Court File and Parties

Ontario Court of Justice

Date: 2019-11-26

Court File No.: Hamilton 17-9472

Between:

Her Majesty the Queen

— and —

Cheryl Odrowski

Before: Justice J.P.P. Fiorucci

Heard on: January 24th and March 26th, 2019

Submissions made on: June 10th, 2019

Reasons for Judgment released on: November 26, 2019

Counsel:

• S. Kim, counsel for the Crown
• N. Schachter, counsel for the defendant Cheryl Odrowski

FIORUCCI J.:

INTRODUCTION

[1] On June 22nd, 2017, Cheryl Odrowski attended a concert. After the concert, she returned to her vehicle which was parked in a nearby parking lot. She drove over a sidewalk to join the flow of traffic on the roadway. Shortly thereafter, she drove into an intersection. She was unable to continue through the intersection because traffic was backed up and the light turned red. Ms. Odrowski reversed her vehicle. When she did so, her vehicle struck a vehicle that had stopped behind her at the red light. The passenger in that vehicle called the police.

[2] A police officer who attended the scene formed grounds to make a demand that Ms. Odrowski provide a sample of her breath into an Approved Screening Device (ASD). The officer delayed making the ASD demand for seven minutes while he retrieved the ASD and performed a self-test on the device in the presence of Ms. Odrowski.

[3] When Ms. Odrowski failed the ASD test, the police officer arrested her for Over 80. He then delayed reading her the rights to counsel for eight minutes. During the eight minutes, the police officer put the ASD away, had another female police officer search Ms. Odrowski, and he jotted some things down in his notebook.

[4] Ms. Odrowski provided breath samples at the police station. Her breath readings exceeded the legal limit. Ms. Odrowski was charged with Impaired Operation or Care or Control of a Motor Vehicle and Over 80, contrary to sections 253(1)(a) and (b) of the Criminal Code.

[5] Ms. Odrowski entered not guilty pleas to both charges. She alleged violations of her Charter rights and sought exclusion of the breath readings from evidence. The prosecution was conducted as a blended voir dire. I heard the evidence pertaining to the alleged Charter breaches blended with the evidence relating to the trial issues. At the conclusion of the trial, Crown counsel conceded the following breaches of Ms. Odrowski's Charter rights:

a) A breach of section 8 of the Charter based on the police failing to make the ASD demand "forthwith" upon forming the requisite grounds for the demand. As I will explain in my analysis, this delay in reading the ASD demand also resulted in infringements of Ms. Odrowski's section 9 and 10(b) Charter rights; and

b) A breach of section 10(b) of the Charter because the police did not read Ms. Odrowski her rights to counsel immediately upon her arrest.

[6] I must decide the following issues:

a) Do the infringements of Ms. Odrowski's rights warrant exclusion of the breath readings pursuant to section 24(2) of the Charter?

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

ANALYSIS AND ISSUES

The Charter Infringements

a) Delay in Reading the ASD Demand to the Accused

[7] P.C. Joseph Pala of the Hamilton Police Service was dispatched to attend the scene of the motor vehicle collision at 11:43 p.m. He arrived on scene within five minutes. By 11:49 p.m., P.C. Pala had developed grounds to make an ASD demand to Ms. Odrowski. However, he read the demand to Ms. Odrowski at 11:56 p.m., seven minutes after forming his grounds.

[8] In the seven minutes between forming the grounds and reading the ASD demand, P.C. Pala retrieved the ASD, and conducted a self-test on the device at 11:52 p.m. to ensure that it was operating properly. P.C. Pala conducted this self-test in the presence of Ms. Odrowski. He testified that he does the test on himself "so that the person has an opportunity to see what it entails and to see how it's required to use it….and to just give instructions while being able to show them".

[9] The constitutional validity of section 254(2) of the Criminal Code depends on "its implicit and explicit requirements of immediacy". It is implicit that the ASD demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The ASD test must be administered forthwith as well. Compliance with the "forthwith" requirement "justifies what would otherwise be sustained as violations of ss. 8, 9, and 10(b) of the Charter".

[10] As the Ontario Court of Appeal noted in R. v. Quansah:

So long as the demand is validly made pursuant to s. 254(2) - that is, so long as it is made 'forthwith"- for Charter purposes there is no unjustified seizure or arbitrary detention or breach of the requirement to advise the detainee of his or her right to counsel. This is because this statutory detection and enforcement procedure constitutes a reasonable limit on Charter rights, given the extreme danger represented by unlicensed or impaired drivers on the roads.

[11] In Quansah, the Court of Appeal listed five things that courts must consider when assessing whether there has been compliance with the "forthwith" requirement in section 254(2). First, courts must be mindful of "Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights". Courts must perform the analysis of the forthwith or immediacy requirement contextually. The context of Ms. Odrowski's case involves P.C. Pala formulating his reasonable suspicion at the roadside with an ASD available to him in one of the cruisers that was present at the scene. The ASD was immediately available to P.C. Pala to present to Ms. Odrowski once the self-test had been performed, the demand had been made, and the device was ready to accept a sample from Ms. Odrowski.

[12] Second, the immediacy requirement commences at the point when the officer forms his or her reasonable suspicion. This factor requires that the demand "be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body". An application of this factor from Quansah leads to the finding that P.C. Pala did not make the section 254(2) ASD demand forthwith. P.C. Pala did not make the demand promptly once he formed his reasonable suspicion at 11:49 p.m. There was no reason for P.C. Pala to delay making the demand until he had retrieved the ASD and performed the self-test.

[13] Since P.C. Pala's demand was not validly made pursuant to section 254(2) of the Criminal Code, there was an unjustified seizure of Ms. Odrowski's breath, and she was arbitrarily detained, without the police having complied with the requirement to advise her of her rights to counsel. Put another way, the police must make a lawful demand in order to avoid infringing the protections enshrined in sections 8, 9 and 10(b) of the Charter. The unlawful demand made by P.C. Pala resulted in violations of Ms. Odrowski's section 8, 9 and 10(b) Charter rights.

[14] Although I have found that P.C. Pala's delayed demand contravened the forthwith or immediacy requirement in section 254(2), I will go on to consider the remaining factors set out in Quansah because they are relevant to assessing the Grant factors on the section 24(2) analysis. The third factor in Quansah addresses the time between the formulation of the officer's reasonable suspicion through to the detainee's response to the officer's demand by refusing or providing a sample. The Court of Appeal stated that forthwith "connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given". The Court of Appeal went on to state:

In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).

[15] Although P.C. Pala contravened the forthwith requirement by delaying the ASD demand for seven minutes, he performed tasks during that seven-minute period which were reasonably necessary to enable him to discharge his duty as contemplated by section 254(2). He retrieved the ASD that was on scene and conducted a self-test in the presence of Ms. Odrowski, which gave her an opportunity to observe what was required of her to give a sample of her breath into the device. Ultimately, a total of eight minutes elapsed between P.C. Pala forming his reasonable suspicion (11:49 p.m.) and Ms. Odrowski providing her breath sample into the ASD (11:57 p.m.).

[16] The fourth criterion in Quansah requires courts to take into account all of the circumstances, which may include a reasonably necessary delay where the breath test cannot immediately be performed. In this case, P.C. Pala was not dealing with a situation where the ASD was not immediately available, and had to be brought from another location, nor was this a case where a short delay was necessary, for instance, to ensure an accurate result or to address an "articulated and legitimate safety concern". The time it took for P.C. Pala to retrieve the ASD from the cruiser and perform the self-test was a delay that was no more than was reasonably necessary to enable him to properly discharge his duty.

[17] The final factor that Quansah requires courts to consider "is whether the police could realistically have fulfilled their obligation to implement the detainee's section 10(b) rights before requiring the sample". This factor is most applicable to cases where the officer making the ASD demand is not in a position to require immediate compliance with the demand, for instance, because an ASD is not immediately available.

[18] Defence counsel submits that there was a reasonable opportunity for Ms. Odrowski to consult with counsel before providing her sample into the ASD. The police knew that she had a cell phone in her possession because she was using it to take pictures of the damage to the vehicles. Accordingly, counsel for Ms. Odrowski submits that she could have been permitted to consult with counsel in private before providing the sample.

[19] I reject this argument. As I stated above, P.C. Pala performed tasks in the eight-minute period between suspicion and administration of the ASD test that caused delay that was no more than reasonably necessary to properly discharge his duty. Had Ms. Odrowski been advised of her right to consult with counsel and been provided with an opportunity to do so at the roadside, I find that there would not have been a reasonable opportunity for this consultation to take place because the period of delay was simply too short. P.C. Pala was in a position to require immediate compliance with the demand as he had an ASD in his possession.

[20] Therefore, I find that a consideration of the fifth factor in Quansah does not support a finding that the "forthwith" requirement was breached because there was no realistic opportunity for the police to implement Ms. Odrowski's section 10(b) rights in these circumstances.

[21] To summarize, having considered the five factors listed in Quansah, the violation of Ms. Odrowski's section 8, 9 and 10(b) Charter rights resulted from P.C. Pala's failure to promptly make the ASD demand when he formed the requisite reasonable suspicion for the demand.

b) Delay in Reading Rights to Counsel to the Accused After the Arrest

[22] When an individual is arrested, section 10(b) is engaged and guarantees that individual the right to retain and instruct counsel without delay, and to be informed of that right.

[23] In Suberu, the Supreme Court of Canada held that, "[s]ubject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention". The Court noted that, "[i]n order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately"".

[24] Ms. Odrowski provided a sample of her breath into the ASD at 11:57 p.m. The result of this test was a "fail". P.C. Pala arrested Ms. Odrowski at 11:59 p.m., and read her the rights to counsel and caution approximately eight minutes later, at 12:07 a.m. At that time, Ms. Odrowski advised the officer that she did not have a lawyer and she declined the opportunity to speak with duty counsel.

[25] When asked why eight minutes elapsed between the arrest and the reading of the rights to counsel, P.C. Pala explained that he needed to put the ASD away, and the female officer, P.C. Katherine Mercer, had to conduct a cursory search of Ms. Odrowski prior to placing her in the rear of the cruiser. Ms. Odrowski was standing outside P.C. Pala's cruiser during this cursory search.

[26] P.C. Pala testified that, during this eight-minute interval, he also jotted a couple of things down in his notebook. P.C. Pala read the rights to counsel to Ms. Odrowski once she had been placed into the rear of the cruiser, and he had entered the cruiser and sat in the driver's seat.

[27] P.C. Pala agreed with Defence counsel's suggestion that he could have read Ms. Odrowski her rights to counsel once he had arrested her and placed handcuffs on her. P.C. Pala agreed that he did not have to wait for her to be searched and placed in the rear of the cruiser. In re-examination, P.C. Pala explained why he waited:

Q. …why is it, then, that you did wait until about seven or eight minutes later to do that if you didn't have to? Why is that?

A. I waited because typically I like to have one thing happening at a time. So while that search is happening, I'm not in the practice of giving someone their rights to counsel while they're being searched, for example. Any questions or any conversation that happened during that time would be related to what's going on with that search. So, you know, whether the person has something on them, it's all questions related to what's happening. Once I have someone in a more calm situation, once they have a couple moments to realize what's happening after they've been arrested, that is an opportunity to give them their rights and (sic) counsel. It's a higher likelihood they're going to understand it and if they have any questions they're going to be able to ask them in a more controlled environment. And that's typically how I give people their rights to counsel and caution, when it's available to me.

Q. Okay. Just can you- just finish up; when you said, 'When it's available to you,' just….

A. In that scenario where it's happening right next to my cruiser…which is where we were in this particular situation….once the search was complete and once the equipment was put away and once I was able to jot down a couple of things in my notebook and she was in-we were both in the vehicle and I had some light in my car, I immediately read both the caution and the rights to counsel.

[28] Defence counsel questioned P.C. Pala about his understanding of the law as it relates to when rights to counsel must be read to a person who has been arrested:

Q. And just with regards to that last question, you're aware that the law says that you have to provide someone's – someone that you've arrested with their right to speak to a lawyer immediately, right?

A. As soon as practicable, yeah.

[29] During re-examination, P.C. Pala confirmed that his understanding was that he had to give Ms. Odrowski her rights to counsel "as soon as practicable".

[30] The eight-minute delay between the arrest and P.C. Pala reading Ms. Odrowski her rights to counsel resulted in a breach of her section 10(b) Charter rights. There was no justifiable reason for P.C. Pala to delay providing the rights to counsel, such as officer or public safety concerns. Furthermore, the officer mistakenly believed that his duty was to provide rights to counsel to Ms. Odrowski "as soon as practicable", notwithstanding the clear pronouncement from the Supreme Court of Canada, nearly seven years before Ms. Odrowski's arrest, that rights to counsel are to be provided "immediately" upon arrest.

Section 24(2) of the Charter

[31] The police violated Ms. Odrowski's Charter rights in the following ways:

(1) The ASD demand was not made forthwith, contrary to the statutory requirement to do so. As the demand was not made forthwith, it was not valid and did not justify a failure to provide section 10(b) rights to counsel. The continued detention, without rights to counsel, was an arbitrary detention which violated section 9 of the Charter. The seizure of Ms. Odrowski's breath into the ASD was unlawful, amounting to a section 8 Charter violation. As the ASD breath test was not obtained under the statutory authority of section 254(2) of the Criminal Code, the police lacked the reasonable grounds necessary for making the section 254(3) Criminal Code breath demand. Accordingly, the evidence of the blood alcohol concentration of Ms. Odrowski was obtained as a result of an unreasonable search and seizure, in violation of section 8 of the Charter.

(2) P.C. Pala failed to inform Ms. Odrowski of her rights to counsel "without delay", which infringed section 10(b) of the Charter.

[32] The test for exclusion of evidence under section 24(2) of the Charter was set out by the Supreme Court of Canada in R. v. Grant. It requires me to assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct),

(2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and

(3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

a) The Seriousness of the Charter-infringing Conduct

[33] This inquiry requires "an evaluation of the seriousness of the state conduct that led to the breach". In Grant, the Supreme Court of Canada held that "[t]he main concern is to preserve public confidence in the rule of law and its processes". The touchstone of the analysis for this first inquiry of Grant is whether the admission of the evidence would bring the administration of justice into disrepute by sending a message that the courts "effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of the unlawful conduct".

[34] State conduct varies in seriousness, "with inadvertent or minor violations of the Charter" at one end of the spectrum and "wilful or reckless disregard of Charter rights" at the other end of the spectrum. In R. v. Harrison, the Supreme Court of Canada described the spectrum of police conduct as follows:

The metaphor of a spectrum used in R. v. Kitaitchik, 166 C.C.C. (3d) 14 (Ont. C.A.), per Doherty J.A., may assist in characterizing police conduct for purposes of this s. 24(2) factor:

Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights.... What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct.

[35] In R. v. Jennings, the Ontario Court of Appeal described the spectrum of police conduct as "mere technical breaches at one end to bad faith violations at the other."

[36] In this case, I find that P.C. Pala's conduct amounted to violations of the Charter which fall in the middle of the spectrum of seriousness. I make this finding both in relation to his failure to read the ASD demand promptly upon forming his reasonable suspicion and his failure to read the rights to counsel immediately after arresting Ms. Odrowski.

[37] Although P.C. Pala improperly delayed reading the ASD demand for seven minutes, during the last four of those seven minutes, from 11:52 p.m. to 11:56 p.m., he was performing a self-test of the ASD in the presence of Ms. Odrowski so that she would have an opportunity to see what was required of her to provide a sample into the device. This was not an adequate substitute for reading the demand itself, but it does show that P.C. Pala was mindful of his obligation to convey to Ms. Odrowski what was required of her, and why she was being detained. This is supported by the evidence of Ms. Odrowski herself. She testified that P.C. Pala "said he's going to do ….a roadside test and he went and got his gear, administered the test, placed me under arrest…".

[38] The delay in making the demand was brief and, during this period of delay, P.C. Pala performed tasks that were reasonably necessary to enable him to discharge his duty under section 254(2), which included being in a position to accept a breath sample from Ms. Odrowski promptly once she responded to the demand by agreeing to provide a breath sample. Ultimately, the ASD sample was received within eight minutes of P.C. Pala formulating his reasonable suspicion.

[39] There was no evidence led regarding P.C. Pala's knowledge, or lack of knowledge, of his obligation to promptly make an ASD demand once he forms his suspicion. However, a review of the totality of P.C. Pala's evidence suggests that he was not aware of this obligation on the police, which resulted in him violating "well-established rules governing state conduct". P.C. Pala's apparent lack of understanding of this standard increases the seriousness of the violation.

[40] Similarly, P.C. Pala violated a well-established rule governing state conduct by not reading the rights to counsel to Ms. Odrowski immediately after he arrested her. Police officers should know that the rights to counsel must be provided immediately, barring the exceptional circumstances listed above. P.C. Pala's evidence that he believed he was required to provide rights to counsel "as soon as practicable" demonstrates a misunderstanding of this well-established Charter standard.

[41] I do not find that P.C. Pala acted in bad faith. However, since P.C. Pala's conduct violated well-established Charter standards, I do not find that he acted in good faith. As the Supreme Court of Canada recently noted in R. v. Paterson, good faith is more than the absence of bad faith:

While "'[g]ood faith' on the part of the police will ... reduce the need for the court to disassociate itself from the police conduct" (Grant 2009, at para. 75), good faith errors must be reasonable (R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59). This Court has cautioned that negligence in meeting Charter standards cannot be equated to good faith (Grant 2009, at para. 75). Even where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct (R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 24-25).

[42] P.C. Pala was a well-meaning officer. His reason for delaying the reading of the rights to counsel demonstrates that he wanted to ensure that Ms. Odrowski could focus on any questions relating to the search, and then be in the calmer environment of the cruiser when the rights to counsel were read to her. In P.C. Pala's view, this would make it more likely that Ms. Odrowski would understand the rights to counsel and would allow her to ask any questions relating to those rights. This does not condone the violation, but it does demonstrate that the officer was not acting in bad faith.

[43] There is no evidence in this case that the actions of P.C. Pala, in relation to delaying the reading of the ASD demand or the rights to counsel after arrest, "reflect a systemic disregard of individual rights" by the Hamilton Police Service. However, the fact that P.C. Pala committed two clear violations of well-established rules governing state conduct is troubling. I find that the first prong of the Grant analysis pulls mildly toward exclusion of the breath readings in this case.

b) The Impact of the Breach on the Charter-protected Rights of the Accused

[44] This prong of the analysis "calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed". The Supreme Court of Canada noted that, "[t]he impact of a Charter breach may range from fleeting and technical to profoundly intrusive". As the seriousness of the impact on the accused's protected interests increases, so does the risk that admission of the evidence would breed public cynicism and bring the administration of the justice into disrepute.

[45] On this part of the analysis, a court must "look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests". For example, as the Supreme Court of Canada stated in Grant:

….an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.

[46] In Ms. Odrowski's case, the police had sufficient grounds to conduct the search. However, P.C. Pala's failure to read the ASD demand "forthwith" resulted in an unreasonable search and seizure of Ms. Odrowski's breath into the ASD, in violation of section 8 of the Charter. The unlawfully obtained ASD sample provided the grounds for the section 254(3) Criminal Code breath demand. Accordingly, the samples of breath Ms. Odrowski provided into the Intoxilyzer, which showed her blood alcohol concentration, were also obtained in violation of her section 8 rights. The collection of Ms. Odrowski's breath samples by means of the ASD and the approved instrument amounted to no more than a minimal intrusion upon her privacy, bodily integrity and human dignity.

[47] The delayed ASD demand also resulted in a very brief arbitrary detention, thereby violating Ms. Odrowski's section 9 Charter right. The "forthwith" violation had really no impact on Ms. Odrowski because she knew that she was being detained for the purpose of providing a roadside breath sample to P.C. Pala. Nothing occurred as a consequence of this very brief arbitrary detention. Ms. Odrowski was at the roadside with P.C. Pala who, by conducting the self-test, was essentially providing instructions to Ms. Odrowski regarding what was required of her to provide the breath samples.

[48] I pause to note that Ms. Odrowski testified in this case, and her counsel notified the court that her evidence was to apply to both the Charter issues and the issues on the trial proper. Ms. Odrowski did not advance any evidence regarding the impact that any of the Charter violations had on her. The impact of the arbitrary detention was minimal, as was the impact of the remaining section 10(b) violations, which I will now discuss.

[49] With respect to the section 10(b) Charter violation that resulted from the delayed ASD demand, the impact was minimal because, as I stated above, I find that there was no realistic opportunity for the police to implement Ms. Odrowski's section 10(b) rights in the few short minutes between P.C. Pala forming his reasonable suspicion and the administration of the ASD test. Furthermore, there was no evidence from Ms. Odrowski that, had she been provided with rights to counsel before she took the ASD test, she would have exercised her right to speak with counsel. Put another way, "[t]here is no evidence that the delay impacted [her] in deciding whether to speak to counsel or whom she should speak to".

[50] In Suberu, the Supreme Court of Canada stated that the right to counsel is meant to assist detainees to regain their liberty, "and guard against the risk of involuntary self-incrimination". There is no evidence that any statements were sought or taken from Ms. Odrowski in this brief period between formulation of the reasonable suspicion and the making of the ASD demand.

[51] The section 10(b) violation arising from the failure to provide rights to counsel immediately after the arrest also had a minimal impact on Ms. Odrowski's Charter-protected interests. Again, there is no evidence that during the eight-minute delay any statements were sought or taken from Ms. Odrowski. Ms. Odrowski did not advance any evidence that she would have invoked her right to counsel had she been told about it eight minutes earlier than she was. Therefore, there is no evidence that the delay impacted her decision as to whether or not to speak with counsel, or whom she should speak to.

[52] The second prong of the Grant analysis strongly favours admission of the breath readings in this case.

c) Society's Interest in the Adjudication of the Case on its Merits

[53] The third prong of the section 24(2) analysis relates to society's interest in the adjudication of the case on its merits. Breath samples are reliable and necessary evidence in an Over 80 prosecution. The truth-seeking function of the criminal trial process would be undermined by an order excluding the breath readings. It would result in the Crown being unable to prove the allegation that Ms. Odrowski operated or had care or control of a motor vehicle with a blood alcohol concentration in excess of the legal limit.

[54] This Grant factor requires courts to "consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence". As the Supreme Court of Canada stated in Grant, "the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution".

[55] The breath samples are reliable evidence that is indispensable to the Crown's case. This factor strongly favours admission of the evidence.

d) Balancing of the Grant factors

[56] I begin by summarizing my findings on the three factors in Grant. The police conduct, which included a failure to read the ASD demand "forthwith" and a failure to provide the rights to counsel immediately upon arrest, falls in the middle of the spectrum of seriousness. Although there is no evidence of a systemic disregard of individual rights, P.C. Pala violated well-established rules governing state conduct. This first factor mildly favours exclusion of the evidence. The Charter infringements had a minimal, almost negligible, impact on the Charter-protected interests of Ms. Odrowski, which strongly favours admission of the evidence. The highly reliable breath sample evidence tendered, which is vital to the Over 80 prosecution, weighs strongly in favour of admission of the evidence.

[57] In Harrison, the Supreme Court of Canada offered guidance for trial judges who are required to perform the balancing exercise for the section 24(2) analysis:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[58] In R. v. McGuffie, the Ontario Court of Appeal stated the following regarding the balancing of the section 24(2) factors:

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: [citations omitted]. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: [citations omitted]. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: [citation omitted].

[59] In this case, I must take into account the cumulative effect of the various Charter breaches. The fact that there are multiple Charter violations does not automatically result in exclusion of the evidence. In my view, excluding the breath readings due to the combined Charter breaches in the circumstances of this case would not enhance the repute of the administration of justice. P.C. Pala's conduct, while concerning, is not conduct from which the court must dissociate itself. The Charter-infringing conduct had minimal impact on Ms. Odrowski's interests, and society has a collective interest in ensuring that Over 80 charges are adjudicated on their merits.

e) Disposition of the Section 24(2) application to exclude evidence

[60] For the reasons set out above, I find that the admission of the breath sample evidence would not bring the administration of justice into disrepute. Ms. Odrowski's application to exclude that evidence is dismissed. As the breath readings are admitted into evidence in the proceedings, and the other elements of the Over 80 offence have been made out, Ms. Odrowski is found guilty of that offence.

Impaired Operation or Care or Control by Alcohol

[61] With respect to the charge of Impaired Operation or Care or Control, the Crown is required to establish beyond a reasonable doubt some degree of impairment to operate a motor vehicle, from slight to great. Slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether the impairment impacts on perception or field of vision, reaction or response time, judgment, or regard for the rules of the road. A court "must not fail to recognize the fine but critical distinction between 'slight impairment' generally, and "slight impairment of one's ability to operate a motor vehicle'".

[62] A trial judge must consider the cumulative effect of all of the evidence as it relates to the issue of whether a driver's ability to operate a motor vehicle was impaired by alcohol. A trial judge is not to approach the question of impairment as involving a scorecard noting which indicia are present and which are absent. The totality of the circumstances must be considered. The question is not whether there are other possible explanations for individual circumstances, but whether the evidence, taken as a whole, leads to only one reasonable conclusion, that the accused committed the offence of impaired operation.

[63] It is not improper for a trial court to consider evidence that an accused consumed alcohol prior to driving as a factor relevant to the determination of whether an impaired operation charge has been proven. The consumption of alcohol must be a contributing factor to the driver's impairment. In the absence of expert testimony, a court is not permitted to take judicial notice that a person who consumed a certain amount of alcohol prior to driving was impaired.

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

[65] With these principles in mind, I turn to an analysis of the evidence. In this case, Ms. Odrowski testified. I am required to consider and apply the framework enunciated in R. v. W.(D.), which states that:

(1) If I believe the testimony of the accused, I must find her not guilty;

(2) If I do not believe the accused's evidence, but the evidence leaves me with a reasonable doubt, I must find her not guilty;

(3) Even if the accused's evidence does not leave me with a reasonable doubt, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.

[66] I can accept all, some or none of a witness's evidence. I will begin by considering Ms. Odrowski's evidence. I have carefully reviewed and considered the substance of her evidence. I have concluded that I do not believe material aspects of her evidence, nor does her evidence leave me in a state of reasonable doubt on the issue of impaired operation.

[67] Ms. Odrowski testified about the motor vehicle collision. She stated that she was stuck in the middle of the intersection because the traffic light changed, and the traffic was very heavy. According to Ms. Odrowski, there was room behind her, and she looked, and watched, and slowly backed up. Then, her driver's side rear bumper hit the passenger front bumper of the car behind her, which Mr. Kunal Luthra was driving. When she was asked to explain how the collision happened, Ms. Odrowski stated:

I don't know, it was an accident. There was room there initially and I guess he pulled up. I don't - I was watching, I don't know.

[68] When Ms. Odrowski was asked how fast she was travelling, she responded, "barely…..I didn't have far to go, there was- I don't think it would even register on a speedometer". In cross-examination, Ms. Odrowski denied that she accelerated when reversing her vehicle. She reiterated that she backed up slowly and checked to see how much space she had behind her. Ms. Odrowski again expressed her belief that the collision happened because Mr. Luthra moved up "a couple of feet". The following exchange occurred when Crown counsel pressed her further on this issue:

Q. Okay. So, in spite of checking and you were looking to see his vehicle, you don't know and you end up….

A. I don't know, it was an accident, I don't – I've never had an accident before, I don't know what's – I don't know. It happens.

[69] Ms. Odrowski's testimony about the collision is implausible and internally inconsistent. She testified that she was slowly reversing while checking how much space she had, and she initially attributed the collision to Mr. Luthra moving up. When she was pressed further, however, she could not explain why the collision happened, in spite of her checking to see where Mr. Luthra's vehicle was and how much space she had. Mr. Luthra and Ms. Holmes gave consistent evidence on this point, and I accept their evidence.

[70] Mr. Luthra testified that his vehicle was stopped at the line when the light was red. He saw the reverse lights of Ms. Odrowski's vehicle come on. Mr. Luthra honked his horn and then braced for the impact. Ms. Odrowski accelerated in reverse and hit his vehicle. Mr. Luthra stated that he kept his foot on the brake so that his car would not hit any car that might be behind him.

[71] Ms. Holmes's evidence on this point was consistent with Mr. Luthra's. She testified that Ms. Odrowski's vehicle "accelerated quite quickly in reverse and collided with the front of Mr. Luthra's vehicle". Ms. Holmes stated that she had enough time to say to Mr. Luthra "oh, they're backing up". She also testified that Mr. Luthra's vehicle was not moving forward. Rather, they were sitting there and could observe that Ms. Odrowski's vehicle was going to collide with theirs. Ms. Holmes could not recall whether Mr. Luthra honked his horn, but she said it was possible because she remembered his hands being right on the wheel.

[72] I reject Ms. Odrowski's claim that it was Mr. Luthra who suggested that she go to a bank machine to get money to pay for the damage. Mr. Luthra testified that, immediately after he and Ms. Odrowski got out of their vehicles for the first time, she offered to pay for the damage to his vehicle by going to an ATM to withdraw money. Mr. Luthra refused this offer and suggested that they move their vehicles onto the street that had less traffic.

[73] Mr. Luthra went on to testify that he was concerned that Ms. Odrowski might leave the area. According to Mr. Luthra, when they had moved their vehicles and parked, they both got out of their vehicles again. At this point, Mr. Luthra asked if they should go through insurance, at which point, Ms. Odrowski was "freaking out" and, again asking Mr. Luthra to let her go to an ATM to get some money. Although Ms. Holmes could not hear this conversation because she had stayed in the car, she stated that she could tell by Ms. Odrowski's body language, and motions she was making with her arms, that she was pleading with Mr. Luthra. Ms. Holmes did not know what Ms. Odrowski was trying to get Mr. Luthra to do, but she described Ms. Odrowski's behaviour as erratic.

[74] I accept Mr. Luthra's evidence on this point, including his testimony that he was concerned Ms. Odrowski might leave the area. Ms. Holmes's observations of Ms. Odrowski's demeanour and body language offer support for Mr. Luthra's testimony that it was Ms. Odrowski who was pressing the issue of going to a bank machine to pay for the damage to Mr. Luthra's vehicle.

[75] I found Ms. Odrowski's evidence on the above points to be contrived and unbelievable, which calls into question the credibility and reliability of other evidence she gave; for instance, her claim that she stepped into the puddle because she was sore and tired and was soaking wet anyway, and her suggestion that her unsteadiness on her feet was the result of her leg muscles being very tired from work she had done earlier that day, including packing and moving boxes down stairs.

[76] Based on the concerns I have identified with respect to Ms. Odrowski's credibility as a witness, and the reliability of her testimony, I have concluded that I do not believe her evidence, nor does it leave me in a state of reasonable doubt.

[77] Mere disbelief of the accused's evidence does not satisfy the Crown's burden of persuasion. I cannot use disbelief of the accused's evidence as proof of guilt. I must now ask myself whether, on the basis of the evidence which I do accept, the Crown has proven that the accused is guilty of the offence charged beyond a reasonable doubt.

[78] I find that the Crown has proven the Impaired Operation charge beyond a reasonable doubt based on the cumulative effect of all of the evidence that I do accept. The evidence, taken as a whole, leads to only one reasonable conclusion, that Ms. Odrowski's ability to operate a motor vehicle was impaired by alcohol.

[79] Ms. Odrowski drove over a sidewalk to join the flow of traffic. When she could not proceed through the intersection because the light changed, she accelerated quickly in reverse, causing a collision with Mr. Luthra's vehicle, which was stopped at the line. As I noted above, Mr. Luthra and Ms. Holmes gave consistent testimony regarding the circumstances of the collision. Ms. Odrowski's driving conduct is one circumstance which contributes to my finding that her ability to operate a motor vehicle was impaired by alcohol.

[80] Mr. Luthra was the first person to have contact with Ms. Odrowski when the two of them exited their vehicles. I reject Defence counsel's submission that Mr. Luthra exaggerated his testimony regarding his observations of Ms. Odrowski. As I will explain, many of Mr. Luthra's observations were corroborated by other witnesses.

[81] Defence counsel pointed out that during his examination-in-chief, Mr. Luthra described Ms. Odrowski as "very loud" and exaggerated in the way she spoke, but later in cross-examination denied that he had said "loud". This does not cause me concern regarding the overall credibility and reliability of Mr. Luthra's evidence. If anything, it shows that he gave his evidence in a balanced way, by correcting himself when he felt he needed to.

[82] Mr. Luthra noted the smell of alcohol coming from Ms. Odrowski's mouth when he first spoke with her. After they had pulled their vehicles over, and he spoke with her again, he smelled some perfume but, in his words, "it was mostly the alcohol was predominant, especially when she got close and we were speaking to each other you could definitely smell it on her breath".

[83] Mr. Luthra was not the only witness to smell alcohol. P.C. Mercer testified that she was the first officer to arrive on scene. When P.C. Mercer arrived, Ms. Odrowski was seated in her vehicle. P.C. Mercer approached the driver's side window and spoke with Ms. Odrowski. P.C. Mercer observed that Ms. Odrowski's eyes were very bloodshot and she could smell alcohol on Ms. Odrowski's breath when she spoke with her. P.C. Pala testified that he too noted "an odour of alcohol emanating from her breath, her person". The qualified breath technician, P.C. Gerald Blanchard, also noted a "slight odour of alcohol" when he dealt with Ms. Odrowski during the breath testing procedure.

[84] Mr. Luthra and Ms. Holmes both gave evidence about unusual behaviour that Ms. Odrowski exhibited. According to Mr. Luthra, Ms. Odrowski was exaggerated in the way she spoke, and a little hysteric when she suggested that she could go get money from a bank machine. As mentioned earlier, Ms. Holmes noted that Ms. Odrowski's erratic behaviour included body language, and motions with her arms that suggested she was pleading with Mr. Luthra.

[85] Multiple witnesses observed that Ms. Odrowski had difficulties with her balance and was unsteady on her feet. Mr. Luthra observed her to stumble when she walked over to him after getting out of the car the second time. Mr. Luthra also observed that she was swaying and leaning a lot on the cars when she was speaking with him.

[86] Ms. Holmes did not notice any stumbling and could not recall Ms. Odrowski leaning against anything, but she did recall that Ms. Odrowski was walking around a lot. Ms. Holmes also testified that she was on the phone with her father for a large duration of the incident.

[87] As I noted above, P.C. Mercer testified that she was the first officer on scene. When she arrived, Ms. Odrowski was seated in her vehicle. P.C. Mercer recalled that P.C. Pala arrived on scene a few minutes after she did. P.C. Mercer testified that Ms. Odrowski was insistent on getting out of her vehicle, and that when she did so, she could barely stand up and she had to support herself as she walked to the rear of the car, with one hand on her vehicle. When asked to provide more details, P.C. Mercer stated that, after Ms. Odrowski got out of the car, which took some time, her footing was so unsteady that she needed one hand to steady herself on the vehicle as she walked around to the rear. According to P.C. Mercer, it was at that point that P.C. Pala arrived.

[88] P.C. Pala testified that, when he exited his vehicle, P.C. Mercer had already exited her vehicle, and had made contact with the drivers. When asked in cross-examination whether he saw Ms. Odrowski stumble as she exited her vehicle, or stumble, trip or lean against any objects when she was walking between the two vehicles, P.C. Pala stated that he could not recall. He agreed with Defence counsel that he would have noted such observations if he had seen them. However, P.C. Pala went on to say that he did note and observe that Ms. Odrowski had an unsteady gait when she walked to the sidewalk.

[89] P.C. Mercer and P.C. Pala both testified about Ms. Odrowski walking into a puddle. I recognize that they described this incident somewhat differently. However, I find that any inconsistencies in how they described it were not material. They both testified that they believed stepping into the puddle was odd behaviour, which was another indication that Ms. Odrowski may be impaired.

[90] P.C. Pala testified that Ms. Odrowski was taking photographs with her cell phone between the two vehicles. He told her that she was welcome to take photographs but had to do so from the sidewalk because there was a high volume of traffic in the area. As P.C. Pala directed her to the sidewalk, he warned her about the puddle, but she stepped right into it with her right shoe fully submerged. P.C. Pala testified that the unsteady gait he observed included the way Ms. Odrowski walked to the sidewalk, and not recognizing the hazard of the puddle.

[91] P.C. Mercer testified that she and P.C. Pala were trying to get Ms. Odrowski to stand on the sidewalk, and Ms. Odrowski stumbled into a large puddle and remained there "until we eventually got her up on the sidewalk, but she had difficulty standing up straight without being steadied against the car". P.C. Mercer remembered Ms. Odrowski standing in the puddle, which she described as more of a pothole that had filled up with water. Ms. Odrowski had both shoes submerged. It seemed to P.C. Mercer that Ms. Odrowski had no idea that she was ankle deep in water. P.C. Mercer testified that she recalled Ms. Odrowski standing in the puddle and "us trying to usher her out of this puddle".

[92] I am not troubled by the fact that P.C. Pala did not recall seeing Ms. Odrowski stumble or lean against any objects, as described by P.C. Mercer. Nor does it concern me that the two officers described the puddle incident somewhat differently. Firstly, P.C. Pala did observe what he described as Ms. Odrowski's unsteady gait. Secondly, in the context of this case, it is not surprising that the officers might describe and recall certain pieces of their interaction with Ms. Odrowski differently. For instance, I have taken into account P.C. Pala's testimony that when he arrived on scene, there were approximately 15,000 people leaving the concert, trying to make their way out of the city, both in vehicles and on foot. According to P.C. Pala, when he initially arrived on scene, he got out of his cruiser and was there to ensure everyone's safety, including the officers, in this high traffic area.

[93] In relation to Ms. Odrowski's balance at the police station, P.C. Blanchard noted a slight sway when she was standing in the booking room. He agreed with Defence counsel's suggestion that she did not need to grab onto anything to prevent herself from falling. However, observable indicia of impairment are not static.

[94] Each of the witnesses testified that Ms. Odrowski had slurred speech. Mr. Luthra testified that he observed Ms. Odrowski's speech to be slow and slurred. He stated that a lot of her words were very slurred and "it looked as if she took a lot of time to think about what she was saying". Mr. Luthra also said that, at some points, her speech was rushed, and it was very hard to understand.

[95] Ms. Holmes testified that she overheard bits and pieces of the conversation between Mr. Luthra and Ms. Odrowski. Ms. Holmes was confident that she heard Ms. Odrowski urge her and Mr. Luthra not to call the police. Ms. Holmes believed that she heard this before the police arrived. Ms. Holmes recalled Ms. Odrowski mentioning someone in her family, possibly her son, being sick. However, Ms. Holmes said "it was quite a jumbly conversation and she was slurring her words a little bit at that point". I recognize that Mr. Luthra did not testify about Ms. Odrowski urging them not to call the police. However, I find that Ms. Holmes gave her evidence in a balanced way, and I accept her evidence that she overheard a portion of the conversation between Mr. Luthra and Ms. Odrowski, and observed Ms. Odrowski's speech to be slurred. Ms. Holmes's testimony regarding slurred speech is consistent with the testimony of the other witnesses who heard Ms. Odrowski speak.

[96] P.C. Mercer testified that when she initially spoke with Ms. Odrowski, in addition to smelling alcohol on her breath as she was talking, Ms. Odrowski was slurring her words quite a bit. P.C. Mercer also noted that Ms. Odrowski had difficulty getting her wallet out of her purse, and locating her licence in her wallet. During this interaction, P.C. Mercer noted that Ms. Odrowski was very frazzled, had difficulty speaking, and was slurring words. P.C. Mercer agreed with Defence counsel's suggestion that she could not recall the exact words Ms. Odrowski slurred. However, P.C. Mercer testified that she could tell that Ms. Odrowski was slurring her words "like an impaired person would slur or somebody who might have had dental surgery recently". I do not find it significant that P.C. Mercer could not recall the exact words that Ms. Odrowski slurred. I accept P.C. Mercer's evidence that Ms. Odrowski had slurred speech. Again, the officer's evidence on this point is consistent with each of the other witnesses who heard Ms. Odrowski speak.

[97] P.C. Pala testified that he observed Ms. Odrowski to have slurred speech when she was explaining to him that she wanted to take photographs of the damage to the vehicle, or licence plate. She also had slurred speech when she responded to his questioning about the consumption of alcohol.

[98] P.C. Blanchard noted a slight slur in Ms. Odrowski's speech when he dealt with her at the police station. He described it as a slight mushiness to the speech. In his words, "there's not a distinct, let's say sharpness to the ending and beginning of words".

[99] For the above reasons, on the totality of the evidence, I find that Ms. Odrowski's ability to operate a motor vehicle was impaired by alcohol. She is found guilty of that charge.

CONCLUSION

[100] I find Ms. Odrowski guilty of the charges of Over 80 and Impaired Operation or Care or Control of a Motor Vehicle by alcohol. I am entering a conditional stay in relation to the Impaired Operation conviction.

Released: November 26, 2019

Signed: Justice J.P.P. Fiorucci