Ontario Court of Justice

Date: 2024 01 30 Court File No.: Toronto 4810-998-22-40003059

Between:

HIS MAJESTY THE KING

— AND —

GRACE VIEIRA

Before: Justice Christine Mainville

Heard on: January 15 and 16, 2024 Reasons for Judgment released on: January 30, 2024

Counsel: Taylor Curley, counsel for the Crown Kamran Sajid, counsel for the accused

Mainville J.:

[1] Ms. Vieira is charged with driving while impaired and with a blood alcohol level over the legal limit of 80 mg per 100 mL of blood. She was arrested after her vehicle rear-ended an electric motorcycle stopped at a red light at the intersection of Dufferin and Eglinton in Toronto.

[2] Ms. Vieira alleges that the arresting officer had insufficient grounds for demanding that she provide breath samples and for arresting her. She also alleges that the officer’s breath demands were unlawful because they did not comply with the respective immediacy and “as soon as practicable” requirements under the Criminal Code. Ms. Vieira argues that, as a result, the officer violated her right against unreasonable searches and seizures and her right against arbitrary detention, contrary to ss. 8 and 9 of the Charter.

[3] The Crown called two witnesses to the collision, including the driver of the e-bike, as well as the arresting officer, PC Turkot, who was the only officer at the scene leading up to Ms. Vieira’s arrest.

[4] The evidence from the Charter voir dire was blended with the trial.

[5] For the reasons that follow, I agree that there was a breach of both section 8 and 9 of the Charter and that the breath samples should be excluded from evidence under s. 24(2) of the Charter. As a result, Ms. Vieira is acquitted of both charges.

Factual Overview

[6] Around 10 pm on June 21, 2022, Ms. Vieira rear-ended Ms. Alessandra Cocomello, who was stopped at a red light on her e-bike. Ms. Cocomello testified that she had been stopped for some time, and that the vehicle struck her bike hard enough that if she didn’t have strong legs, she would have gone into the car ahead of her. She had no observable injuries and did not require medical attention. Ms. Cocomello had some exchange with the driver, who initially wouldn’t get out of her car, then called 911.

[7] Firefighting and ambulance services responded to the call before the police. There was some delay before PC Turkot attended the scene, at 10:30 pm, without an escort.

[8] PC Turkot had a brief exchange with the other emergency workers and a bystander who had witnessed the accident, before speaking briefly with Ms. Cocomello. No one raised the prospect of alcohol having played a role in the accident.

[9] PC Turkot then approached the vehicle involved in the accident. Ms. Vieira was standing next to the vehicle with two other individuals. After ascertaining who the driver was and having a brief interaction with Ms. Vieira, he made a demand that she provide breath samples into an approved screening device (ASD) at 10:35 pm.

[10] At 10:39 pm, after a further exchange with her and her son who had since arrived on scene, he placed her under arrest for impaired driving. He deemed it unnecessary to pursue the ASD test. He instead made a demand that she do a breathalyzer test and transported her to the police station for this purpose.

[11] At 1:15 and 1:40 am respectively, Ms. Vieira provided breath samples indicating that her blood alcohol level was 110 mg/100 mL of blood.

[12] She was charged with the offences before the court and released from the station at 3:16 am.

The Law on Reasonable Grounds

[13] To make a valid ASD demand for breath samples, an officer must have reasonable grounds to suspect that a person has alcohol in their body and has operated a motor vehicle in the preceding three hours: s. 320.27(1) of the Criminal Code.

[14] It is not necessary that an officer observe signs of impairment to have a basis for making a roadside breath demand. It is also not necessary that the officer suspect that the person is committing a crime: R. v. Schouten, 2016 ONCA 872, at para. 26.

[15] The totality of the circumstances must be considered. The presence of innocent possibilities does not negate the suspicion: Impaired Driving and Other Criminal Code Driving Offences, Karen Jokinen and Peter Keen, Emond Montgomery Publications Limited, 2019, Toronto, ON, Chapter 16, p. 248; R. v. Mitchell, 2013 MBCA 44, at para. 21.

[16] Nevertheless, the suspicion must be grounded in objective facts, not on a mere hunch, even if grounded in an officer’s experience: R. v. Chehil, 2013 SCC 49, at para. 47; R. v. Zakos, 2022 ONCA 121, at paras. 36-37, 42. The requirement that an officer have reasonable suspicion is not only a statutory requirement, but also a constitutional precondition to a lawful search.

[17] I note that s. 320.27(2) allows a peace officer who has an ASD in his possession to demand a breath sample in the absence of reasonable suspicion. But contrary to subsection (1) referenced above, this subsection requires that the subject of the demand be “operating a motor vehicle” – which was not the case here. The Crown declined to rely on this subsection.

[18] To make a valid breathalyzer demand for breath samples, the officer must have reasonable grounds to believe that the person has operated a motor vehicle while their ability to do so was impaired to any degree by alcohol: s. 320.28(1) of the Code. The same threshold must be met to arrest a person for impaired driving.

[19] As with the ASD threshold, the grounds to make a breathalyzer demand have both a subjective and an objective component. The officer must have an honest belief the suspect committed the offence, and a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest and demand: R. v. Bush, 2010 ONCA 554, at para. 38.

[20] Absent the necessary subjective and objectively reasonable grounds to suspect or believe, the demand will be invalid and there will be a breach of the detained person’s s. 8 and 9 Charter rights to be protected from unreasonable search and seizure, and from arbitrary detention.

Application to this Case

[21] I find that PC Turkot lacked both the requisite grounds to make the ASD demand and to subsequently arrest Ms. Vieira for impaired driving and make the breathalyzer demand.

Initial Interaction and ASD Demand

[22] When PC Turkot arrived on scene, he only knew that he was responding to a motor vehicle collision involving an e-bike that had been rear-ended and that there were possible injuries. The firefighter and EMS worker did not identify the driver of the car nor convey any grounds to suspect that alcohol was involved. PC Turkot was advised that there were no injuries such that no transport to the hospital was required.

[23] These interactions as well as all subsequent ones the officer had while on scene were captured by his body worn camera (BWC).

[24] Ms. Cocomello advised the officer that her bike had initially been stuck under the other vehicle. She also informed him that the woman wanted to offer her $50 and that she had rejected that offer. Ms. Cocomello pointed to the other vehicle, which was pulled over near the curb. She did not identify the driver of the vehicle other than mentioning it was a “she” and pointing toward the vehicle. She also did not suggest that the driver may have been drinking or point to any indicators that might suggest as much.

[25] PC Turkot did not have the driver’s name or any description of the driver as he approached the car involved in the collision. Three individuals stood near the car when he did so: Ms. Vieira, who was leaning against the car smoking a cigarette, another woman who was also smoking and who was standing next to a male on the sidewalk, both of whom were speaking with Ms. Vieira.

[26] PC Turkot first notified the two women that he would speak to them after their cigarettes: “Alright girls, when you’re done your cigarettes, let me know, I will speak to you. I don’t want to get cancer because of you”. This prompted a reaction of surprise from Ms. Vieira, who replied “Really?”, and the officer re-affirmed his position. Notably, he stood a distance away from them.

[27] PC Turkot told the group he was investigating a collision and stated, “I’m not a smoker, so put the cigarette out and I’m going to speak to you [about] what happened.” Ms. Vieira replied, “Speak to whoever you have to”, gesturing toward the complainant and others standing around. The officer replied by asking who the driver was and asking her specifically if she was the driver. Ms. Vieira responded yes. He indicated that he would therefore speak to her and told her she was obligated by law to tell him what happened. She confirmed that was her understanding.

[28] PC Turkot then stated, “So put it out and speak to me”. She asked him to calm down, signaling with her hands to lower his volume. He replied “no”, but then did lower his tone a bit. Ms. Vieira told him to speak to the complainant, since she was also a driver. He informed her that he already had. She took one last drag of her cigarette before putting it out, looking away and saying, “There you go”.

[29] As she did this, the officer asked if she had anything to drink tonight, and she replied “no”. He then immediately stated, “We are going to do a breathalyzer test regardless, ok?” She replied, “You can do whatever you have to do.” The officer then came closer to her and went to his cruiser to retrieve the ASD equipment.

[30] To be sure, an officer does not have to accept the accused’s denials regarding the consumption of alcohol: R. v. Carson, 2009 ONCA 157. Nevertheless, as set out above, there must be some objective indicia that alcohol was consumed.

[31] In this case, PC Turkot testified in examination-in-chief that upon asking Ms. Vieira what had happened, his “observations right away” were that her behaviour was not normal.

[32] Specifically, he pointed to the fact that her speech was “lazy”, and that it appeared as though she had problems focusing on what he was asking her or telling her. She wasn’t paying attention, paying more attention to her phone than to him, “almost like she wanted to hide something”, brush him off, and walk away. He added that she was avoiding eye contact with him, not talking to him, and keeping her distance at all times – rather than welcoming his presence given the collision and need for assistance. He added that her eyes were “all over the place”, and that she remained leaning against the car, not wanting to move, as though she wanted to hide balance issues.

[33] He testified that as he was trying to get her involved in the conversation, he noticed that her speech was slightly slower than normal. He also indicated that she was “ignorant” at times, explaining that it was akin to his prior experience interacting with intoxicated individuals being kicked out of bars and night clubs, where he used to do security – they would not be listening to the facts and would not get it. They exhibited the same type of behaviour as Ms. Vieira such as mood changes and lazy speech.

[34] PC Turkot also testified that at some point, he smelled a strong odour of alcohol on her breath as she was speaking to him and as he came closer to her.

[35] He testified that as a result of all these observations, he formed the requisite grounds to suspect and, at 10:36 pm, made a demand for breath samples.

[36] I am concerned by the lack of alignment between PC Turkot’s testimony and some of what is depicted on the video and audio recording from his body worn camera.

[37] The video shows that when PC Turkot first approached Ms. Vieira and the other two individuals, she engaged with him directly. She was not on the phone at that time and maintained eye contact when answering his questions and during the exchange about the cigarettes.

[38] Another direct exchange followed the discussion about the cigarettes. Indeed, Ms. Vieira engaged with the officer directly when he asked who the driver was and indicated that she was obligated by law to tell him what happened. It is only at the point when he then asked her to put her cigarette out that she looks down. She is still not on the phone.

[39] I see no indication that Ms. Vieira had any issues focusing on the discussion at hand or any difficulty understanding. Rather, I find that she became irritated with the officer, having clearly not appreciated the cancer comment and direction that she put out her cigarette. Although she complied with her legal obligations and answered questions, her attitude became dismissive. She eventually started looking away, in a disengaged manner.

[40] This is no doubt part of what PC Turkot was referring to when he stated that Ms. Vieira was not acting normally because she wasn’t welcoming him and was instead brushing him off.

[41] Given the right to silence, I would be hard-pressed to infer suspicion from a person’s lack of forwardness or eagerness to interact with the police. In my view, it would be akin to holding a detained person’s silence against them. That would be contrary to the right to silence – even if for the limited purpose of affording grounds to suspect that they have been drinking. Some members of the community will also be less welcoming with the police; that does not make their behaviour suspicious – in particular where the initial interaction was immediately a negative one, as it was in this case.

[42] Moreover, it is not accurate to say that Ms. Vieira was always keeping her distance, when she never moved and it is the officer who wanted a distance maintained, given the secondary smoke.

[43] I also did not perceive any laziness or slowness in her speech, or anything akin to the slurring of words, in this initial interaction. To the contrary, she is generally snippy with the officer and fully alert.

[44] I accept that the smell of alcohol on Ms. Vieira’s breath on its own would be sufficient to reasonably afford the requisite grounds: Carson, at para. 1; Schouten, at paras. 17, 26-29. However, I do not accept that the officer did in fact smell alcohol on her breath.

[45] During the early interaction referenced above, the officer is standing at some distance from Ms. Vieira, consistent with his desire to stay clear of any second-hand smoke. He is wearing a medical mask considering the pandemic, and acknowledged, despite initially minimizing the distance between the two, that he would have kept some distance due to the Covid protocols that were in place at the time.

[46] The officer first testified that he was as close as he could be without invading her privacy, estimating that he was standing maybe half a metre away. The in-car camera (ICC) video shows that when he first interacts with Ms. Vieira, he is standing what appears to be at least 2 metres away from her. He only comes closer to her as he tells her they will be doing a breath test, at 10:35 pm.

[47] Further, after first acknowledging that Ms. Vieira was initially smoking when he was speaking to her and that he could smell the cigarette smoke, he indicated he could not smell the cigarette after she put it out, testifying that he did not know how many cigarettes it takes before any lingering smell might exist. His testimony was that at that time, he could smell the alcohol off her breath but no smell of cigarette.

[48] I find this highly implausible. If he could not smell any cigarette smell off her breath from where he stood, in particular in the moments right after she put it out, I do not accept that he could have smelled any alcohol.

[49] I note that the officer also never stated to Ms. Vieira that he could smell alcohol on her breath, or at all, including when he said he would screen her for blood alcohol “regardless” of her indication that she had not consumed any, or after she asked why she was being arrested for impaired driving.

[50] Certainly, the odour of an alcoholic beverage on the driver’s breath is not a precondition to a valid ASD demand: see R. v. Zoravkovic, [1998] O.J. No. 2668 (Ont. C.A.); R. v. Singh, [2006] O.J. No. 5133 (Ont. S.C.J.).

[51] But what is left? While the fact of smoking is occasionally seen as suspicious on the basis that it may be done to mask the smell of alcohol, the officer did not mention it here. In any event, I do not read anything into the cigarette use in the circumstances of this case given the delay before the police arrival on scene. The delay was such that people close to Ms. Vieira had attended the scene in the interim. They were visibly all waiting for emergency services to complete their work and having a cigarette while they waited. Indeed, Ms. Vieira was not alone having a cigarette as she conversed with her acquaintances. This was not a situation where a driver immediately lit up upon a collision or interception by the police, while in their vehicle or immediately upon exiting the vehicle and interacting with the police.

[52] Moreover, the fact of her leaning on the car – just as the fact of smoking – could not objectively be said to have been suspicious in the circumstances of this case, where the parties had been waiting some time for the police to arrive. There was no instance of Ms. Vieira almost losing her balance during this time or appearing to require the car for support.

[53] Indeed, after observing the video in cross-examination, the officer clarified that he did not rely on the balancing issues to make the ASD demand – only the arrest. This is because prior to the ASD demand, Ms. Vieira was leaning on her vehicle the entire time – there would have been no opportunity to observe her balance. She is not moving around as the officer also claimed in his notes.

[54] It appears as though what PC Turkot found most suspicious in this regard was that this leaning, along with her general demeanour, signalled her uninterest in his presence and in the situation. But as stated above, I am not prepared to read anything into the fact that she was not eager to communicate with the police or being forward with him.

[55] Further, while the officer did not raise the collision as forming part of his grounds until it was asked of him in re-examination, I agree that this would normally be some objective indicator of potential impairment. However, the nature of the collision in this case is not particularly telling.

[56] Fender benders or rear-enders regularly occur because of momentary distractions. They are likely the most common form of car accidents. Ms. Vieira did not leave the roadway to collide into an immoveable object. She was driving in the correct lane and was not driving fast, according to the bystander. Nor were there any other indicia of poor or erratic driving. Altogether, this was a marginal indicator that alcohol might be involved, as compared to other forms of driving or accidents. This might explain why PC Turkot himself never raised the collision of his own motion. Nor did any of the other witnesses or people at the scene raise the prospect of impairment.

[57] The reasonable grounds to suspect standard would be too diluted if the mere fact of a minor collision and subsequent dismissiveness toward the police sufficed to conclude that the person had consumed alcohol. Up until the point of the ASD demand in this case, I see no objective indicia of alcohol consumption.

[58] Altogether, and without dissecting the grounds or considering them in silo, I also do not accept that Ms. Vieira’s demeanour was objectively suspicious or “not normal”.

[59] Instead, I believe PC Turkot operated on a hunch, without taking the time to investigate. This is insufficient to meet the reasonable suspicion standard, even if this hunch is “based on intuition gained by experience”: R. v. Mann, 2004 SCC 52, at para. 30; Zakos, paras. 37, 42. As also explained in Chehil, at para. 47, “A police officer’s educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard”.

[60] I therefore find that an assessment of the objectively discernible facts fails to establish that PC Turkot’s suspicion that the accused had alcohol in her body was reasonable in all the circumstances. Accordingly, the ASD demand was not valid and there were violations of sections 8 and 9 of the Charter.

Arrest and Breathalyzer Demand

[61] After the officer returned from retrieving the ASD, Ms. Vieira was on the phone. She was holding her phone as though she had someone on speaker mode. From that point on, she was more focused on the phone and was no longer directly looking at the officer. The officer asked her if she was listening to him, and who she was calling. She told him she was calling “who I need to”. He responded that he would read her the demand once.

[62] PC Turkot informed her that they would wait five minutes before conducting the test given that she had just finished smoking a cigarette. His recollection, based on his training, was that the chemicals from the cigarette can affect the ASD mechanisms, though he did not believe it would affect the reading.

[63] PC Turkot then directed Ms. Vieira to follow him so that he could show her how to do the test. She challenged this given his indication that they first needed to wait. He responded that they would go wait at his car.

[64] At this point, Ms. Vieira’s son arrived on scene. The officer asked him to advise his mother to accompany him to his cruiser. Both Ms. Vieira and her son were speaking to someone on their phones. The officer then asked Ms. Vieira whether she was intoxicated, whether she had been drinking, and whether she was afraid to show him that she couldn’t walk a straight line. She denied these suggestions and told him she would walk to his car.

[65] The officer then asked Ms. Vieira to walk in front of him and he would follow her. She responded that she would follow him instead. A back and forth ensued about who would follow who.

[66] PC Turkot testified that he wanted to see her walk given that he “knew” she had balance problems when she wasn’t leaning on the car. He said she appeared dazed, slower in understanding and ignorant, which he found very different. He wanted to get her back off the car “because she kept on insisting on being glued to the car”.

[67] At this point, Ms. Vieira was continuing to pay attention to her phone and not to him. I note that at no point while she is holding the telephone and apparently texting with it is Ms. Vieira fumbling with it, or otherwise having difficulty holding it.

[68] Ms. Vieira’s son then asked PC Turkot to calm down, indicating that that is his mother. PC Turkot told the son to step aside, that he was about to arrest his mother.

[69] When both Ms. Vieira and her son asked “for what?”, the officer replied that he thought she was intoxicated. He told her to come to his car and told her son to walk away twice, before informing him that he was not going to hurt his mother, to give him some space.

[70] PC Turkot testified that he told the son he was going to arrest his mother and to walk away because at that point, he was getting more and more evidence of impairment and he was “very close to placing her under arrest”. He did not know how the son would react to this, so he told him to walk away and that nothing would happen to her. He indicated that he did this to avoid the situation escalating.

[71] In cross-examination, PC Turkot acknowledged that he was still forming his grounds to suspect – that they had not already been formed – when he told Ms. Vieira’s son to walk away because he needed some space. He said that at that time, he was seeing all these indicia of impairment, and was forming a suspicion.

[72] This testimony further serves to undermine PC Turkot’s reliability and credibility. There was some indication that he may have conflated the tests and different standards he had to apply that evening, but regardless of whether that was merely an error made in his testimony, I do not accept as credible that his interaction with Ms. Vieira’s son was an effort at de-escalation. If anything, informing Ms. Vieira’s son that he was about to arrest his mother would only serve to escalate the situation.

[73] PC Turkot then again asked Ms. Vieira to walk to the cruiser to do the test. She took a couple steps toward the police car, stating “Go ahead, I’m following you”, and waited for the officer to walk ahead. The officer again told her that he was following her. Ms. Vieira was also still apparently trying to reach someone on her phone. After the son told PC Turkot that he couldn’t speak to his mom like that, the officer told Ms. Vieira that she was clearly intoxicated, so he was placing her under arrest. He told her to put her hands behind her back, and to give him the phone as he snatched it away from her.

[74] This exchange was followed by PC Turkot directing the son to walk away and telling him to give him space, that he was “going to get hurt”. When the son questioned him about how he was going to get hurt, the officer told him “Yes, so walk away, give me some space”. PC Turkot proceeded to handcuff Ms. Vieira.

[75] PC Turkot testified that telling the son that he was going to get hurt was a scare tactic. He then walked back this characterization, explaining that it was “more of a defence thing, just calm down and let me do my work” – to keep the peace, because he didn’t want to get hurt.

[76] While I can understand the need to be authoritative and have some sympathy for what he was contending with, I cannot accept PC Turkot’s evidence that this comment was aimed at bringing the temperature down. Indeed, the officer added in testimony that if the son wanted to continue this behaviour and be combative, he would protect himself. If he truly wished to ensure that Ms. Vieira’s son and other persons accompanying her didn’t get upset or become a threat upon him arresting her, PC Turkot could have simply requested that they give him some space to do his job rather than raise the prospect of arrest, then proceed with the arrest in the manner he did and inform the son that he might get hurt.

[77] In my assessment, the decision to arrest rather than follow through with the ASD demand was actually prompted by the officer’s frustration with Ms. Vieira and her son being difficult. While PC Turkot disagreed that he was becoming frustrated as he was dealing with Ms. Vieira, he agreed that she was annoying him when she wasn’t listening and he was trying to get her attention. This is supported by the impatient way he snatched the phone away from her and placed it on the car.

[78] This conclusion is also supported by the fact that the indicia of impairment that PC Turkot points to are again largely not substantiated by the video recording.

[79] PC Turkot testified that when he finally managed to convince Ms. Vieira to get her back off the car and get rid of the support that was holding her steady, he observed balance problems and “she had to at times go back”. He explained that she had difficulty standing straight and steady, her body slightly rocking, and smelling an alcoholic beverage, he formed the opinion that she was impaired such that he decided he no longer needed to pursue the approved screening device route. Instead, at 10:39 pm, he placed her under arrest for impaired driving.

[80] Here again, I did not perceive any swaying or balance issues on Ms. Vieira’s part. When challenged by defence counsel to point out where on the video he says Ms. Vieira lost her balance, PC Turkot eventually – after the video was replayed more than once – pointed to some instances of this.

[81] In my view, if those instances were indicative of a loss of balance, something which is not readily apparent on the video, it was of the slightest degree. Even the officer, when asked to point to such instances in the video, described it as “slight rocking”.

[82] Ms. Vieira also only took a couple steps before being placed under arrest, and those steps came after the indication to her son that she was about to be arrested. She only walked to the police cruiser after she was already handcuffed and under arrest. While she was proceeding slowly when she took those initial two steps, in my assessment, this was because she was trying to get the officer to walk ahead. There was no loss of balance or swaying at that time that I could perceive from the video.

[83] I also do not find that Ms. Vieira was being slow. When asked in cross-examination to point to an instance in the video where Ms. Vieira’s speech was “lazy” or sluggish, PC Turkot indicated that he was referring to the whole interaction, up to the point of arrest, and that he could not point to any particular instance. From my observation of the video, the inability to do so stems from the fact that her speech is not slow or sluggish. She sometimes had delayed responses, but this appeared to be because she didn’t care to engage with him and she was on her phone at the same time, clearly distracted from the interaction with the officer. Despite this distraction, she always did answer his questions and spoke in a regular manner when she did so. She was responsive to the question being asked, even being sharp when she pointed out to him that they didn’t need to go to his car right away since he had said they needed to wait.

[84] During this period, PC Turkot also again never stated on the video that he could smell alcohol, nor do I believe that he began smelling the odour of alcohol during this further interaction.

[85] Certainly, Ms. Vieira was being argumentative in a situation where she had to comply. This could arguably be some indication of a lack of comprehension and a sign of impairment. But I assess it objectively as stemming more from her overall negative interaction with the officer than from any impairment of her faculties. In any event, this, on its own, or in conjunction with the lingering bits of indicia, such as the accident, would in my view not suffice to make out reasonable and probable grounds to believe that her ability to operate a vehicle was impaired to any degree.

[86] The officer frequently pointed to his experience interacting with intoxicated persons and the Crown urged me to defer to this experience. But hunches or intuition grounded in an officer’s experience will not suffice, nor is deference owed to a police officer’s view of the circumstances based on his training or experience in the field: Zakos, at para. 42; Chehil, at para. 47. The officer’s suspicion must be “based in objective facts that stand up to independent scrutiny”: Zakos, at para. 37; Chehil, at para. 46.

[87] In this case, when asked to point in the video to the various indicators of alcohol consumption or impairment that he cited, the officer regularly stated that it was the entirety of the interaction that made those indicia come through.

[88] In my assessment, a reasonable person standing in the shoes of the police officer would not have held a reasonable belief that Ms. Vieira was impaired. This is supported by the fact that none of the witnesses on scene and the emergency services that first attended raised the prospect of impairment.

[89] Altogether, I find that PC Turkot proceeded to arrest Ms. Vieira despite having failed to substantiate his initial hunch. He did so, in my view, because of the conflictual dynamic between him and the parties he was interacting with. This resulted in a further breach of ss. 8 and 9 of the Charter.

Grounds that Ms. Vieira had been operating a motor vehicle

[90] The defence also argued that PC Turkot had no grounds to suspect or believe that Ms. Vieira had been the one operating the motor vehicle – that is, that she was the driver. Counsel argues that her statement to the officer identifying herself as the driver was compelled, such that it cannot be relied upon even for the purpose of establishing grounds.

[91] I accept that as he approached the car, PC Turkot did not know which of the two women was the driver. This is consistent with him asking them who the driver was. It was only after he asked Ms. Vieira specifically that she identified herself as the driver. Prior to that, Ms. Vieira had told PC Turkot to “speak to whomever you need to.”

[92] While PC Turkot testified that the e-bike driver also pointed to the driver when she pointed to the vehicle, I do not accept that the pointing was specifically directed at the driver. He first testified in chief that the bike rider had pointed “to the motor vehicle”. It is only after being asked how he identified the driver that he mentioned having been pointed to both the car and the female standing outside the car. He agreed there was another woman with Ms. Vieira as Ms. Cocomello pointed and he approached them.

[93] He also did not initially mention the other two individuals standing with Ms. Vieira, but the video from his body worn camera makes plain that she was not standing alone. The video does not show that the driver was specifically pointed out to him, nor do I accept that he knew who the driver was when he approached the car, other than it was presumably one of the two women standing near the car.

[94] The officer’s identification of the driver for the purpose of establishing the requisite grounds therefore hinged on Ms. Vieira statement to him identifying herself as the driver.

[95] The jurisprudence states that if this statement from Ms. Vieira was compelled, it cannot be used for any purpose, including to form reasonable grounds to make a breath demand: R. v. Soules, 2011 ONCA 429; R. v. Roberts, 2018 ONCA 411. Indeed, where a driver is compelled by statute to make a statement to the police, those statements “are inadmissible in criminal proceedings against the declarant because their admission would violate the principle against self-incrimination” and would thus infringe s. 7 of the Charter: White, at para. 30; Soules, at para. 28.

[96] However, to benefit from this protection, Ms. Vieira must have honestly and reasonably believed that she had a legal duty to make the statement, and that she indeed made it because she felt compelled by this legal duty to do so. She bears this onus on a balance of probabilities: White, at para. 29; Soules, at para. 29; Roberts, at para. 40. While the defence will generally be expected to call evidence on this issue, in some cases, as with any other evidentiary matter, the inference may well arise from evidence called by the prosecution.

[97] That is the case here. Ms. Vieira did not call evidence on the issue but as conceded by the Crown, I am satisfied that this inference can be drawn from the evidence before me.

[98] First, Ms. Vieira was not particularly interested in speaking with PC Turkot. As he observed, she did not go to him when he arrived or appear eager to communicate with him when he did approach. She first directed him to speak to the complainant. She did not volunteer her version of the accident, or any other information.

[99] PC Turkot then specifically asked her whether she was the driver. When she confirmed that she was, he informed her that she had a legal obligation to tell him what happened. She responded, “Yeah, exactly”, thereby confirming her understanding that she had such an obligation.

[100] This was a reasonable understanding given the obligation under s. 199 of the Highway Traffic Act – which was being relied on by PC Turkot – for a driver to report an accident they have been involved in, when it results in injury or in property damage of a certain amount. Here, Ms. Cocomello had refused Ms. Vieira’s offer of $50 for the damages occasioned, estimating that the repairs would be much more costly. As a result, Ms. Cocomello had decided that the police needed to be involved. Ms. Vieira therefore remained at the scene of the accident and awaited police arrival, even though the e-bike had been pulled free and everyone could have otherwise been on their way.

[101] I find that Ms. Vieira believed she was compelled to answer the officer’s questions regarding the accident, including identifying herself as the driver.

[102] The Crown however relies on s. 320.31(9) of the Criminal Code, which provides that “A statement made by a person to a peace officer, including a statement compelled under a provincial Act, is admissible in evidence for the purpose of justifying a demand made under section 320.27 or 320.28.”

[103] The Alberta Court of King’s Bench found that this provision contravened s. 7 of the Charter and was not saved by s. 1: R. v. Korduner, 2022 ABKB 790 (leave to appeal has recently been granted: R. v. Korduner, 2023 ABCA 82). The finding is of course not binding on me.

[104] In Ontario, the defence challenged the constitutionality of the provision in R. v. Tim, 2019 ONSC 935. But because Justice Speyer found that the accused’s statements in that case were not statutorily compelled, it was not necessary for her to consider whether s. 320.31(9) was constitutionally infirm: see para. 39.

[105] In this case, no constitutional challenge was brought, and I find that I am bound to apply the provision. As such, despite having been compelled, the officer could rely on Ms. Vieira’s statement and thus had the requisite grounds to believe she was the person who had just operated a motor vehicle.

Unlawful demands

[106] Counsel further argued that because PC Turkot informed Ms. Vieira that they would have to wait five minutes before performing the test, the ASD demand was unlawful given that the officer did not comply with the statutory requirement that it be administered “immediately”: s. 320.27(1)(b); R. v. Breault, 2023 SCC 9.

[107] I am not persuaded by this argument in the circumstances of this case. PC Turkot testified that he believed, pursuant to his training, that he had to wait when the individual had just smoked a cigarette because the chemicals in the person’s mouth can affect the ASD’s mechanisms.

[108] While he was partially mistaken, the alcotest guidelines adduced in evidence do state that tobacco smoke may damage the device’s sensor, and that while this will not affect the analysis of the breath sample, the manufacturing recommendation is that there be an interval of at least two minutes after smoking before a test is conducted.

[109] I accept that the officer genuinely believed he needed to wait five minutes based on the training he had received. Given the above guidelines, this was objectively reasonable. Unusual circumstances relating to the use of the ASD or the reliability of the result that will be generated may justify a flexible interpretation of the immediacy requirement: Breault, at paras. 54 and 57.

[110] In any event, this delay did not materialize as it prompted a further exchange between Ms. Vieira and the officer, which ultimately led to him foregoing the ASD test, placing her under arrest, and making a breathalyzer demand.

[111] Counsel also argued that the breathalyzer demand was invalid given that the breath samples were not obtained “as soon as practicable”, as required by s. 320.28(1)(a). He points in particular to the delay in the sallyport at the station, where the officer and Ms. Vieira were told to wait until the arrival of a female officer for a pat down search of Ms. Vieira.

[112] Counsel cites various cases from this court, including R. v. Pillar, 2020 ONCJ 394, in support of his argument. However, I find that I am bound by R. v. Ridley, 2023 ONSC 5967, at paras. 35 and 38, where the Superior Court confirmed that s. 320.28 does not impose a requirement that the police take breath samples as soon as practicable and that a failure to do does not constitute a Charter breach.

[113] While the decision and other Superior Court precedents it cites do not consider the implications of the Supreme Court’s recent analysis in Breault in respect of the analogous s. 320.27(1)(b), the Supreme Court did not directly address the issue raised in this case and in Ridley. As such, I am bound to reject counsel’s submission.

Exclusion of evidence under section 24(2)

[114] As a remedy for the identified Charter violations, the defence seeks the exclusion of “all evidence of impairment” pursuant to s. 24(2) of the Charter.

[115] In this case, two civilian witnesses gave some evidence to the court that could well be said to bear on impairment. This evidence was not “obtained in a manner” that violated the Charter and ought not be the subject of exclusion.

[116] I will therefore contend with this application as it applies to the breath samples and resulting breath readings. I have already found that the officer’s observations were insufficient to ground any reasonable perception of impairment. And the evidence of the two civilian witnesses would not be sufficient to substantiate that Ms. Vieira was impaired, nor did the Crown suggest as much. Accordingly, an acquittal on both counts would follow the exclusion of the breath samples.

[117] Recently, in R. v. McColman, 2023 SCC 8, the Supreme Court considered s. 24(2) in the context of a drinking and driving case. It explained the required analysis at paras. 53 and ff., as follows:

Section 24(2) requires that evidence obtained in a manner that infringes the Charter rights of an accused be excluded from the trial if it is established that “having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”. The s. 24(2) analysis is an objective one, evaluated from the perspective of a reasonable person, and the burden to persuade a court that admission of the evidence would bring the administration of justice into disrepute rests on the party seeking exclusion: Grant, at para. 68.

Section 24(2) is focused on maintaining the long-term integrity of, and public confidence in, the justice system. Accordingly, the exclusion of evidence under s. 24(2) is directed not at punishing police misconduct or compensating the accused, but rather at systemic and institutional concerns: Grant, at para. 70. In Grant, this Court explained that the s. 24(2) analysis engages three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter‑protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. Courts are tasked with balancing the assessments under each of these lines of inquiry, but as recognized in Grant, “[t]he balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision”: para. 140.

Trial courts must evaluate each of the three lines of inquiry thoroughly. A cursory review of the Grant test prevents appropriate appellate review and transforms s. 24(2) from a contextual inquiry into a bright-line rule.

[118] The crux of the analysis is whether the admission of the evidence would bring the administration of justice into disrepute, having regard to all the circumstances. This is measured by evaluating and balancing the three above-mentioned factors, known as the “Grant factors” pursuant to R. v. Grant, 2009 SCC 32.

(1) Seriousness of the Charter-infringing conduct

[119] As explained in McColman, at paras. 57-58:

The first line of inquiry focuses on the extent to which the state conduct at issue deviates from the rule of law. As this Court stated in Grant, at para. 72, this line of inquiry “requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct”. Or as this Court phrased it in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22: “Did [the police conduct] involve misconduct from which the court should be concerned to dissociate itself?”

In evaluating the gravity of the state conduct at issue, a court must “situate that conduct on a scale of culpability”: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 43. As Justice Doherty observed in R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, “the graver the state’s misconduct the stronger the need to preserve the long‑term repute of the administration of justice by disassociating the court’s processes from that misconduct”: para. 23. To properly situate state conduct on the “scale of culpability”, courts must also ask whether the presence of surrounding circumstances attenuates or exacerbates the seriousness of the state conduct: Grant, at para. 75. Were the police compelled to act quickly in order to prevent the disappearance of evidence? Did the police act in good faith? Could the police have obtained the evidence without a Charter violation? Only by adopting a holistic analysis can a court properly situate state conduct on the scale of culpability.

[120] The breach in this case is certainly serious. No new or uncertain law is engaged. Detaining and arresting individuals is one of the core functions that police officers regularly engage in. It is also one of the most impactful for individuals. And PC Turkot is not an inexperienced police officer. He has been working for the Toronto Police Service’s Traffic Services for 13 years.

[121] To detain and arrest an individual, and proceed to a warrantless search and seizure, in the clear absence of the necessary grounds to do so – or, said differently, without sufficient reason – is a marked deviation from the rule of law. If police officers were permitted to arrest people willy-nilly, on a hunch or because they took offence to their conduct, the administration of justice would fall into disrepute.

[122] This is not an instance where the indicia were close to the line. I found that the arrest was not a bona fide one, and indeed that the video evidence undermined most of the grounds put forward by the officer to justify his actions.

[123] Having operated on a hunch, the officer ultimately did not follow through on the steps he initially intended to take to substantiate this hunch – the screening test and having Ms. Vieira walk the line.

[124] I cannot find that this case falls on the good faith side of the spectrum. While the officer at times did exhibit some better judgment and good faith, that was not so in respect of making the breath demands and proceeding to arrest Ms. Vieira. The officer rushed these steps, rather than taking the time to properly investigate.

(2) Impact on the protected interests

[125] The Supreme Court in McColman explained at para. 66 that:

The second line of inquiry is aimed at the concern that admitting evidence obtained in violation of the Charter may send a message to the public that Charter rights are of little actual avail to the citizen. Courts must evaluate the extent to which the breach “actually undermined the interests protected by the right infringed”: Grant, at para. 76. Like the first line of inquiry, the second line envisions a sliding scale of conduct, with “fleeting and technical” breaches at one end of the scale and “profoundly intrusive” breaches at the other: para. 76.

[126] The impact of the violation in this case was significant.

[127] While the Supreme Court in Grant, at paras. 106-111, cited breath samples as a central or paradigmatic example of a minimally intrusive search involving a “less egregious and invasive intrusion into privacy, bodily integrity and dignity”, it has also more recently made clear that the overall impact of the breach or breaches must be considered.

[128] In R. v. Zacharias, 2023 SCC 30, at para. 57, the Court rejected the analysis in R. v. Jennings, 2018 ONCA 260, which had held that it was incorrect for the s. 24(2) analysis in s. 8 breath sample breach cases, to consider not just the impact of the breath sample procedure, but the entirety of the procedure faced by the accused after arrest. The Supreme Court instead held that “where a court finds that an arrest is made in breach of the Charter, it will be necessary to consider such a breach in the s. 24(2) analysis, including the impacts on the accused’s Charter-protected interests”: Zacharias, at para. 57.

[129] Here, the clear impact of both violations is that Ms. Vieira was not only momentarily detained, but she was also arrested, handcuffed, transported to the police station, and released only several hours later. Her time in custody was prolonged, in part because of the wait for a female officer to conduct a search. In other words, this occasioned a significant deprivation of liberty for Ms. Vieira.

[130] Further, this time in custody was not easy for Ms. Vieira, who was 56 years old at the time. She complained about her handcuffs being too tight during part of her detention, and requested water on a couple of occasions, apparently without that being attended to.

[131] I therefore find that the violations had a significant impact on the accused.

(3) Impact on the administration of justice

[132] On the last prong of the Grant test, the Court in McColman, at paras. 69-70, stated:

The third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry requires courts to consider both the negative impact of admission of the evidence on the repute of the administration of justice and the impact of failing to admit the evidence: Grant, at para. 79. In each case, “it is the long-term repute of the administration of justice that must be assessed”: Harrison, at para. 36.

Under this third line of inquiry, courts should consider factors such as the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the alleged offence, although this Court has recognized that the final factor can cut both ways: Grant, at paras. 81 and 83-84. While the public has a heightened interest in a determination on the merits where the offence is serious, it also has a vital interest in maintaining a justice system that is above reproach: para. 84.

[133] Impaired driving is a serious offence, and society has a vital interest in combatting drinking and driving: McColman, at para. 72. The evidence gathered in this case was very reliable and it is crucial to the Crown’s case.

[134] Unlike McColman, however, the readings here are not significantly above the legal limit, and there were not ample signs of impairment: see McColman, at para. 71.

[135] Admission of the evidence in this case would better serve the truth-seeking function of the criminal trial process, but in my view, could damage the long-term repute of the justice system.

[136] The third line of inquiry therefore pulls moderately in favour of inclusion of the evidence.

Final balancing

[137] In R. v. McGuffie, 2016 ONCA 365 at para. 63, Justice Doherty wrote that “[i]f the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility”. See also R. v. Le, 2019 SCC 34, at para. 142.

[138] In my view, that is the case here such that the evidence must be excluded.

[139] The Supreme Court recently acknowledged in Tim, at para. 85, that “[e]ven where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct’ (Paterson, at para. 44; see also Harrison, at paras. 24-25).”

[140] The violations in this case were clear and were of well-established rules. They had a significant impact on the accused’s liberty interest.

[141] I therefore exclude the breath sample evidence. As a result, Ms. Vieira is acquitted of both offences.

Released: January 30, 2024 Signed: Justice Mainville