ASD breath demand to be valid. The section states that the breath demand must be to provide a breath sample forthwith.

[204] The defence relied on R. v. Beattie. In paragraph 6, Duncan J. noted that:

A motorist in detention for a roadside breath screening test usually does not have a right to consult counsel: R. v. Thomsen, [1988] 1 S.C.R. 640. Such right is suspended as a reasonable limit given the circumstances and requirements of roadside testing which authorizes and requires that the test be conducted "forthwith". But if it is reasonably practical in the circumstances for the detainee to consult counsel, then the rationale for suspending the 10b right proclaimed in Thomsen supra falls away: R. v. Cote (1992), 70 C.C.C. (3d) 280 (Ont CA). Accordingly, "forthwith" has come to be defined in relation to accessibility of counsel. If the time and circumstances are such that there would be a reasonable opportunity to consult counsel, then the testing is not done "forthwith": R. v. Latour (1997), 116 C.C.C. (3d) 279 (Ont CA); R. v. George (2004), 187 C.C.C. (3d) 289 (Ont CA).

[205] In Beattie the arresting officer made a demand for breath samples into an ASD. He did not give the accused his s. 10(b) rights at that time. He waited for an ASD to arrive on scene. When it did, he administered the ASD breath test. Twenty minutes had passed since he had made the breath demand. Justice Duncan found that in the circumstances of that case it was too long to wait to inform the accused of his rights to counsel. Consequently, the police violated the accused's rights under s. 10(b).

[206] The wait in Beattie is almost two times the wait in the case at bar. I acknowledge that the evaluation of the wait time is affected by the circumstances of each case. For example, see the cases to which Duncan J. refers in paragraph 10 of Beattie. I took this into consideration.

[207] Recently, in R. v. MacMillan the court observed that "The screening device breath demand provision in Section 254(2) of the Criminal Code stipulates that the sample is to be given "forthwith", interpreted to mean after a brief time, if not immediately, following the demand".

[208] After evaluating the circumstances in the case at bar, I find that the 11 minutes between the time Officer Hum made the ASD breath demand on Ms. Jurmain and the time that Officer Gill administered the test to her was but a "brief time". It did not provide a realistic opportunity to consult with counsel.

[209] Consequently, I find that Officer Hum did not breach Ms. Jurmain's rights to counsel. The defence application is dismissed.

Conclusion

[210] Furthermore, after considering all the evidence, the law and counsels' submissions, I find that the Crown proved both charges beyond a reasonable doubt. The evidence clearly establishes that Ms. Jurmain was driving with more than 80 milligrams of alcohol in 100 millilitres of blood.

[211] I find further that the evidence establishes that Ms. Jurmain ability to operate a motor vehicle was impaired by alcohol. In R. v. Stellato, the court held that "If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out." I find that the Crown proved this beyond a reasonable doubt.

[212] Therefore, I find Ms. Jurmain guilty as charged and register convictions on both charges. However, I enter a conditional stay on the impaired driving charge.

Released: September 11, 2019

Signed: Justice J.W. Bovard