ONTARIO COURT OF JUSTICE

CITATION: R. v. Tompkins, 2021 ONCJ 689

DATE: 2021 12 10

COURT FILE No.: Central East Region: Oshawa Courthouse File #: 20-A34459

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DIANDRA TOMPKINS

Before Justice Peter C. West

Heard on September 16 and 17, 2021

Reasons for Judgment released on December 10, 2021

Ms. T. D’Eri..................................................................... counsel for the Crown

Mr. A. Fazari.............................. counsel for the defendant Diandra Tompkins

WEST J.:

[1] Diandra Tompkins was arrested and charged on March 10, 2020, with impaired operation of a conveyance and having 80 or more mg. of alcohol in 100 ml of blood while operating a conveyances contrary to the Criminal Code of Canada. On September 16, 2021, a trial was commenced in respect of those two offences. Mr. Fazari, on behalf of Ms. Tompkins, brought a Charter application alleging breaches of ss. 7, 8, 9, 10(a) and 10(b), seeking exclusion of the Intoxilyzer 8000C breath readings and a stay of both charges. It was agreed by the Crown and Mr. Fazari that the Charter application could be by way of a blended hearing rather than a separate voir dire.

[2] At the commencement of the trial Mr. Fazari admitted the date of the incident, jurisdiction, and the identity of Ms. Tompkins. Further he admitted a photocopy of the Certificate of a Qualified Breath Technician was acceptable to the defence. The admission of the breath readings was dependant upon the outcome of the Charter application and if there was a breach, the issue was whether the breath readings were excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedom. The Crown called two witnesses, Melissa Rose-Smith, who was the citizen who called 911 and P.C. Christopher Thomas, the arresting officer, after which Ms. D’Eri closed her case. Mr. Fazari advised he intended to call the qualified breathalyzer technician and Ms. Tompkins as part of the Charter application but not with respect to the trial proper. I then heard submissions from both counsel and I reserved judgment until December 10, 2021, when I provided written reasons. At the conclusion of the evidence Mr. Fazari advised the only Charter issue he was proceeding with was the alleged breach of Ms. Tompkins’ right to counsel pursuant to s. 10(b). The only other issue on the trial proper was whether the Crown proved beyond a reasonable doubt that Ms. Tompkins’ was in care or control of her motor vehicle.

Factual Background

Evidence of Melissa Rose-Smith

[3] Around 11:25 a.m. on March 10, 2020, Melissa Rose-Smith was backing out of her driveway onto Trewin Lane in Bowmanville, when she noticed a woman slumped over in the driver’s seat of a small car parked on her street. The woman’s chin was to her chest, she was the lone occupant and she was not moving. She went to the driver’s door and knocked on the window saying “Hello” but there was no response. She opened the driver’s door and shook the woman’s shoulder but there was still no response.

[4] At this point Ms. Rose-Smith called 911 requesting an ambulance. She checked the woman’s pulse on her carotid artery with two fingers, she had a pulse but her breathing was slow and shallow. She gave this woman a sternum rub, which is a gentle rub along the rib cage and this caused her to come to. Ms. Rose-Smith is a nurse. The woman woke up and got out of her vehicle. She did not respond to verbal requests or even when her shoulder was shaken. She was the only person in the vehicle.

[5] The woman was standing in the middle of the road and told Ms. Rose-Smith she had to pee. Ms. Rose-Smith told the woman she had called for an ambulance and asked her to sit in the vehicle until the ambulance came. She never lost sight of the woman. The woman had a strong smell of alcohol on her breath. She was stumbling when she went to get back in the car. Ms. Rose-Smith testified she felt the woman was becoming more combative with her when she told her she had called 911. Ms. Rose-Smith was still on the phone with the 911 operator, who asked if the woman was getting confrontational and Ms. Rose-Smith replied, “A little bit.” She provided the license number of the car to the 911 operator.

[6] The woman got back into her vehicle. Ms. Rose-Smith could smell alcohol and she became concerned with her being agitated with Ms. Rose-Smith she could drive away. She saw the keys were in the ignition. The woman was reaching for the keys and Ms. Rose-Smith testified she asked her for the keys and the woman gave the keys to Ms. Rose-Smith. Ms. Rose-Smith testified she asked for the keys because she was concerned the woman, in her agitated state with Ms. Rose-Smith for calling 911, that she would drive away. At some point fire and ambulance both arrived. The woman was in the ambulance when the police arrived on scene.

[7] Ms. Rose-Smith was not there for long as she was picking up her son from child care. She spoke briefly to an officer before she left and when she returned she provided a statement to the police. When she was looking into the car she saw a can, which said Vodka on it in the driver’s cup holder.

[8] In cross-examination Ms. Rose-Smith identified the defendant as the woman who was in the small motor vehicle parked on the road. She had seen her before but had never spoken to her. She believed the defendant lived three houses from her in an end unit townhouse with one spot for parking. She did not know people who lived at house by name but knew the townhouse was rented. Parking is allowed on both sides of the street and people park on the street all the time. Ms. Rose-Smith was familiar with the vehicle the woman was in and had seen it more than ten times. Ms. Rose-Smith agreed she had seen the defendant sitting in the car and smoking. She recalled seeing this woman’s cigarette butts on the roadway where she parked. There are parks in the area of the street. Sometimes it can be difficult getting out of the driveway but there is limited parking and people park on the street.

[9] When she left she did not believe there were other cars parked on Trewin Lane. She did not know when the defendant parked her car on the road. She went to driver’s door and knocked on window, no response. She opened the door and shook her shoulder, there was no response. She did not notice if the car was in park or if emergency brake was on. She saw a can of Vodka in cup holder the second time she was beside the driver’s door. She did not see keys until the second time she was beside driver’s door. She was still on her phone and she asked the driver for the keys, which were in the ignition.

[10] When the woman turned to go back into the car she stumbled. She did not recall the woman having difficulty getting out of the car. She never saw the woman take a drink and did not see her smoking. She gave the car keys to one of the fire fighters. She believed she did tell the 911 operator that the woman’s keys had been in the ignition. She saw the keys in the ignition.

[11] Ms. Rose-Smith testified it looked like the woman was going to start the car. This was why she asked for the keys. She was agitated and her hand went for the keys and she thought the woman was going to start the car and drive away. This was why she asked the woman to give her the keys.

[12] Ms. Rose-Smith agreed she saw the defendant in the car on previous occasions smoking. She did not know when she sat in the car normally or for how long. Ms. Rose-Smith told the defendant she had called an ambulance and this was why she believed the woman was agitated towards her. She saw the keys were in the ignition and the woman moved her hand as if she was going to start the car and drive away. Ms. Rose-Smith smelled alcohol and she didn’t want the woman to do that. Ms. Rose-Smith maintained the woman was slightly confrontational with her.

Evidence of P.C. Christopher Thomas

[13] On March 20, 2020, P.C. Thomas was a police constable with Durham Regional Police Service and had been on the road in uniform for a year. He was dispatched at 11:26 a.m. to attend Trewin Lane in Bowmanville because of an unresponsive female who was not waking up, slumped over the steering wheel of her car. An ambulance had been called. There was information the female had been drinking vodka. The fire fighters were on scene and confirmed the woman was impaired. In a Honda Civic, license BLHW701. The call type changed from well being check to impaired driving after his arrival.

[14] He arrived at 11:37 a.m. on scene. He was alone. There was a woman by a vehicle, who was Melissa Smith (Rose-Smith). The officer spoke first to Ms. Smith upon arriving on scene. She advised she was leaving her house and observed a woman in a car parked on the street, who was passed out. The woman was in the driver’s seat. She opened the car door trying to wake up the woman and then called for an ambulance. She could smell a strong odour of alcohol once the woman woke up. She saw a can of vodka in the cup holder. She asked the female for her keys because she thought she was going to drive away. Ms. Smith advised P.C. Thomas this woman was in the back of the ambulance being tended to by the paramedics. P.C. Thomas looked inside the Civic and saw 6-7 cans of Nutrl vodka under the driver’s and passenger’s seat. He testified he was aware of this drink, which is alcoholic. He testified he had authority to look inside the vehicle because he was investigating an impaired operation.

[15] P.C. Thomas spoke to the paramedics and determined that Ms. Tompkins was medically cleared and he could speak to her. When he spoke to her he detected a strong odour of alcohol from her and there was a strong slur in her speech. She verbally identified herself as Diandra Tompkins. When they were walking to the police vehicle she was walking off balance. She was unable to take a straight step. P.C. Thomas testified he formed reasonable grounds that Ms. Tompkins ability to operate a motor vehicle was impaired by alcohol based on what Ms. Smith told him and from his observations. He arrested her for impaired operation, which he testified was care or control, at 11:44 a.m. He had been told by Ms. Smith that Ms. Tompkins’ was sitting in the driver’s seat with the keys in the ignition.

[16] He handcuffed Ms. Tompkins to the rear, placed her in the rear of his police vehicle. He confirmed her identification. He did not locate her driver’s license in the vehicle or on Ms. Tomkins, when he did a pat down search before placing her in the police cruiser, so he did an MTO query. The MTO photo matched Ms. Tompkins. Once he had confirmed her identification, he read Ms. Tomkins her right to counsel at 11:50 a.m. She indicated she understood her rights and said wanted to call a lawyer. He then read Ms. Tompkins a caution from the back of his notebook and she advised she understood. This advised her whatever she said could be used in court. [Mr. Fazari advised there was no issue with the wording of the caution.] At 11:53 a.m., P.C. Thomas read Ms. Tompkins the breath demand. [Again, Mr. Fazari advised there was no issue with the wording.] Ms. Tompkins advised him she understood. There was no conversation after he left the scene to go to 16 Division, 4 kms from the scene.

[17] Ms. Tompkins was paraded before Staff Sgt. Iheme. During the booking Ms. Tompkins asked if she could call her husband. At 12:23 p.m., P.C. Thomas contacted Ms. Tompkins’ husband at 416-846-3311, which was the number provided by Ms. Tompkins. Mr. Tompkins advised P.C. Thomas that he would call Angelo Fazari at 905-735-2921, who was their lawyer. P.C. Thomas advised he would also call Mr. Fazari, which he did at 12:25 p.m. He was told Mr. Fazari was at lunch but his office advised they would attempt to contact him.

[18] At 12:29 p.m., P.C. Thomas provided his grounds for Ms. Tompkins’ arrest to P.C. Sutherland, the qualified breath technician. This concluded at 12:33 p.m. He advised him about his observations: unsteady on feet, slurred speech, alcohol beverage odour, as well as the call for service details. He also advised about the cans of Nutrl vodka he observed in the car. Ms. Tompkins was found in the driver’s seat of car, keys in the ignition, caller said she was unresponsive.

[19] At 12:40 p.m., P.C. Thomas called Mr. Fazari’s office again. He was advised he was still away from his office at lunch, his office would make efforts to reach him and get him to call the police station. P.C. Thomas waited a further 20 minutes and at 13:01 p.m., he went to the cell she was lodged in and advised Ms. Tompkins he had called Mr. Fazari but he had not called back. Ms. Tompkins requested P.C. Thomas call duty counsel for her to speak to, which he did at 13:02 p.m. A duty counsel, Mr. Pye, called back and P.C. Thomas spoke to him. He then put Ms. Tompkins into a private room so she could speak to duty counsel and P.C. Thomas transferred the call to that room. At 13:11 p.m., Ms. Tompkins was turned over to the qualified breath technician, P.C. Sutherland, right after she finished speaking to duty counsel.

[20] At 13:41 p.m., P.C. Sutherland returned custody of Ms. Tompkins to P.C. Thomas. She was placed in a cell. P.C. Sutherland advised P.C. Thomas the results of the breath tests were 150 mg of alcohol in 100 ml of blood and 140 mg of alcohol in 100 ml of blood. The breath technician provided him a Certificate of the Qualified Breath Technician, which he served on Ms. Tompkins. He identified Ms. Tompkins’ signature which she signed upon receiving this document. P.C. Thomas identified his name as the person who served her. The breath technician also signs the document. The Certificate was marked as Exhibit 1.

[21] In cross-examination P.C. Thomas testified he was speaking to Ms. Tompkins within six minutes of arriving on scene at 11:38 a.m. until he arrested Ms. Tompkins at 11:44 a.m. He first spoke to Ms. Smith after she was cleared medically by the paramedic at the ambulance. He agreed when he first spoke to Ms. Tompkins he was investigating her. After forming his grounds he arrested Ms. Tompkins for impaired operation. At the back of the ambulance Ms. Tompkins provided him her name and date of birth. He testified he would have asked her for her driver’s license, insurance and ownership. If she had given her driver’s license he would not have needed to verify her identity. She did not produce any of the documents he asked for. He conducted a MTO query to identify her.

[22] After he read the right to counsel Ms. Tompkins told him she wanted to call a lawyer. P.C. Thomas testified he advised Ms. Tompkins he would make the call to the lawyer at the police station. She did not tell him she had a lawyer. He did not use an approved screening device (ASD), as he did not need to. He arrived at police station at 12:01 p.m. At 12:23 p.m., P.C. Thomas contacted Ms. Tompkins’ husband. Ms. Tompkins provided her husband’s phone number when he was with her during the booking. He called Mr. Fazari’s number on two occasions, at 12:25 p.m. and 12:40 p.m. He was provided the lawyer’s number from Ms. Tompkins’ husband. P.C. Thomas advised Ms. Tompkins at 13:01 p.m., he had not heard back from Mr. Fazari. He testified he never tells a person what they should do and did not tell Ms. Tompkins to call duty counsel. She asked for duty counsel, she requested him to call duty counsel. It was never suggested by Mr. Fazari in his cross-examination that P.C. Thomas just attended the cell and brought Ms. Tompkins to a private room to speak to duty counsel who he had called on his own initiative.

[23] P.C. Thomas agreed he never saw Ms. Tompkins drive the car or sitting in the driver’s seat of the car. He facilitated calling the lawyer for her and he transferred the call from duty counsel to a private room where he had put her.

[24] In observing the booking video P.C. Thomas testified it did not appear that Ms. Tompkins had any problem in walking at that point. She stood on the “X” on the floor. She was not swaying or unsteady on her feet. The staff sergeant asked about the lawyer at 12:10 p.m. The staff sergeant advised Ms. Tompkins if he did not have a lawyer then duty counsel can be called. A female officer asked Ms. Tompkins to remove her sweater and a chain, which she did. She was searched against a wall. Ms. Tompkins removed her boots and put them back on without difficulty. At 12:18 the staff sergeant asked Ms. Tompkins’ husband’s name and phone number. P.C. Thomas testified her walking was not perfect but not atrocious. She was not stumbling. She did not sway side to side.

[25] Ms. Tompkins did not ask to speak to duty counsel during the booking but asked for her husband to be called. P.C. Thomas called Mr. Tompkins and obtained Mr. Fazari’s name and phone number. P.C. Thomas testified he called Mr. Fazari on two occasions. At 13:01 he returned to the cell Ms. Tompkins was in and advised her Mr. Fazari ‘s office had been called twice and Mr. Fazari was not there and had not called back. Ms. Tomkins asked him to call duty counsel, which he did at 13:02. This call was returned within a minute and Ms. Tompkins was put in a private room and spoke to the duty counsel from 13:02 to 13:11 before being turned over to the qualified breath technician, P.C. Sutherland. P.C. Thomas testified he did not know how long her call was with duty counsel.

Evidence of P.C. Isaiah Sutherland (called by defence)

[26] He has been a police officer for 4 years. In March 2020, he had been a breath technician since the summer of 2019. He did not observe any slurring of Ms. Tompkins’ speech. Her eyes were watery or glassy, which could be caused by dry eyes. She was co-operative. P.C. Thomas provided his grounds to him:

• Witness observed accused in driver’s seat of vehicle with keys in ignition
• Odour of alcohol from the driver, sole occupant
• Slurred speech
• Trouble walking
• 6-7 cans of vodka in car
• Admission of consumption

[27] Ms. Tompkins was not doing much walking when she was with P.C. Sutherland. There was strong odour of alcohol coming from her. There were slight effects of alcohol noted by P.C. Sutherland. He knew she wanted to speak to a lawyer and P.C. Thomas advised him Ms. Tompkins had spoken to duty counsel. He asked Ms. Tompkins and this is in the breath room video (Exhibit 2):

P.C. Sutherland: Are you satisfied with your duty counsel call?

Ms. Tompkins: Ya

[28] P.C. Sutherland advised her she was charged with impaired operation and he cautioned her and also provided a secondary caution. He then explained how Ms. Tompkins was to provide a proper sample of her breath into the Intoxilyzer instrument and how she was to do that. Ms. Tompkins then provided a proper sample of her breath into the instrument and it was accepted by the Intoxilyzer for analysis.

[29] After providing this sample Ms. Tompkins had the following conversation with P.C. Sutherland.

P.C. Sutherland: Alright that’s perfect we just have to get one more. We just have to wait to do some more test clean out all the old air, it will be about 17 minutes before we can do that second test ok? Do you live in St. Catharines? Yeah? You just doing work out here?

Ms. Tompkins: Can I just make a phone call?

P.C. Sutherland: Phone call? You already talked to a lawyer so technically that’s the only phone call that you can get is talking to legal aid or duty counsel.

Ms. Tompkins: Hmmm I didn’t call them.

P.C. Sutherland: Hmm?

Ms. Tompkins: I didn’t call them.

P.C. Sutherland: Yeah, we called them on your behalf?

Ms. Tompkins: Hmmm

P.C. Sutherland: Alright, didn’t the officer tell you that your husband is on his way?

Ms. Tompkins: No

P.C. Sutherland: No? Well your husband is on his way from St. Catharines, so he is aware and he is on way, and once we have done the test, just do some paperwork and you’re out of here so it’s not going to be too long.

P.C. Sutherland: Okay, so how was your day.

Ms. Tompkins: Do I have to answer your questions?

P.C. Sutherland: No.

Ms. Tompkins then advised P.C. Sutherland she did not want to answer any questions and he said that was okay.

[30] P.C. Sutherland testified he did not understand from this conversation that Ms. Tompkins wanted to speak to a lawyer again. He believed when she asked if she had a call that she was asking to speak to a third party and he told her that her husband had been called and was on his way. At no time did Ms. Tompkins ask P.C. Sutherland to speak to Mr. Fazari.

Evidence of Diandra Tompkins

[31] She lives in St. Catharines but lived at 51 Trewin Lane in Bowmanville during the week when she worked at the Darlington Nuclear Plant. She lives with her partner, David Ball, in St. Catharines and they have 2 children. On March 10, 2020, she had been at work. She had driven from St. Catharines on March 9, 2020, to go to work at Darlington OPG. She started worked at 5:30 p.m. She had no alcohol to drink before going to work. She finished work at 4:13 a.m. When she was working she stayed at 51 Trewn Lane. There were 3 other residents that she lived at that address with. She rented a bedroom there. The house is an end unit of a townhouse. There were two cars in the driveway. She started living at this address when she was working in 2018.

[32] She had purchased 11 cans of Nutrl, 473 ml of vodka and soda in Bowmanville on March 9, 2020, before she went to work between 4 and 5:30 p.m. She put it in the trunk of her car. She testified she would not say this was a regular thing she did. She would drink them after finishing work. She worked as a foreman rebuilding the nuclear reactor. She is not allowed to drink on the job. She had 30 workers working under her.

[33] After work ended on March 10, 2020, she went to 51 Trewn Lane, which takes 7-10 minutes from the plant. She parked on the road near 45 Trewin Lane, which was Ms. Rose-Smith’s house. She pulled up and parked. She testified she turned off her car and got out and was about to cross the street. She saw her roommates were still home. She got back in her car as she did not want to disturb her roommates who were still home. She decided to telephone her partner, David, to talk about a fight they had over the weekend. She got back into her vehicle sitting in the driver’s seat and smoked a cigarette. She put the keys in the ignition to control the window to lower it. The time was 4:27 a.m. There were no other vehicles behind or in front of her vehicle.

[34] She testified she smoked a couple of cigarettes, called her husband and they continued arguing for 45 minutes to an hour. Ms. Tompkins testified she decided to stay up and have a couple of drinks in her vehicle but she testified she had no intention to drive it. She believed she drank 6 cans of Nutrl. She went and got them from her trunk and brought them into her vehicle. When she got off the phone she said she was upset.

[35] Ms. Tompkins testified she did not recall Ms. Rose-Smith knocking on the driver’s door window and she did not recall her opening the driver’s door and punching her shoulder because she said she was sleeping. She testified Ms. Rose-Smith woke her up. She testified she just woke up and was groggy and tired. She remembered Ms. Rose-Smith being on the phone and telling her that she had called an ambulance. She remembered getting out of her vehicle and having to use the bathroom. Ms. Rose-Smith asked her to stay as the police and an ambulance were coming. The keys were in the ignition but she did not turn the car on. The empty cans were behind the passenger seat and there was a partially full can in the centre console that she had not finished.

[36] Ms. Tompkins testified she went towards the keys to remove them from the ignition to give to Ms. Rose-Smith. She denied giving Ms. Rose-Smith a hard time. She had no intention to drive. The ambulance and fire arrived first and she went with a paramedic to the ambulance. When she got out of the ambulance P.C. Thomas was there and he started speaking to her. He asked her name and whether she had anything to drink and Ms. Tompkins said she said she had. They walked by her car and the officer opened the back door and pointed to the empty Nutrl cans behind the passenger seat.

[37] P.C. Thomas arrested her and read her the Right to Counsel and told her if she did not have a lawyer she could call duty counsel. She testified she did not request to speak to duty counsel. P.C. Thomas asked if she had identification and if she had a driver’s license. He went to look for it. They went to the police station and drove into the sallyport. He went into the building and then came back. She was brought before a sergeant. It was her evidence she had no problems with her speech or walking. Her eyes were glassy and red because she was exhausted. She had barely 5 hours of sleep and she was crying while she was on the phone.

[38] Ms. Tompkins testified she never requested to speak to duty counsel. She was put in a cell and it felt like an eternity. P.C. Thomas came and got her and she asked if she could call her lawyer. He said they called but could not get in contact with him. She had a conversation with duty counsel, which was probably no more than 3 minutes. She testified she did not want to speak to duty counsel. But she did. P.C. Thomas told her the lawyer did not call back. He did not give her an opportunity to call another lawyer. He did not provide her a telephone book. He did not say they could wait for the lawyer to call. Following her call with duty counsel she was taken to the breath room.

[39] Ms. Tompkins asked if she could make a phone call and the breath technician told her she had already spoken to duty counsel. She told him she did not make that call. He said they had made the call on her behalf. Ms. Tompkins testified she wanted to speak to her lawyer. She agreed she did not say that to the breath technician. She said there was a lot happening and she was scared and nervous and she was not told there was any other option. P.C. Sutherland did not offer her a phone to use.

[40] In cross-examination Ms. Tompkins agreed her initial intention was to park her car and go into her home and go to sleep. She did not see her roommates’ cars in the driveway until she walked across the road and she then decided she did not want to disturb them, so she went and sat in her car again to smoke a cigarette. She typically stayed in her car for a bit after getting home and then went into the house. On this day she wanted to call her husband and she wanted privacy. She put her keys in the ignition to be able to put the window up and down and the eBrake was on. The roadway is flat. Her vehicle is a standard transmission. The ignition is to the right side of her steering wheel and the eBrake is by her right knee. She would have to push in the clutch to start the car. She agreed that turning the car on and off is not difficult for her. She was an experienced driver of this vehicle and had owned it since 2017.

[41] When she was talking to her husband David the cans of vodka were in the trunk of her car. She was smoking a cigarette when she was speaking to him. She had the key in the ignition to be able to operate the window. She was very upset and emotional after speaking to David. This was when she went into the trunk and brought the vodka cans into the car. She did not dispute she consumed 6 cans with a 7th can partially full still in the centre console. She was smoking the whole time she was drinking the cans of vodka. She believed she was drinking for a couple of hours. She was operating the window throughout that time.

[42] Ms. Tompkins agreed if she had driven the car she would have been impaired. She would not have driven because of the number of cans of vodka she drank, the fact she was exhausted and was very upset by her call with her husband. She agreed she had never had any negative interactions with Ms. Rose-Smith, the woman who called 911. Ms. Tompkins testified she did not recall Ms. Rose-Smith knocking on the window or Ms. Rose-Smith opening the driver’s door and shaking her shoulder. Ms. Tompkins did not recall Ms. Rose-Smith rubbing her sternum area of her chest. At some point she woke up and saw Ms. Rose-Rose standing beside the car with driver’s door open on the phone. Ms. Rose-Smith was concerned about her wellbeing. Ms. Rose-Smith told her she had called 911 and was on the phone with an operator. Ms. Tompkins could not recall what was being said on the phone by her to 911. She did not recall taking issue with Ms. Rose-Smith telling the 911 operator she had trouble waking Ms. Tompkins up. Ms. Rose-Smith told her the police and an ambulance were coming. Ms. Rose-Smith turned her back to Ms. Tompkins when she was talking to the 911 operator on the phone. Ms. Tompkins testified she was “groggy and exhausted” but would not say she necessarily was confused. She was trying to assess what was happening. She was thinking she was going to be in trouble for being impaired. She told Ms. Rose-Smith she had to go to the bathroom. Ms. Rose-Smith said no she should stay there because the police and ambulance were coming and Ms. Tompkins got back into her car. The key was still in the ignition. Ms. Tompkins testified she could not recall whether she was annoyed or agitated with Ms. Rose-Smith.

[43] She agreed Ms. Rose-Smith was possibly reporting her for impaired. Ms. Rose-Smith was telling her not to go to the bathroom. Ms. Tompkins agreed it is possible she was annoyed with Ms. Rose-Smith. Ms. Tompkins testified from her recollection Ms. Rose-Smith asked for her keys and she reached for her keys. When the Crown suggested Ms. Tompkins reached for the keys and then Ms. Ros-Smith asked for the keys, Ms. Tompkins testified she could not comment as she did not recall that. She agreed having to go to the bathroom, being groggy, still feeling the effects of alcohol and being exhausted – she agreed all these things could affect her recollection as to what exactly happened in the moment. She then testified she did not think her memory would be affected to that degree. She was not stumbling. She then agreed it might be possible she stumbled but what she recalled was she was walking fine. She agreed she was in no position to drive.

[44] P.C. Thomas came to ambulance and was there when she was with paramedic. She did not dispute there was a strong odour of alcohol for her given what she consumed. She may have had red bloodshot eyes because of that, although she described crying as well. She agreed all of the police officers who dealt with her treated her fairly and respectfully.

[45] P.C. Thomas read her right to counsel. He explained duty counsel. At the booking it was explained she could retain any counsel or duty counsel. After she came out of washroom the Sergeant asked her to make a decision about a lawyer and she gave David’s name and phone # to call him to get the name and telephone number of the lawyer. She was then put into a cell. She testified she believed the police were attempting to contact her husband David for the purpose of contacting a lawyer.

[46] Being in a cell in a police station was not fun, it felt like an eternity and her stress was very high and she was exhausted. It was suggested P.C. Thomas came to her cell and explained about trying to call the lawyer but he had not come back yet from lunch and had no returned P.C. Thomas’ call. Ms. Tompkins testified she remembered P.C. Thomas coming and asking her to come with him and he took her to where there was a telephone. She asked him who was on the phone and he mentioned Mr. Fazari had not called back and duty counsel was on the phone.

[47] The Crown asked Ms. Tompkins if she had made any notes about what happened on March 10, 2020, and she indicated she had. Ms. Tompkins said she did not have the notes but she last looked at them the week before coming to court. When she was asked whether she had written down what occurred at the police station concerning the lawyer, Ms. Tompkins replied, she “believed something was mentioned but did not know if it was exactly that.” She maintained she never asked to speak to duty counsel and he brought her to the room and said duty counsel was on the phone. She said at that point she did not know she had an option to say she did not want to speak to duty counsel.

[48] Ms. Tompkins testified if the officer had told her that her lawyer was not calling back and he asked if she wanted him to call duty counsel, she would have said she did not want to speak to duty counsel, she wanted to speak to counsel of choice. Ms. Tompkins agreed when she was first brought into the breath room the breath technician asked if she was “satisfied with her call to duty counsel?” and she responded, “Ya.” She agreed with the Crown she never said she wanted to speak to her counsel of choice. She said the duty counsel was polite and she had no issues with him. She agreed she knew duty counsel was a lawyer.

[49] Ms. Tompkins agreed she had seen the TV shows where a person at the police station gets a phone call and she believed from that she had a right to a phone call. She believed she got a right to make a phone call, not just to counsel, but to anyone from the police station. When she was first brought into the breath room she testified she did not know her partner, David, was on his way from St. Catharines to the police station. She agreed she was alone there and stressed out, scared of what was happening, and she wanted her partner to come there. She believed from the movies and TV she got to make a phone call from the police station, this was something she assumed. The breath technician asked her if she was aware her husband was on his way and she replied, “No.” He then reiterated her husband was on his way and was aware she was there and once the tests were completed she would be out of the police station and it was not going to be too long. She agreed after the discussion about her husband she did not mention anything again about making a phone call. She did not agree with the Crown’s suggestion that was because her concern was alleviated. She maintained she still would have liked to speak to contact her lawyer from the police station, however, she testified she cannot tell the court she made notes about these counsel discussions, these specific discussions.

Position of the Parties

[50] Mr. Fazari submitted based on the whole of the evidence Ms. Tompkins was not in care or control of her vehicle, having regard to fact her vehicle was where she normally parked it, she had reached her destination and was home, the fact it was not running, she was not in de facto control of her vehicle, she was using the vehicle to smoke and drink, she had no intention to drive, she knew she was impaired and she did not have her seatbelt on.

[51] The only Charter argument Mr. Fazari advised he was still pursing was the breach of Ms. Tompkins’ s. 10(b) Charter rights. Numerous other breaches were alleged in the factum filed by Mr. Fazari; however, after the completion of the evidence, he advised he was abandoning the other alleged breaches based on the evidence. It was his position if there was a breach of Ms. Tompkins’ s. 10(b) Charter rights the breath tests should be excluded pursuant to s. 24(2).

[52] The Crown submitted there was ample evidence Ms. Tompkins was in care or control of her vehicle and listed the following factors: the keys were in the ignition; Ms. Tompkins was consuming alcohol in the vehicle; she was seated in the driver’s seat, she was operating the window of the vehicle and the evidence of Ms. Rose-Smith that Ms. Tompkins became agitated with her for calling 911 and at one point reached for the key such that Ms. Rose-Smith believed she was going to start the vehicle and drive away, so she asked for Ms. Tompkins’ keys. Ms. D’Eri pointed to the fact Ms. Tompkins admitted she was impaired and was exhausted, emotionally drained from speaking with her husband and agitated with Ms. Rose-Smith for calling 911, which demonstrated there was a realistic risk of Ms. Tompkins setting the vehicle in motion either through changing her mind or inadvertently setting it in motion.

[53] The Crown submitted the evidence of Ms. Rose-Smith and P.C. Thomas proved Ms. Tompkins’ ability to operate or have care or control was impaired by the consumption of alcohol.

[54] Ms. D’Eri argued there was no breach of Ms. Tompkins’ right to counsel. P.C. Thomas had a specific note that Ms. Tompkins, upon being advised the lawyer her husband had suggested had not called back, requested P.C. Thomas call duty counsel. Ms. Tompkins’ evidence on this issue should not be accepted. P.C. Thomas, according to the Crown, went above and beyond what he was required to do and Ms. Tompkins told the qualified breath technician she was satisfied with her call with duty counsel. Ms. D’Eri submitted Ms. Tompkins had not met her onus to demonstrate her right to counsel was breached.

Was Ms. Tompkins’ s. 10(b) Charter right breached?

[55] It is important to note that Ms. Tompkins bears the onus of proving a breach of her s. 10 Charter rights on a balance of probabilities. Mr. Fazari in effect submitted the police “funnelled” Ms. Tompkins to duty counsel and consequently, they breached her Charter rights under s. 10(b). Mr. Fazari did not take any issue with the wording of the right to counsel contained in the back of P.C. Thomas’ police notebook, which was read by P.C. Thomas. The standard right to counsel advises a detainee they have the right to telephone any lawyer they wish; without delay and they also have the right to free advice from a legal aid lawyer and a toll free number is provided.

[56] Section 10(b) of the Charter is comprised of two components: an informational component and an implementational component: see R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, at p. 192. Ordinarily, the informational component only requires the police to inform a detainee of his right to retain and instruct counsel without delay and to inform the detainee of the availability of Legal Aid and duty counsel: see Bartle, supra; R. v. Devries, 2009 ONCA 477, [2009] O. J. No 2421 (C.A.), at paras. 21-23 and 28; and R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 29-30.

[57] In R. v. Brydges (1990), 1990 123 (SCC), 53 C.C.C.(3d) 330 (S.C.C.), the Supreme Court held the police must give a detainee his rights to counsel before breath samples are provided and must give the detainee sufficient information to make an informed decision about speaking to counsel and a reasonable opportunity to exercise those rights without delay. Second, the police have an obligation to facilitate contact with counsel. Third, the police are required to cease questioning or otherwise attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and consult counsel, see R. v. Manninen (1987), 1987 67 (SCC), 34 C.C.C. (3d) 385 (S.C.C.) at p. 391.

[58] The Supreme Court of Canada has consistently held since R. v. Baig, 1987 40 (SCC), [1987] 2 S.C.R. 537 that the implementation duties of the police "are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel": R. v. Bartle, supra, ; R. v. Willier; supra; and R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 23-24. The Ontario Court of Appeal has also held that implementation obligations arise only when detainees express a wish to exercise their right to counsel: R. v. Fuller, 2012 ONCA 565, at para. 17. The question of whether a detainee asserted a desire to consult with counsel is essentially a question of fact: R. v. Backhouse, 2005 4937 (ON CA), [2005] O.J. No. 754 (Ont. C.A.), at paras. 77-78 and R. v. Owens, 2015 ONCA 652, [2015] O.J. No. 4972 (C.A.), at para. 28.

[59] In R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 27, the Supreme Court has also made it clear the implementational duties of the police flowing from s. 10(b) are not absolute. Absent invocation of the right to counsel and reasonable diligence in its exercise by the detainee, police duties to provide a reasonable opportunity to consult counsel and to refrain from soliciting evidence will either not arise in the first place or will be suspended. This has been confirmed in R. v. Owens, supra, at para. 25. (See also R. v. Burlingham (1995), 1995 88 (SCC), 97 C.C.C. (3d) 385 (S.C.C.) at para. 16, R. v. Ross (1989), 1989 134 (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at 135, and R. v. Richfield, 2003 52164 (ON CA), [2003] O.J. No. 3230 (C.A.).

[60] P.C. Thomas formed reasonable grounds that Ms. Tompkins’ ability to operate a motor vehicle were impaired as a result of the consumption of alcohol. As a result he arrested her for that offence at 11:44 a.m. and handcuffed her to the rear. He placed Ms. Tompkins into the rear of his police cruiser. She had verbally identified herself as Diandra Tompkins. He went to the Honda Civic to see whether he could find her purse and her driver’s license to be able to confirm her identification. He ended up doing an MTO query and running her name. Upon seeing her driver’s license photo he was satisfied the individual he had arrested was Diandra Tompkins.

[61] Once he had confirmed her identification, he read Ms. Tomkins her right to counsel at 11:50 a.m. She indicated she understood her rights and wanted to call a lawyer. When Ms. Tompkins was paraded before Staff Sgt. Iheme the following exchange occurred:

Staff Sgt. Iheme: Have you been advised of your rights to call a lawyer?

Ms. Tompkins: Correct.

Staff Sgt. Iheme: Yes?

Ms. Tompkins: Yes.

Staff Sgt. Iheme: Do you wish to call a lawyer right now?

Ms. Tompkins: Yes.

Staff Sgt. Iheme: Do you have a lawyers’ name?

Ms. Tompkins: Ah I don’t.

Staff Sgt. Iheme: Do you have a lawyer?

Ms. Tompkins: No.

P.C. Thomas: Would you like duty counsel, duty counsel it’s free advice, free lawyer to call I can call him for you either way, I just need to talk to my captain about

Staff Sgt. Iheme: If you have a lawyer of choice we can look it up for you.

[62] Ms. Tompkins then asked if she could use a bathroom and she was permitted to go to the bathroom. When she came back Staff Sgt. Iheme asked her again about whether she had decided about the lawyer.

Staff Sgt. Iheme: Ah so, did you decide what you want to do for a lawyer?

Ms. Tompkins: Ah yeah, let me check the number.

Staff Sgt. Iheme: Okay.

P.C. Thomas: Do you have the name?

Ms. Tompkins: Ah no. I have to call my husband.

Staff Sgt. Iheme: Okay we can take his number and call him, what’s your husband’s name?

Ms. Tompkins: David.

Staff Sgt. Iheme: David?

Ms. Tompkins: Ya.

Staff Sgt. Iheme: We can call him. What’s his number?

Ms. Tompkins: 416

Staff Sgt. Iheme: 416

Ms. Tompkins: 846-3311

[63] Staff Sgt. Iheme asked Ms. Tompkins other questions and the booking ended with him telling her, “We are going to call your husband and then do you want the constable to ask for number for lawyer for you?” Ms. Tompkins nods and Staff Sgt. Iheme advises that Ms. Tompkins is to be lodged in Cell #1.

[64] At 12:23 p.m., P.C. Thomas contacted Ms. Tompkins’ husband at 416-846-3311, which was the number provided by Ms. Tompkins. Mr. Tompkins advised he would call Angelo Fazari at 905-735-2921, who was their lawyer. P.C. Thomas advised he also called Mr. Fazari at 12:25 p.m. He was told Mr. Fazari was at lunch but his office advised they would attempt to contact him to get him to call the police station.

[65] At 12:40 p.m., P.C. Thomas called Mr. Fazari’s office again. P.C. Thomas testified he was advised Mr. Fazari was still away from his office at lunch, his office would make efforts to reach him and get him to call the police station. P.C. Thomas waited a further 20 minutes and at 13:01 p.m., he advised Ms. Tompkins he had called Mr. Fazari twice but Mr. Fazari was at lunch and had not called back. Ms. Tompkins requested P.C. Thomas to call duty counsel for her to speak to, which he did at 13:02 p.m. A duty counsel, Mr. Pye, called back and P.C. Thomas spoke to him. He then put Ms. Tompkins into a private room so she could speak to duty counsel and P.C. Thomas transferred the call to that room. At 13:11 p.m., Ms. Tompkins was turned over to the qualified breath technician, P.C. Sutherland, after she had finished speaking to duty counsel.

[66] P.C. Sutherland read the right to counsel again to Ms. Tompkins once she was in the breath room, “So you understand you have the right to call a lawyer, you can call any lawyer you wish, if you don’t have a lawyer we can set you up with duty counsel.” Ms. Tompkins indicated she understood. He asked her if she was satisfied with her duty counsel call, to which Ms. Tompkins answered, “Ya.” Ms. Tompkins agreed she did not say to P.C. Sutherland when he asked if she was satisfied with her call to duty counsel that she still wanted to speak to Mr. Fazari, the lawyer’s name and phone number her husband had provided to P.C. Thomas. There was no evidence led during this trial that Mr. Fazari had ever called the police after returning to his office from lunch.

[67] When Ms. Tompkins asked P.C. Sutherland: “Can I just make a phone call?” after she provided her first sample of her breath, it is my view she was asking if she could call her husband. After her first breath sample was received into the approved instrument P.C. Sutherland explained they were going to have to wait 17 minutes before she could do the second test. He asked if she lived in St. Catharines and she nodded and he then asked if she just doing work out here, referring to Bowmanville. This was when Ms. Tompkins asked if she could make a phone call. P.C. Sutherland referred to the fact that P.C. Thomas had called duty counsel on her behalf and she responded that she didn’t call them. P.C. Sutherland then asked if P.C. Thomas had told her he had spoken to her husband and that he was on his way to the police station from St. Catharines. This seemed to satisfy her from my observations of Ms. Tompkins on the breath video after this exchange. When the officer asked Ms. Tompkins, “How’s your day?” She responded by asking him if she had to answer questions, to which he responded, “No.” Ms. Tompkins then said she did not want to answer any questions.[^1]

[68] In cross-examination Ms. Tompkins testified being in a cell in a police station was not fun, it felt like an eternity and her stress was very high and she was exhausted. She testified she wrote notes about what occurred the next day, which she had reviewed the week before the trial. She testified she could not recall exactly what was written down in the notes but she “believed something was mentioned but did not know if it was exactly that,” referring to her evidence that P.C. Thomas never came to the cell and told her Mr. Fazari had not called the police station and then asked whether she wanted to call duty counsel. She had not brought these notes with her when she testified. Ultimately she agreed she could not “tell the court she made notes about these counsel discussions, these specific discussions.” Her failure to bring her notes to court with her in my view raises some concerns; however, her evidence initially saying she could not recall what she wrote about the discussions she had with the officers concerning a lawyer to ultimately agreeing she could not even say her notes contained the specific discussions she was recounting in her evidence in my opinion raise significant concerns as to her truthfulness on this issue.

[69] It was Ms. Tompkins evidence that P.C. Thomas just came to the cell and took her out and brought her to the private room where he told her that Mr. Fazari had been called twice but had not called back to the police station and as a result duty counsel was on the phone to speak with her. The version of events as testified to by Ms. Tompkins was not put to P.C. Thomas by Mr. Fazari in cross-examination, as it should have been pursuant to the principles in Brown v. Dunn. P.C. Thomas was not given any opportunity to respond to Ms. Tompkins’ allegation that he lied in his evidence respecting his evidence that Ms. Tompkins asked him to call duty counsel after he advised her Mr. Fazari was not calling back as he was out of his office on lunch. At no time when Ms. Tompkins was at the police station did she ever say to P.C. Thomas or to P.C. Sutherland that she did not want to speak to duty counsel because she wanted to speak to counsel of choice. She agreed with this during her cross-examination. The staff sergeant actually advised her if she had a lawyer of choice they would look this lawyer up for her. In fact, P.C. Thomas contacted Ms. Tompkins’ husband, at her request, in order to obtain the name of a lawyer of choice and he spoke to someone in that lawyer’s office and requested Mr. Fazari to contact Durham Regional Police respecting Ms. Tompkins’ arrest and provide her with legal advice.

[70] It was clear from the evidence that P.C. Thomas was not overbearing or abrasive or dismissive in his dealings with Ms. Tompkins. His actions were clearly done to facilitate her request to speak to a lawyer after he read her the right to counsel pursuant to s. 10(b) of the Charter. There was no evidence suggesting that Ms. Tompkins was anything but polite and courteous towards the police and I draw the reasonable inference P.C. Thomas and Ms. Tompkins were not at odds with each other, rather, they got along with each other despite the circumstances. Ms. Tompkins alleges that P.C. Thomas lied and made up his evidence of attending the cell where Ms. Tompkins was being held and advising her that he had left two messages for Mr. Fazari at his office at 12:25 and 12:40 p.m. and Mr. Fazari had not called the police station. According to Ms. Tompkins, P.C. Thomas did not ask her if she wanted to call duty counsel he just called duty counsel of his own accord without asking her.

[71] Ms. Tompkins admitted during her cross-examination there were a number of things she did not recall: whether she got agitated or annoyed with Ms. Rose-Smith for calling 911; she could not recall Ms. Rose-Smith knocking on the door or opening the door or touching her shoulder or rubbing her sternum to rouse her; she could not recall stumbling or having difficulty keeping her balance when she was walking and she could not recall whether she reached for the keys because of being agitated by Ms. Rose-Smith calling 911 and knowing the police were coming. She agreed the fact she had to go to the bathroom, was groggy, was still feeling the effects of alcohol and the fact she was exhausted – all these things could affect her recollection as to what exactly happened in the moment. It is my view her lack of recollection respecting so many things detrimentally affects her reliability and her credibility as a witness. Ms. Tompkins testified she knew Mr. Fazari’s name at the police station, yet on the booking video she told the staff sergeant she did not have a lawyer and she did not know the name of a lawyer. She indicated she would have to call her husband to get the name of a lawyer, which is what P.C. Thomas did. Her evidence was completely inconsistent and incorrect based on what she said on the booking video to Staff Sergeant Iheme. In her evidence Ms. Tompkins testified she did not know she had a choice as to whether to speak to duty counsel yet she later testified if P.C. Thomas said he had called Mr. Fazari twice but Mr. Fazari had still not returned the call, Ms. Tompkins testified she would have told him she did not want to speak to duty counsel as she wanted to speak to her counsel of choice. This was inconsistent with what in fact occurred, when P.C. Sutherland asked her if she was satisfied with her call to duty counsel she said, “Ya.” She agreed in cross-examination she did not say she wanted to speak to her counsel of choice when P.C. Thomas brought her to the private room or to P.C. Sutherland when he asked if she was satisfied with her phone call with duty counsel. At no point in her evidence did she ever say to any police officer she only wanted to speak to her lawyer of choice.

[72] Considering the totality of the evidence on this issue I do not accept Ms. Tompkins’ evidence that P.C. Thomas lied in his evidence. I accept P.C. Thomas’ evidence that he went to the cell Ms. Tompkins was in and advised her, he had called the lawyer her husband had provided on two occasions but the lawyer had not called the police station back and did she want him to call duty counsel for her. I find Ms. Tompkins asked P.C. Thomas to call duty counsel on her behalf at this point, which he did. This was why she told P.C. Sutherland she was satisfied with her call to duty counsel.

[73] In R. v. Winterfield, 2010 ONSC 1288, [2010] O.J. No. 952 (SCJ), at para. 62, Justice Durno held there is no automatic breach of the right to counsel if the detainee speaks to duty counsel after unsuccessfully seeking to contact their own counsel: R. v. Littleford, 2001 8559 (ON CA), [2001] O.J. No. 2437 (C.A.); and R. v. Mayo (1999), 1999 2695 (ON CA), 133 C.C.C. (3d) 168 (Ont. C.A.). Mr. Fazari did not allege in his cross-examination of P.C. Thomas that he had deliberately ignored Ms. Tompkins’ request to speak to a specific lawyer. There was no allegation during his questioning that P.C. Thomas in any way deliberately did anything to subvert or prevent Ms. Tompkins from obtaining legal advice. Mr. Fazari argued there was no “valid waiver” by Ms. Tompkins to not speak with her counsel of choice as she was not given a “reasonable opportunity” to exercise her right to counsel. It is my view, based on the authorities referred to above, Bartle, Manninen, Brydges, Baig, Willier, Devries and Sinclair that the police need only advise a detainee of her right to retain and instruct counsel without delay, that she can call any lawyer she wishes and to inform the detainee of the availability of Legal Aid and free duty counsel. This was not a situation where the detainee was waiving her right to counsel as discussed in Bartle. Further, the case of Prosper (1994), 1994 65 (SCC), 92 C.C.C, (3d) 353 (S.C.C.), has no application to the factual circumstances and context of Ms. Tompkins’ case. In Prosper the accused requested to speak to a specific lawyer. The police attempted to contact that lawyer by leaving messages at a number provided but after a period of time had elapsed the police advised the accused his lawyer was not calling back and what did he wish to do. In Prosper, at p. 274, Lamer C.J. described the required Prosper warning and its legal triggers in this way:

I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, the police are required to tell the detainee of his right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity.

[74] P.C. Thomas did what the jurisprudence required him to do in terms of the informational and implementational components. In my view Ms. Tompkins did not waive her right to speak to counsel, in fact she did speak to counsel – Mr. Pye, who was a lawyer, acting as duty counsel for Legal Aid. Ms. Tompkins spoke to Mr. Pye for approximately 8 or 9 minutes. In fact, when P.C. Sutherland attempted to engage Ms. Tompkins in conversation between the two breath tests she asked him if she had to answer his questions and then told him she did not want to. I do not know if this was advice given by Mr. Pye but in my view this would be appropriate competent advice from any lawyer speaking to an individual in police custody who was arrested for a criminal offence where the police are entitled to obtain evidence through the individual providing breath samples, as well as whether the individual should answer questions concerning their consumption of alcohol or other substances or questions concerning their driving, sleep habits the previous evening and so on.

[75] It is not so long ago that the Canadian Charter of Rights and Freedoms did not exist and when it was first made the law of Canada it was extremely difficult to put detainees in contact with a lawyer, particularly since 24 hour duty counsel did not exist. In fact, it was not until Brydges, supra, in 1990, where the Supreme Court of Canada extended the informational component of s. 10(b) to include the requirement that the detainee must be informed of the existence and availability of duty counsel through Legal Aid, and the availability of 24 hour, seven days a week, immediate free legal advice to everyone through duty counsel services assuming those services existed in the jurisdiction. The importance of free duty counsel was reiterated in Bartle, supra. In Devries, supra, at para. 23, the Ontario Court of Appeal held:

The requirement that all detainees must be told of the existence and means of accessing duty counsel and Legal Aid gives the constitutional right to counsel found in s. 10(b) real meaning. The right would be hollow for those unaware of how they might obtain immediate legal assistance if they were given no information by the authorities as to how to access legal assistance. Nor, given the dynamics at play in a detention situation, should the onus be on the detainee to make inquiries as to how he or she might exercise the constitutional right to counsel. Brydges and Bartle ensure that all detainees have sufficient information to make an informed decision as to whether to speak with counsel before submitting to police interrogation or testing. [Emphasis added]

[76] It is difficult to reconcile the attitude that has developed in recent years where duty counsel are treated as second class incompetent lawyers with the comments made in Brydges, Bartle and Devries concerning the importance of the immediate free legal advice through the toll-free number, which conveys the necessary immediacy and universal availability of legal assistance. In this case P.C. Thomas and Staff Sgt. Iheme both talked to Ms. Tompkins during the booking about whether she had a counsel of choice and she said she wanted to call her husband to get a lawyer’s name. P.C. Thomas called Ms. Tompkins’ husband and obtained Mr. Fazari’s name and phone number. Ms. Tompkins’ husband told P.C. Thomas he was going to call Mr. Fazari as well. P.C. Thomas called Mr. Fazari’s office on two occasions and waited 35 minutes before asking Ms. Tompkins whether she wanted to call duty counsel because the lawyer her husband had provided had not called back. Based on the evidence led in this trial Mr. Fazari never called the police station to speak to Ms. Tompkins.

[77] Where a detainee, like Ms. Tompkins, has been put in touch with duty counsel and received legal advice and made no complaint about the advice provided, it is my view the Supreme Court of Canada’s decision in R. v. Willier, supra, at paras. 33 & 41-43, governs. In that case the Supreme Court held where there was no complaint by a detainee as to the legal advice provided, the police were entitled to assume the accused was satisfied and to continue with their investigation, in this case, the obtaining of breath samples.

33 Detainees who choose to exercise their s. 10(b) right by contacting a lawyer trigger the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning the detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee's reasonable diligence in attempting to contact counsel: R. v. Tremblay, 1987 28 (SCC), [1987] 2 S.C.R. 435; R. v. Black, 1989 75 (SCC), [1989] 2 S.C.R. 138; R. v. Smith, 1989 27 (SCC), [1989] 2 S.C.R. 368. What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole. As Wilson J. stated in Black (pp. 154-55):

A rider is attached to these police obligations, namely that the accused must be reasonably diligent in attempting to obtain counsel if he wishes to do so. If the accused person is not diligent in this regard, then the correlative duties imposed upon the police to refrain from questioning the accused are suspended: see R. v. Tremblay, 1987 28 (SCC), [1987] 2 S.C.R. 435.

41 While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. The solicitor-client relationship is one of confidence, premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would be incompatible with the privileged nature of the relationship. The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided. Further, even if such a duty were warranted, the applicable standard of adequacy is unclear. As this Court recognized in R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27, there is a "wide range of reasonable professional assistance", and as such what is considered reasonable, sufficient, or adequate advice is ill defined and highly variable.

42 As noted, s. 10(b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them. However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. In this case, despite the brevity of Mr. Willier's conversations with Legal Aid, Mr. Willier gave no indication that these consultations were inadequate. Quite the contrary, he expressed his satisfaction with the legal advice to the interviewing officer, prior to questioning. Mr. Willier is not entitled to express such satisfaction, remain silent in the face of offers from the police for further contact with counsel, remain silent in the voir dire as to the alleged inadequacies of the actual legal advice received, and then seek a finding that the advice was inadequate because of its brevity. A s. 10(b) Charter breach cannot be founded upon an assertion of the inadequacy of Mr. Willier's legal advice. [Emphasis added]

43 Considering the circumstances of this case as a whole, the majority of the Court of Appeal correctly found that Mr. Willier did not suffer a violation of his s. 10(b) right to counsel. In no way did the police interfere with Mr. Willier's right to a reasonable opportunity to consult with counsel of choice by simply reminding him of the immediate availability of free Legal Aid after his unsuccessful attempt to call Mr. Royal. When Mr. Willier stated his preference to wait, Cst. Lahaie reasonably informed him that it was unlikely that Mr. Royal would be quick to return his call given that it was a Sunday, and reminded him of the immediate availability of duty counsel. Mr. Willier was not told that he could not wait to hear back from Mr. Royal, or that Legal Aid was his only recourse. There is no indication that his choice to call duty counsel was the product of coercion. The police had an informational duty to ensure that Mr. Willier was aware of the availability of Legal Aid, and compliance with that duty did not interfere with his right to a reasonable opportunity to contact counsel of choice. Mr. Willier was properly presented with another route by which to obtain legal advice, an option he voluntarily chose to exercise.

(See also R v Littleford, supra; R. v. Winterfield, supra; and R. v. Wilson, [2016] O.J. No. 183 (OCJ, Duncan J.); and R. v. Blackett, [2006] O.J. No. 2999 (SCJ, Ferguson J.).

[78] The observation of the Ontario Court of Appeal in R. v. Zoghaib [2005] O.J. No. 5947 (SCJ) aff'd [2006] O.J. No. 1023 (C.A.) is particularly relevant and applicable to Ms. Tompkins case:

We are in substantial agreement with the analysis of the Summary Conviction Appeal Court. The appellant was fully advised of her right to counsel at the roadside and understood those rights. On the finding of fact made by the trial judge, any subsequent misapprehension by the appellant of her right to contact her own lawyer as opposed to duty counsel was a product of her own thought processes, none of which were conveyed to or known by the officer. The Summary Conviction Appeal Court correctly held that as a matter of law the appellant's unexpressed desire to speak to her own lawyer could not result in a breach of s. 10(b) of the Charter. [Emphasis added]

(See also R. v. Papanastasiou, [2014] O.J. No. 3447 (OCJ, DeFilippis J.), at para. 22; and R. v. Ablack, [2016] O.J. No. 2597(OCJ, Javed J.), at paras. 44-49.

[79] On the facts of the instant case I do know what was going on in Ms. Tompkins’ mind concerning her being able to speak with duty counsel because she was asked by P.C. Sutherland, the qualified breath technician, if she was satisfied with her conversation with duty counsel and she replied, “Ya.” Based on the totality of the evidence I do not find Ms. Tompkins has met her onus to prove a breach of her s. 10(b) Charter rights and the application is therefore dismissed.

The Law of Care or Control

[80] The Crown can prove a defendant’s care or control of a motor vehicle by three routes. These three routes are set out in R. v. Szymanski, 2009 45328 (ON SC), [2009] O.J. No. 3623 by Durno J. at para. 29:

i. Evidence of driving because the offence of impaired driving is included in a charge of care or control. R. v. Coultis (1982), 1982 2113 (ON CA), 66 C.C.C. (2d) 385 (Ont. C.A.);

ii. Relying on the statutory presumption of care or control/operation found in s. 320.35 of the Criminal Code; and

iii. De facto or actual control, which involves the risk of danger as an essential element.

See also R. v. Smits, 2012 ONCA 524, [2012] O.J. No. 3629 (C.A.) at paras. 48-51; R. v. Agyemang, 2014 ONSC 4232, [2014] O.J. No. 5047 (S.C.J.).

[81] When examining the issues related to the offence, it is essential to identify which route is being relied upon although the Crown is not required to specify the route or routes in the information or at the outset of the trial. R. v. Hughes, [1990] O.J. No. 3160 (Gen. Div., Moldaver J., as he then was).

[82] Section 320.35 provides:

In proceedings in respect of an offence under section 320.14 or 320.15, if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion.

This is similar to the previous s. 258(1)(a) where a person occupying the seat ordinarily occupied by person who operates a motor vehicle,…shall be deemed to be in care or control. Under s. 320.11, “operates” specifically includes (a) in case of motor vehicle: to drive it or to have care or control.

[83] On the evidence presented in this trial Ms. Tompkins testified she first consumed alcohol when she was parked on Trewn Lane after arriving home sometime after 4:13 a.m. She testified she decided to smoke some cigarettes and speak to her husband concerning an argument they had the previous day because her roommates had not left for work and were still in the house. She did not want to disturb them and wanted privacy for her telephone call with her husband. This call did not go well and she testified she was very emotional and upset after it completed. She went to the trunk of her Civic and removed the 11 cans of Nutrl, a vodka soda she had purchased the previous night before starting her 12 hour shift at Darlington OPG. She continued to sit in the driver’s seat, with the keys in the ignition, so she could operate the window because she was smoking and she drank six of the cans of Nutrl and commenced drinking a seventh, which was found in the centre console upon the arrival of the police.

[84] There is no doubt Ms. Tompkins had been operating her Honda Civic vehicle prior to parking it on Trewn Lane in Bowmanville or that at the time of her being first discovered by Ms. Rose-Smith, a neighbour, her ability to operate this motor vehicle was impaired by the consumption of alcohol. This is admitted by Ms. Tompkins herself.

[85] The test for establishing care or control, absent the presumption, is set out by McIntyre J. in R. v. Towes, (1985), 1985 46 (SCC), 21 C.C.C. (3d) 24 (S.C.C.) at p. 30, as follows:

…acts of care or control, short of driving, are acts which involve some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous. Each case will depend on its own facts and the circumstances in which acts of care or control may be found will vary widely.

[86] In R. v. Wren, 2000 5674 (ON CA), [2000] O.J. No. 756 (C.A.), Feldman J.A. concluded that acts of care or control are those which could create a “risk of danger, whether from putting the car in motion or in some other way.” (paras. 16 and 29) Thus, the Crown must show a risk of danger that might result from the defendant’s interaction with the car.

[87] In R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 the Supreme Court of Canada dealt once again with the law of care or control. The Court held that in order for a conviction to flow from an individual’s care or control of a motor vehicle under s. 253(1) of the Criminal Code, there must exist circumstances creating a realistic risk of danger to persons or property. Fish J., for the majority, summarizes the essential elements of care or control, at paras. 33-34 and 41:

33 In this light, I think it helpful to set out once again the essential elements of "care or control" under s. 253(1) of the Criminal Code in this way:

1. an intentional course of conduct associated with a motor vehicle;
2. by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;
3. in circumstances that create a realistic risk of danger to persons or property.

34 The risk of danger must be realistic and not just theoretically possible: Smits, at para. 60. But nor need the risk be probable, or even serious or substantial. (Emphasis in original)

41 A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger. Accordingly, an intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control. On the other hand, a defendant who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion – without intending at that moment to do so – may nevertheless present a realistic risk of danger. [Emphasis added]

[88] Justice Fish, at para. 42 in Boudreault cites three ways in which a realistic risk of danger may arise when an intoxicated driver “uses a motor vehicle for a non-driving purpose,” identified by the Ontario Court of Appeal in R. v. Smits, at para. 53:

42 In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

[89] The determination of a “realistic risk” of danger is a finding of fact and the standard of proof that must be met by the Crown is to be assessed on a “low threshold” (See Boudreault, supra, at para. 48 and R. v. Balogun-Jabril, [2014] O.J. No. 4268, Campbell J., at paras. 40 and 50). As recognized in Boudreault, at paras. 51-52, one of the factors of particular importance in assessing the “realistic risk” of danger is whether an accused has taken care to arrange an “alternate plan” to ensure her safe transportation home.

The impact of an "alternate plan" of this sort on the court's assessment of the risk of danger depends on two considerations: first, whether the plan itself was objectively concrete and reliable; second, whether it was in fact implemented by the accused. A plan may seem watertight, but the accused's level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation. Where judgment is impaired by alcohol, it cannot be lightly assumed that the actions of the accused when behind the wheel will accord with his or her intentions either then or afterward.

[90] In Smits, at para. 63, the Ontario Court of Appeal held Durno J. in Szymanski, at para. 93, “provides an excellent, although non-exhaustive, list of factors a court might look at when engaging in a risk of danger analysis on the basis of circumstantial evidence.” Applying those factors to this case:

a) The level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accused to be fit to drive. Ms. Tompkins’ breath readings, which were obtained around two hours after Ms. Rose-Smith first approached Ms. Tompkins in the Honda Civic at 11:25 a.m., were 150 mg of alcohol in 100 ml of blood and 140 mg of alcohol in 100 ml of blood, which is close to two times the legal limit. In R. v. Paszczenko, R. v. Lima, 2010 ONCA 615, [2010] O.J. No. 3974, the Ontario Court of Appeal held that judges are entitled to take judicial notice “of the fact that the majority of human beings eliminate alcohol in a range of 10-20 milligrams of alcohol per 100 millilitres of blood per hour.” This means Ms. Tompkins’ blood/alcohol concentration at 7:00 a.m., (she testified she started drinking Nutrl after speaking with her husband, a 30-45 minutes call, commencing around 4:13 a.m., meant she started drinking at 5:00 a.m. for a period of two hours) would have been between 215 and 280 mg of alcohol in 100 ml of blood. In my view, this factor weighs against Ms. Tompkins.

b) Whether the keys were in the ignition or readily available to be placed in the ignition. The keys were in the ignition of the Honda Civic and therefore this factor weighs against Ms. Tompkins.

c) Whether the vehicle is running. The vehicle was not running but Ms. Tompkins was operating the driver’s window because she was smoking and she was opening and closing the window after engaging the key. This to some extent weighs against Ms. Tompkins.

d) The location of the vehicle, whether it was on the side of a major highway or in a parking lot. Ms. Tompkins’ vehicle was parked on the street of her home. This modestly weighs in favour of Ms. Tompkins.

e) Whether the accused had reached her destination of if the accused was still required to travel to her destination. Ms. Tompkins had reached the vicinity of her final destination, which was her home, where she resided with three other roommates. Ms. Tompkins testified she often parked on Trewn Lane where the townhouse she resided in was located due to the fact if her roommates were home there was not sufficient parking spots in the driveway. She was arriving home around 4:13 a.m. and her roommates would be leaving for work and she testified she often stayed in her vehicle to smoke cigarettes, and on this occasion she wanted privacy to speak to her husband, who the previous day she had been involved in an argument. She testified she did not want to disturb her roommates. On this occasion after she became more upset and emotional from her call with her husband she decided to consume some of the cans of Nutrl vodka soda she had purchased the previous day. She consumed six cans and part of a seventh can of vodka soda over two hours sitting in the driver’s seat of her vehicle. Given her impaired condition, which she conceded, she could have changed her mind and moved her vehicle into the driveway. In the end this factor weighs both against and to some extent, in favour of Ms. Tompkins.

f) The accused’s disposition and attitude. Ms. Tompkins had demonstrated poor judgment prior to Ms. Rose-Smith approaching her motor vehicle, approximately 7 ½ hours after she first parked on Trewn Lane. Ms. Tompkins had consumed more than six cans of Nutrl vodka soda sitting in her Honda Civic after she parked on Trewn Lane, there were 6 empty cans of Nutrl behind the passenger seat and a partial can in the centre console of her vehicle. The fact Ms. Tompkins was consuming alcohol and sitting in the driver’s seat of her vehicle demonstrates particularly bad judgment on her part. When Ms. Rose-Smith told Ms. Tompkins to wait in her vehicle as she had called 911, Ms. Tompkins became agitated and annoyed and reached towards the key, which prompted Ms. Rose-Smith to request Ms. Tompkins remove the key and give it to her because she thought Ms. Tompkins was going to drive away. Ms. Tompkins could not recall if this occurred. It is my view these answers demonstrate significantly bad judgment being exercised by Ms. Tompkins and I find this factor weighs heavily against Ms. Tompkins.

g) Whether the accused drove the vehicle to the location of drinking. Ms. Tompkins had consumed a large quantity of alcohol in her motor vehicle after she parked on Trewn Lane at a time when she admitted she was exhausted and very upset and emotional. Further, Ms. Tompkins admitted her ability to operate her vehicle was impaired by alcohol when she was roused by Ms. Rose-Smith. Consequently, there is a reasonable inference that Ms. Tompkins after consuming the 6+ cans of Nutrl vodka soda could have change her mind about operating her motor vehicle. This factor weighs against Ms. Tompkins.

h) Whether the accused started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other than driving.” I accept Ms. Tompkins’ evidence that she did not start to consume alcohol until after her conversation with her husband, which she testified caused her to be very upset and emotional. She was obviously using her motor vehicle for something other than driving. She admitted to knowing she was impaired after being roused by Ms. Rose-Smith, as well as exhausted and groggy. When Ms. Rose-Smith saw Ms. Tompkins outside her vehicle Ms. Rose-Smith described her to be unsteady on her feet. Further, Ms. Rose-Smith’s evidence was Ms. Tompkins reached for her keys after getting back into her vehicle after being told the police and an ambulance were coming. Ms. Rose-Smith believed Ms. Tompkins was going to start her vehicle and drive away and asked her to provide her keys. Ms. Tompkins also testified she became concerned about the police thinking she was impaired by alcohol. I find there is a reasonable inference of Mr. Blain having a continuing intention of being in care or control of her vehicle while impaired.

i) Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit. Ms. Tompkins testified her original intention was to drive home and go in her house to go to bed. This plan changed when she saw her roommates’ cars in the driveway, they were not up and still home. She intended to call her husband because of an argument they had had over the weekend and she wanted privacy and she intended to smoke some cigarettes. After the call with her husband she made a decision to use her vehicle to smoke and drink alcohol. Instead of going into her house to go to bed she consumed 6 cans of Nutrl vodka soda and was drinking a 7th can when she either passed out or fell asleep in her car, clearly impaired by her consumption of alcohol. In my view based on Ms. Rose-Smith’s evidence of the unsuccessful steps she took in attempting to rouse Ms. Tompkins that there is a reasonable inference that Ms. Tompkins passed out from her consumption of these cans of Nutrl over the space of 2 hours. In my view, this factor weighs against Ms. Tompkins.

j) Whether the accused had a stated intention to resume driving. Ms. Tompkins testified she did not intend to drive after she parked on Trewn Lane after arriving there from finishing work. However, her intentions changed repeatedly. Initially she got out of her vehicle and was going into her home to sleep. This changed when she got to the other side of the street and saw her roommates’ cars in the driveway. She got back in her vehicle to smoke a cigarette and call her husband to see if they could resolve her argument. After her call she was more upset and emotional and she decided not to go home, which was just down the street from where she parked, and go to bed instead she decided to get out of her vehicle, open her trunk and get the 11 cans of Nutrl and start drinking. Was she going to drink just 1 or 2 or did she continue drinking until she passed out? In my view, given the totality of the evidence discussed above, I find Ms. Tompkins could have easily changed her mind and driven to her home to park in the driveway or driven away to avoid having the police question her after Ms. Rose-Smith finally got her awake, started her vehicle and driven away. In my view this factor also weighs against Ms. Tompkins.

k) Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption: Ms. Tompkins was seated in the driver’s seat. This weighs against Ms. Tompkins.

l) Whether the accused was wearing his or her seat belt. Ms. Tompkins was not wearing her seat belt when Ms. Rose-Smith knocked on the window of the car. This weighs in Ms. Tompkins’ favour.

m) Whether the accused failed to take advantage of alternate means of leaving the scene. As indicated Ms. Tompkins was just down the street from where she rented a room in a townhouse. She did not have to utilize her vehicle as a place to consume alcohol, she could have exited her vehicle after her conversation and gone home with her 11 cans of Nutrl. Instead she retrieved them all from the trunk of her vehicle and was able to drink 6 and was working on a 7th when she passed out or fell asleep in her car, clearly impaired by her consumption of alcohol. In my view this weighs against Ms. Tompkins.

n) Whether the accused had a cell phone with which to make other arrangements and failed to do so. See (i) and (j) and (m) above. As discussed above, Ms. Tompkins could have easily divested herself of care or control of her vehicle by removing the key, exiting the vehicle and walking to her home. Yet she chose to remain in her car and consume alcohol when she was upset and emotional and exhausted from working a night shift. She ended up staying in her vehicle from the time she arrived on Trewn Lane, sometime after getting off work at 4:13 a.m. until Ms. Rose-Smith began knocking on her driver’s window at 11:25 a.m. This also weighs against Ms. Tompkins.

[91] There are a number of additional factors I take into consideration in assessing where there was a realistic risk Ms. Tompkins could change her mind and drive her vehicle. Ms. Tompkins never told Ms. Rose-Smith she was intending to walk to her home just down Trewn Lane after Ms. Rose-Smith finally roused Ms. Tompkins. Ms. Rose-Smith described Ms. Tompkins as becoming agitated and slightly confrontational with her after she told Ms. Tompkins she had called an ambulance. Ms. Rose-Smith described Ms. Tompkins as being unsteady on her feet. P.C. Thomas described Ms. Tompkins’ speech as being strongly slurred and she walked off balance and not able to take a straight step. Both Ms. Rose-Smith and P.C. Thomas observed a strong odour of alcohol coming from Ms. Tompkins. P.C. Thomas also observed the empty cans of Nutrl in the Civic and a partially full can in the cup holder.

[92] I find the risk was very real that Ms. Tompkins could drive home as her house, which was very close or she could have driven away had Ms. Rose-Smith not requested she provide the vehicle’s keys to her.

[93] Mr. Fazari argues this is a case where if I look at the factors Ms. Tompkins’ case may fall into a case where the risk is not realistic. I do not agree. It is my view given the totality of the evidence, including Ms. Tompkins already exercising bad judgment in consuming a significant quantity of alcohol while sitting in her vehicle when she was upset and emotional, her belief she was not unsteady on her feet yet both Ms. Rose-Smith and P.C. Thomas described her as being quite unsteady, off balance and not able to take a straight step. Ms. Rose-Smith’s evidence of Ms. Tompkins’ becoming agitated and confrontational with her and then reaching for the keys in my opinion demonstrates just how realistic the risk was given Ms. Tompkins’ impairment, which she herself admits. In my view the Crown has proven beyond a reasonable doubt that Ms. Tompkins was in actual or de facto care or control.

[94] A realistic risk of danger can be proven by merely sitting in a stationary motor vehicle for a non-driving purpose either by unintentionally setting the vehicle in motion; by negligence; or by a change of mind by the accused (see Boudreault, supra, Balogun-Jabril, supra, and Smits, supra, at para. 53). After considering the factors from Szymanski listed above, as well as the additional factors referred to, I have no difficulty in concluding Ms. Tompkins did indeed create a realistic risk of danger through her bad judgment. I find that of the risks outlined in Boudreault, supra, at para. 42, the risk of Ms. Tompkins unintentionally setting the vehicle in motion and by a change of mind by Ms. Tompkins have been made out by the Crown.

[95] In many ways the facts found by the Ontario Court of Appeal in Pelletier, [2000] O.J. No. 848 (C.A.), at para. 6, are comparable to this case and their holding is instructive:

In our view, there was ample evidence to support a finding that the appellant was in care and control of the vehicle. The undisputed evidence established that the appellant had the means readily available to drive the car. He was sitting in the driver's seat. Although the keys were not in the ignition they were immediately accessible to him. The appellant had driven the car to the hotel. When he left he was impaired and did not take advantage of the hotel's shuttle bus service. He told the police that he intended to sleep for a while. As the summary conviction appeal court judge pointed out there was a risk that the appellant would change his mind and drive the car. There was also the risk that, in his impaired condition, the appellant would misjudge his level of impairment and drive the car while his condition continued to pose a risk.

[96] I find therefore based on the totality of the evidence that Ms. Tompkins was in care or control of her vehicle.

Has the Crown proved beyond a reasonable doubt Ms. Tompkins’ ability to be in care or control of a motor vehicle was impaired by the consumption of alcohol?

[97] There is no definition of "impairment" in the Criminal Code. It is a factual question that must be decided on the evidence in each case: R. v. Stellato (1993), 1993 3375 (ON CA), 78 C.C.C. (3d) 380 affirmed 1994 94 (SCC), [1994] 2 S.C.R. 478; Graat v. The Queen (1982), 1982 33 (SCC), 2 C.C.C. (3d) 365 (S.C.C.), at 400-401. The critical question, however, is whether the requisite impairment occurred, not the degree of any impairment. As said by the Ontario Court of Appeal in R. v. Stellato, supra, at para. 10, adopting the language of the Prince Edward Island Court of Appeal in R. v. Campbell (1991), 1991 2751 (PE SCAD), 87 Nfld. & P.E.I.R. 269, at 320:

It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether his ability to drive is greatly or only slightly impaired. [Emphasis added.]

And later, at para. 14:

[B]efore convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [Emphasis added.]

[98] The core issue is not whether the defendant drank and drove but whether that drinking impaired his ability to drive. The legal basis for this argument is set out in the oft-quoted case of R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.), at paras. 19, 20, 24, 27; leave to appeal refused, [1996] S.C.C.A. 115, 106 C.C.C. (3d) vi (S.C.C), which adopts, explains and applies the reasoning in Stellato:

[I]t is so important not to deal with the issue of impairment separate from impairment of one's ability to drive. Stellato must not be understood to mean that a person who has anything to drink and then drives a motor vehicle commits the offence under s. 253(a) [now s. 253(1)(a)]. Nor does it mean any lack of sobriety is sufficient. ...

The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused's ability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction.

... [Stellato] speaks to degree of proof. In other words, as framed in Stellato, the conduct must be of such a nature that an impairment of the ability to operate a vehicle (be it slight or marked impairment) is proven beyond a reasonable doubt.

... It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive. Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise.

[99] In R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (Ont. C.A.) at para. 47, the Ontario Court of Appeal cited Stellato and Censoni with approval and held, “Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47.”

[100] In my view, the Crown has proven Ms. Tompkins was in care or control of her motor vehicle when her ability was impaired by the consumption of alcohol beyond a reasonable doubt based on the totality of the evidence. Ms. Rose-Smith described Ms. Tompkins as being unsteady on her feet. P.C. Thomas described Ms. Tompkins’ speech as being strongly slurred and she walked off balance and not able to take a straight step. Both Ms. Rose-Smith and P.C. Thomas observed a strong odour of alcohol coming from Ms. Tompkins breath when they were talking to her. Ms. Tompkins herself testified she believed her ability to operate a motor vehicle was impaired by the alcohol she had consumed. In Stellato the Court of Ap[peal held even slight impairment is sufficient to prove this charge. There will be a finding of guilt on that charge.

[101] Further, as a result of dismissing the s. 10(b) Charter application, the two breath samples are therefore admissible and prove beyond a reasonable doubt the offence of having care or control of a motor vehicle with 80+ mg of alcohol in 100 ml of blood. There will be a finding of guilt in respect of that charge.

[102] Pursuant to R. v. Kienapple, 1974 14 (SCC), [1974] S.C.J. No. 76. The impaired charge is conditionally stayed and a conviction will be entered on the 80+ charge.

Released: December 10, 2021

Signed: Justice Peter C. West

[^1]: Exhibit 2B, transcript of the breath video provided by Mr. Fazari, does not include this last portion of the conversation before the second breath sample was provided by Ms. Tompkins; however, it is on Exhibit 2, which contains the breath room video.