ONTARIO COURT OF JUSTICE

CITATION: R. v. Britton, 2023 ONCJ 12

DATE: 2023 01 12

COURT FILE No.: Hamilton 21-2034

BETWEEN:

HIS MAJESTY THE KING

— AND —

KORBIN BRITTON

Before Justice J.P.P. Fiorucci

Heard on July 21 and 22, 2022

Reasons for Judgment released on January 12, 2023

V. McDougall....................................................................................... counsel for the Crown

Y. Obouhov ……………….…………….……….counsel for the accused Korbin Britton

FIORUCCI J.:

INTRODUCTION

[1] On December 5, 2021, P.C. Michael Stone of the Hamilton Police Service followed the vehicle driven by the accused, Korbin Britton, for approximately seven minutes. P.C. Stone made observations of the accused’s driving which led the officer to stop the accused’s vehicle at 11:57 p.m..

[2] The officer developed the reasonable suspicion necessary to make an approved screening device (ASD) demand while he spoke with the accused at his driver’s side window. P.C. Stone did not read a formal ASD demand because he did not have an ASD. Instead, the officer told the accused that he was going to ask that a roadside device be brought to the scene to check his sobriety. P.C. Stone asked the accused to wait in his vehicle and then returned to his cruiser to perform a query on the accused’s driver’s licence and to use his police radio to request that an ASD be brought to the scene.

[3] The accused ignored P.C. Stone’s direction to remain in his vehicle. The accused got out of his vehicle and walked toward the officer’s cruiser which was parked behind the accused’s vehicle. P.C. Stone observed the accused to be unsteady on his feet when he got out of his car and walked toward the cruiser. The officer was concerned for the accused’s safety and told him to return to his vehicle. The accused did so but then exited his vehicle a second time and approached the cruiser, again displaying unsteadiness on his feet. P.C. Stone again told the accused to return to his vehicle, which he did. When the accused got out of his vehicle a third time and approached P.C. Stone, showing the same difficulties walking, the officer formed grounds to arrest the accused for impaired operation and did so at 12:09 a.m..

[4] Mr. Britton provided breath samples at the police station which established that his blood alcohol concentration exceeded the legal limit two hours after ceasing operation. The accused was charged with impaired operation and 80 and Over, contrary to sections 320.14(1)(a) and (b) of the Criminal Code.

ISSUES

[5] The accused entered not guilty pleas to both charges. He alleged violations of his Charter rights and sought exclusion of the breath readings from the evidence at trial. The prosecution was conducted as a blended voir dire. I heard the evidence pertaining to the alleged Charter breaches blended with the evidence relating to the trial issues.

[6] I must decide the following issues:

a) Did P.C. Stone breach the accused’s s. 8, 9, 10(a) and (b) Charter rights by failing to make the ASD demand promptly upon forming the requisite suspicion that the accused had alcohol in his body, by failing to advise the accused of the reason for his detention, and by failing to provide the accused with his rights to counsel (RTC) and an opportunity to use his cell phone to consult with counsel at the roadside?[^1]

b) If the accused’s Charter rights were infringed, do the infringements warrant exclusion of the breath readings pursuant to s. 24(2) of the Charter?

c) Has the Crown proven the impaired operation charge beyond a reasonable doubt?

[7] If his Charter application to exclude the breath test results is unsuccessful, the accused concedes that a conviction for the 80 and Over offence will follow since the Crown has established all of the requisite elements of that offence.

ANALYSIS

The Accused’s Charter Application seeking exclusion of the Breath Test Results

[8] At some point after the traffic stop at 11:57 p.m. and before the accused’s arrest at 12:09 a.m., P.C. Stone formed a suspicion that the accused had alcohol in his body. There is no evidence to establish the exact time at which the officer formed that suspicion. P.C. Stone did not document how long he spoke with the accused before he returned to his cruiser to request that an ASD be brought to the roadside. Although the officer stated that the initial conversation with the accused may have been “a couple of minutes”, he went on to say that he did not know how long the conversation lasted before he returned to his cruiser to request the ASD and to conduct a query on the accused’s driver’s licence.

[9] The following facts are not in dispute: i) P.C. Stone did not make a formal ASD demand before he returned to his police cruiser because he did not have an ASD, and he believed that he had to wait for the ASD to arrive before making the demand; ii) the accused was in possession of a cell phone; and iii) P.C. Stone did not provide the accused with his RTC prior to returning to the police cruiser, or at any point prior to the accused’s arrest at 12:09 a.m..

[10] Section 320.27(1)(b) of the Criminal Code requires that an individual must immediately comply with an ASD demand made by a police officer. The case law that interpreted the requirements of a valid “forthwith” demand under the predecessor section of the Criminal Code, s. 254(2), applies to the interpretation of “immediately” in s. 320.27(1)(b).[^2]

[11] The leading case is R. v. Quansah.[^3] The constitutional validity of s. 320.27 of the Criminal Code depends on "its implicit and explicit requirements of immediacy ".[^4] It is implicit that the ASD demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body.[^5] The ASD test must be administered immediately as well. Compliance with the immediacy requirement “justifies what would otherwise be sustained as violations of sections 8, 9, and 10(b) of the Charter”.[^6]

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

So long as the demand is validly made pursuant to s. 254(2) - that is, so long as it is made 'forthwith"- for Charter purposes there is no unjustified seizure or arbitrary detention or breach of the requirement to advise the detainee of his or her right to counsel. This is because this statutory detection and enforcement procedure constitutes a reasonable limit on Charter rights, given the extreme danger represented by unlicensed or impaired drivers on the roads.[^7]

[13] In Quansah, the Court of Appeal listed five things that courts must consider when assessing whether there has been compliance with the “forthwith” requirement in section 254(2).[^8] These five factors apply in determining whether the immediacy requirement in s. 320.27(1)(b) has been met:

(1) Courts must be mindful of “Parliament’s intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights”.[^9] Courts must perform the analysis of the forthwith or immediacy requirement contextually;

(2) The immediacy requirement commences at the point when the officer forms his or her reasonable suspicion. This factor requires that the demand “be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body”[^10];

(3) The third factor in Quansah addresses the time between the formulation of the officer’s reasonable suspicion through to the detainee’s response to the officer’s demand by refusing or providing a sample. The Court of Appeal stated that forthwith “connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given”.[^11] The Court of Appeal went on to state:

In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2)[^12];

(4) The fourth criterion in Quansah requires courts to take into account all of the circumstances, which may include a reasonably necessary delay where the breath test cannot immediately be performed. Examples include a situation where the ASD is not immediately available, and has to be brought from another location, or cases where a short delay is necessary to ensure an accurate result or to address an “articulated and legitimate safety concern”[^13]; and

(5) The final factor that Quansah requires courts to consider “is whether the police could realistically have fulfilled their obligation to implement the detainee’s section 10(b) rights before requiring the sample”.[^14] This factor is most applicable to cases where the officer making the ASD demand is not in a position to require immediate compliance with the demand, for instance, because an ASD is not immediately available.

[14] In Mr. Britton’s case, the ASD test was never administered. Although P.C. Stone requested that an ASD be brought to the roadside, there is no evidence that one arrived before the officer made the additional observations of the accused’s walking, which provided grounds for the arrest and the approved instrument demand.

[15] The accused argues that P.C. Stone’s failure to advise him of the reason for his detention, the officer’s delay in making the ASD demand and his failure to provide RTC and permit consultation with counsel at the roadside resulted in violations of his Charter rights, including his unlawful detention which “allowed Constable Stone to make additional observations of the [accused] in order to form grounds for the arrest on the charge of impaired operation….[and] further allowed Constable Stone to form a basis for the demand that the [accused] provide a sample of his breath into an approved instrument”.[^15] For the following reasons, I find that P.C. Stone did not breach the accused’s Charter rights.

[16] Approximately twelve minutes elapsed between the traffic stop (11:57 p.m.) and the arrest (12:09 a.m.). During this brief period, the officer had a conversation with the accused who was seated in his vehicle, made observations of some slurred speech and glossy eyes, spoke to the accused about a bottle of alcohol beside him, requested documents from the accused and received his driver’s licence. Based on his observations, P.C. Stone formed the requisite suspicion to make an ASD demand but did not make the demand. There is no evidence regarding the exact time at which P.C. Stone formed his reasonable suspicion that the accused had alcohol in his body. Nonetheless, it can be inferred from the evidence that he formed his suspicion before returning to his police cruiser to request that an ASD be brought to the scene and to query the accused’s driver’s licence.

[17] P.C. Stone’s testimony reveals that he did not know that a police officer must make the ASD demand promptly once he or she forms the suspicion that the driver has alcohol in his or her body. The officer mistakenly believed that he could not make the ASD demand because he was not in possession of the device. This raises a legitimate concern that the officer was not properly trained or informed about the requirements of making a valid s. 320.27(1)(b) demand. P.C. Stone should have read the ASD demand promptly after he formed his reasonable suspicion. Even if P.C. Stone decided to delay the reading of the demand until he had requested an ASD be brought to the scene, he should have read it promptly after radioing for the ASD.

[18] However, in the circumstances of this case, this does not automatically lead to a finding that the accused’s Charter rights were violated. Courts must perform the analysis of the immediacy requirement in s. 320.27(1)(b) contextually. A review of the authorities, including Quansah and George[^16], reveals that the Court must consider the interval between the demand and the production of the detainee's response to the demand by either refusing or providing a sample.

[19] In R. v. Wackernagel, Hill J. held that, “once the officer is in a position to make the demand, the detaining authority of the provincial authority is replaced with the detention authorized by s. 254(2) of the Code and, to fulfil the s. 10(a) Charter right, the detainee should be advised of the reason for continued detention generally by communication of the s. 254(2) demand or its substantial equivalent”.[^17] I find that P.C. Stone was a credible and reliable witness. I accept P.C. Stone’s evidence that, although he did not make a formal ASD demand to the accused before he returned to his cruiser, he advised the accused that he would be requesting that a roadside device be brought to the scene to check the accused’s sobriety.[^18] Accordingly, P.C. Stone advised the accused of the reason for his continued detention before he returned to his police cruiser to request that an ASD be brought to the scene. P.C. Stone also directed the accused to remain in his vehicle.

[20] I also accept P.C. Stone’s evidence that, when he returned to his cruiser, he used his police radio to request that an ASD be brought to the scene and queried the accused’s driver’s licence. There is no evidence before the Court regarding the time at which P.C. Stone radioed his request for an ASD or what time he learned that someone had a device that they were bringing to him.

[21] P.C. Stone admitted that he had no information regarding the estimated time the ASD would arrive at the scene. The officer also agreed with Defence counsel’s suggestion that it could have taken 20 or 30 minutes for the ASD to arrive at the scene.[^19] P.C. Stone testified that he did not advise the accused that he had the right to speak to counsel “because he wasn’t under arrest at the time”.

[22] P.C. Stone’s testimony reveals that he was unaware of the requirement to make the ASD demand promptly. Instead, he believed that he had to have the ASD in his possession before making the s. 320.27(1)(b) demand. P.C. Stone’s testimony also reveals that he did not appreciate that, in accordance with George, he ought to consider providing RTC to the accused and permit him to contact counsel with his cell phone if there was a possibility that there would be excessive delay in having the ASD brought to the scene.

[23] P.C. Stone’s ignorance of Charter standards had the potential to result in violations of the accused’s Charter rights. However, a determination of whether the accused’s Charter rights were infringed, and specifically whether the immediacy requirement in s. 320.27(1)(b) was complied with, is made by reference to the events as they actually unfolded.[^20]

[24] Although P.C. Stone failed to appreciate the requirement to promptly make the formal ASD demand, his request for an ASD when he returned to his cruiser was a step that was reasonably necessary to enable him to discharge his duty under s. 320.27(1)(b) to administer the test within the “immediate” window. I reject the accused’s argument that P.C. Stone’s failure to read the formal ASD demand and RTC to the accused before returning to his cruiser resulted in an unlawful detention which permitted the police to gather evidence from the accused.

[25] As Dawe J. noted in R. v. Kubacsek, an officer’s duty to make the demand “promptly” after forming his grounds does not necessarily mean “immediately”.[^21] Although the Quansah immediacy clock runs from the point at which the officer develops his reasonable suspicion, the officer is entitled “to take some time to consider his options and make some inquiries”.[^22] This includes an officer who makes “his first order of business to request that an ASD be brought to the scene as quickly as possible”.[^23]

[26] P.C. Stone was acting in the lawful execution of his duties when he returned to his cruiser to query the accused’s driver’s licence and request that an ASD be brought to the scene. In re-examination, P.C. Stone stated that his query of the accused’s driver’s licence was interrupted the first time the accused got out of his vehicle and approached the cruiser. Even if P.C. Stone had no intention of reading the formal demand and providing RTC to the accused while he awaited the arrival of the ASD, the officer was entitled to continue making observations of the accused that could potentially give him grounds to believe that the accused was impaired even without an ASD fail.[^24]

[27] The accused does not dispute that P.C. Stone had sufficient grounds to make the impaired operation arrest when he made the additional observations of the accused’s walking. It was not the failure of P.C. Stone to read the demand or provide RTC that resulted in the officer making these additional observations. The accused’s decision to ignore P.C. Stone’s initial direction to remain in his vehicle, and then ignore two subsequent requests from the officer to remain in his vehicle, resulted in the officer formulating grounds for an arrest without the ASD test. It would be entirely speculative to find that the accused would have acted differently had P.C. Stone read the formal ASD demand and RTC before returning to his cruiser.

[28] Therefore, the events as they actually unfolded, made it unnecessary for the police to administer an ASD test at all. No assessment can be made of whether the police administered the ASD test immediately within the meaning of the section or whether the accused had a reasonable opportunity to consult with counsel before the ASD test because no test was conducted. While this may have been fortuitous for the police, it was the result of the accused’s own actions. In these circumstances, the accused has no cause for complaint that his Charter rights were violated.

[29] The accused’s Charter application alleging violations of his section 8, 9, 10(a) and 10(b) rights is dismissed in its entirety. The results of the approved instrument breath tests are admissible on the trial.

Impaired Operation by Alcohol

[30] With respect to the charge of impaired operation, the Crown is required to establish beyond a reasonable doubt some degree of impairment to operate a motor vehicle, from slight to great.[^25] Slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether the impairment impacts on perception or field of vision, reaction or response time, judgment, or regard for the rules of the road.[^26] A court “must not fail to recognize the fine but critical distinction between ‘slight impairment’ generally, and “slight impairment of one’s ability to operate a motor vehicle’”.[^27]

[31] A trial judge must consider the cumulative effect of all of the evidence as it relates to the issue of whether a driver’s ability to operate a motor vehicle was impaired by alcohol.[^28] A trial judge is not to approach the question of impairment as involving a scorecard noting which indicia are present and which are absent.[^29] The totality of the circumstances must be considered.[^30] The question is not whether there are other possible explanations for individual circumstances, but whether the evidence, taken as a whole, leads to only one reasonable conclusion, that the accused committed the offence of impaired operation.[^31]

[32] It is not improper for a trial court to consider evidence that an accused consumed alcohol prior to driving as a factor relevant to the determination of whether an impaired operation charge has been proven.[^32] The consumption of alcohol must be a contributing factor to the driver’s impairment.[^33] In the absence of expert testimony, a court is not permitted to take judicial notice that a person who consumed a certain amount of alcohol prior to driving was impaired.[^34]

[33] The fact that an accused does not appear to be as intoxicated at the police station as civilian and police witnesses describe him or her at the roadside is not necessarily inconsistent with a finding that his or her ability to drive was impaired by the consumption of alcohol when he or she was driving.[^35] Observable indicia of impairment are not static.[^36]

[34] P.C. Stone observed the accused’s vehicle for approximately seven minutes before conducting the traffic stop. The accused backed out of a driveway directly in front of P.C. Stone’s cruiser. The officer had to slow down to approximately 30 kilometres an hour in a 60 kilometre an hour zone to allow the accused’s vehicle to come out safely onto the roadway. The accused’s vehicle was traveling eastbound on Highway 5 approaching the stoplight at Highway 6 when the accused made a quick move to the left into the left-hand turn lane. The officer described it as “a jerky kind of motion” into the left-hand turn lane. At the stoplight, the accused stopped his vehicle entirely beyond the white painted stop line marked on the roadway.

[35] When the light turned green, the accused made a wide left turn northbound onto Highway 6 into the far-right lane of three lanes of traffic. This was a merge lane. The accused continued to the very end of the merge lane and then jerked over to the lane beside it, the right traveling lane. P.C. Stone then observed the accused to have trouble maintaining the lane; he was swerving to the right and to the left within the lane. P.C. Stone also observed the accused’s vehicle cross over the white line to the left twice. The accused slowed down to 57 kilometres an hour in an 80 kilometre an hour zone.

[36] P.C. Stone stopped the accused’s vehicle at approximately 11:57 p.m.. In the next twelve minutes or so, P.C. Stone observed the accused’s eyes to be glossy and noticed some slurred speech. The accused had a 750 ml bottle of Ciroc Coconut liquor beside his right knee that had about three to four ounces left in the bottle.

[37] The accused got out of his vehicle three times and walked toward the cruiser, notwithstanding the officer’s direction to remain in his vehicle. On each occasion, P.C. Stone observed the accused to be unsteady on his feet when he approached the cruiser. The officer was also concerned for the accused’s safety because of the traffic on the roadway. The accused’s decision to exit his vehicle three times on a busy highway, in contravention of the officer’s direction to remain in his vehicle, is indicative of impaired judgment.

[38] P.C. Stone arrested the accused for impaired operation at 12:09 a.m. and read him his RTC and caution at 12:11 a.m.. P.C. Stone estimated that it would have taken approximately 20 minutes to transport the accused to the police station. The officer testified that, throughout the entire drive to the police station, the accused was very rude to him.

[39] According to P.C. Stone, the accused was still unsteady on his feet when they arrived at the police station and when he (P.C. Stone) turned the accused over to the breath technician, P.C. Daniel Sorbara. P.C. Stone also testified that the accused was still slurring when he turned him over to P.C. Sorbara.

[40] P.C. Sorbara testified that he had some interactions with the accused prior to the accused entering the breath room for testing at 1:24 a.m.. P.C. Sorbara made observations of the accused in the sally-port area where the custody sergeant met the accused. P.C. Sorbara stated that he made notations that were relevant to the impaired operation charge. His notations included the fact that, when the door of the police cruiser was open, there was a very strong odour of alcohol coming out of the back of the cruiser.

[41] P.C. Sorbara also noted that the accused was crying and very emotional but then, as soon as they walked into the custody area, his mood changed, and he became very happy. Although he could not provide the times at which he made these observations of the accused, P.C. Sorbara stated that it would have been during the booking process, which was the first time he interacted with the accused.

[42] In cross-examination, P.C. Sorbara stated that P.C. Stone was present during the booking process. During cross-examination, Defence counsel elicited from P.C. Sorbara that, on his alcohol influence report, he noted that the accused’s speech, balance, walking and turning were all “normal”. Therefore, P.C. Sorbara did not observe or note that the accused was slurring, swaying, or unsteady on his feet at any points prior to the breath testing in the breath room.

[43] P.C. Stone’s testimony that the accused continued to be unsteady on his feet and continued to slur at the police station and when he turned him over to P.C. Sorbara is, therefore, inconsistent with P.C. Sorbara’s observations. I reviewed the breath room video in its entirety. I was unable to detect any slurring of words in the breath room video, nor did the accused appear to be unsteady on his feet when he enters and exits the breath room.

[44] The inconsistencies between P.C. Stone’s testimony and the testimony of P.C. Sorbara regarding the accused’s condition at the police station, do not cause me to doubt the credibility and reliability of P.C. Stone’s evidence regarding the indicia of impairment displayed by the accused at the roadside. I found P.C. Stone to be a credible and reliable witness, who gave his evidence in a balanced way. I accept his testimony regarding the indicia of impairment he observed at the roadside, at the time most proximate to the accused’s operation of his motor vehicle.

[45] Although P.C. Sorbara testified that he noted the accused’s speech, balance, walking and turning to be normal during the booking process, there is no evidence of how long P.C. Sorbara made observations of the accused during the booking process. It is not inconceivable that P.C. Stone made observations of the accused slurring and being unsteady on his feet at certain points during his detention at the police station, including during the booking process, without P.C. Sorbara making those same observations.

[46] With respect to the breath room video, as Durno J. observed in R. v. Grant,[^37] observable indicia of impairment are not static. The fact that indicia of impairment P.C. Stone observed at the roadside are not present in the breath room video, is not inconsistent with a finding that Mr. Britton’s ability to drive was impaired by the consumption of alcohol when he was driving.[^38] The accused is first seen on the breath room video at 1:24 a.m., an hour and fifteen minutes after his arrest at 12:09 a.m..

[47] I accept P.C. Sorbara’s testimony regarding the strong odour of alcohol coming from the back of the police cruiser and the fluctuations in the accused’s mood in the sally-port. These are additional pieces of circumstantial evidence on the issue of impairment.

[48] I am satisfied beyond a reasonable doubt that the only reasonable inference that can be drawn from the cumulative effect of the evidence is that Mr. Britton’s ability to operate a conveyance was impaired by alcohol. The evidence that leads me to this conclusion includes his erratic driving, glossy eyes, slurred speech and unsteadiness on his feet at the roadside, the presence of a bottle of alcohol beside him in the vehicle, the poor judgment he displayed by exiting his vehicle three times on a busy highway in contravention of the officer’s direction to remain in his vehicle, his rude behaviour while being transported to the police station, the strong odour of alcohol coming from the back of the police cruiser during the booking process, and the fluctuations in his mood during the booking process and in the breath room video.

[49] No evidence was led to establish that the accused was impaired by a drug, or that consumption of a drug contributed to his impairment.

CONCLUSION

[50] I find Mr. Britton guilty of the charges of operating a conveyance while his ability to do so was impaired by alcohol and 80 and Over. I am entering a conditional stay in relation to the impaired operation conviction.

Released: January 12, 2023

Signed: Justice J.P.P. Fiorucci

[^1]: In his Charter Notice of Application, the accused also asserted a s. 7 Charter violation based on the failure of the police to provide medical attention. The accused abandoned this claim at the conclusion of the trial. Furthermore, mid-trial, the accused’s counsel sought leave to argue an additional Charter violation that was not included in his Notice of Application, an allegation that the police delayed the implementation of the RTC after the accused’s arrest. I denied the accused’s request to supplement his Charter application to argue this additional alleged s. 10(b) violation and provided oral reasons for doing so. [^2]: Impaired Driving and Other Criminal Code Driving Offences, Karen Jokinen and Peter Keen, Emond Montgomery Publications Limited, 2019, Toronto, ON, Chapter 16, p. 255. [^3]: R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779 (Ont. C.A.). [^4]: Ibid, at para. 26. [^5]: Ibid, at para. 25. [^6]: Ibid, at para. 21. [^7]: Ibid, at para. 22. [^8]: Ibid, at paras. 45 to 49. [^9]: Ibid, at para. 45. [^10]: Ibid, at para. 46. [^11]: Ibid, at para. 47. [^12]: Ibid, at para. 47. [^13]: Ibid, at para. 48. [^14]: Ibid, at para. 49. [^15]: Form 1 Notice of Application, Schedule “A”, Grounds to be Argued in Support of the Application, p. 3, para. (g). [^16]: R. v. George, 2004 CanLII 6210 (ON CA), [2004] O.J. No. 3287 (Ont. C.A.). [^17]: R. v. Wackernagel, [2004] O.J. No. 5543 (Ont. S.C.J.), at para. 34. [^18]: In cross-examination, P.C. Stone acknowledged that he made no specific notation in his notebook that he said this to the accused but referred to a notation he made in his notebook which assisted him in recalling that he had. The notation included an utterance made by the accused when he got out of his vehicle and approached the cruiser. According to P.C. Stone, the accused begged him not to do the roadside test and said, “don’t do this man, you’re going to ruin my life”. I invited submissions from counsel regarding what use, if any, I could make of the accused’s utterance while he was detained at the roadside, prior to RTC being provided. I also asked counsel to consider whether a voluntariness voir dire was required notwithstanding the fact that the accused’s utterance was not elicited by either counsel, but rather arose spontaneously in a response by P.C. Stone to Defence counsel’s questioning. Ultimately, Defence counsel stated that a voluntariness voir dire was not required and took the position that the Court could use the accused’s utterance for the limited purpose of assessing the credibility and reliability of P.C. Stone’s testimony that he told the accused that he would be requesting an ASD be brought to the roadside for sobriety testing. I have not used the accused’s utterance as direct evidence to incriminate the accused on the impaired operation or 80 and Over charges. [^19]: In his Form 1 Notice of Application, Schedule “A”, Detailed Statement of the Specific Factual Basis for the Application, p. 5, para. (f), the accused stated that the ASD arrived on scene at 12:14 a.m.. However, this fact was not elicited in evidence at the trial. [^20]: R. v. Latour, 1997 CanLII 1615 (ON CA), [1997] O.J. No. 2445 (Ont. C.A.), at paras. 29 and 31. [^21]: R. v. Kubacsek, [2021] O.J. No. 3949 (Ont. S.C.J.), at para. 54. [^22]: Ibid, at para. 55. [^23]: Ibid, at para. 55. [^24]: Ibid, at para. 55. [^25]: R. v. Grant, 2014 ONSC 1479, [2014] O.J. No. 1143 (Ont. S.C.J.), at para. 50; R. v. Andrews, 1996 ABCA 23, [1996] A.J. No. 8 (Alta. C.A.), at para. 23; R. v. Stellato, 1994 CanLII 94 (SCC), [1994] S.C.J. No. 51 (S.C.C.), at para. 14; R. v. Michitsch, [2004] O.J. No. 1296 (Ont. S.C.J.). [^26]: R. v. Censoni, [2001] O.J. No. 5189 (Ont. S.C.J.), at para. 47; R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (Ont. C.A.), at para. 47; R. v. Grant, supra, at para. 50. [^27]: R. v. Andrews, supra, at para. 16. [^28]: R. v. Bush, supra, at paras. 54-58; R. v. Reeves, [2018] O.J. No. 4431 (Ont. S.C.J.), at para. 76. [^29]: R. v. Bush, supra, at paras. 54-58; R. v. Reeves, supra, at para. 76. [^30]: R. v. Reeves, supra, at para. 76. [^31]: R. v. Dao, 2009 BCCA 239, at para. 16. [^32]: R. v. Cabral, [1998] O.J. No. 2170 (Ont. S.C.J.), at para. 35. [^33]: R. v. Bartello, [1997] O.J. No. 2226 (Ont. C.A.), at para. 2. [^34]: R. v. Kumric, [2006] O.J. No. 4886 (Ont. S.C.J.), at para. 13. [^35]: R. v. Grant, supra, at para. 53. [^36]: R. v. Grant, supra, at para. 53. [^37]: R. v. Grant, supra, at para. 53. [^38]: R. v. Grant, supra, at para. 53.