ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 18/10
DATE: 20120706

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

DORYSE GERMAIN
Applicant

Serge Hamel, for the Respondent.
Dennis W. Fenton, for the Applicant.

HEARD: June 25, 2012

gauthier, j.

Introduction:

[ 1 ] The accused Doryse Germain (“Germain”) seeks an Order pursuant to s. 24 of the Charter of Rights and Freedoms excluding from evidence any statement or utterance made by her at the roadside on June 14, 2008, as well as an Order excluding from evidence any observations made by any officers relating to physical evidence derived from her subsequent to her detention, and finally, an Order excluding from evidence the results obtained from the taking of samples of Germain’s breath, both at the roadside and at the detachment.

[ 2 ] This motion was originally heard by me on February 9, 2011, with counsel’s submissions being received on April 18, 2011. On May 2, 2011, I denied the motion, concluding that there had been no breach of ss. 7 , 9 , or 10(b) of the Charter . I concluded that there was no arbitrary detention, and that, given the statutory duty on Germain to provide information to the officer about the accident, pursuant to s. 199 of the Highway Traffic Act , R.S.O. 1990, c. H.8 (“ HTA ”), the questions posed by the officer were proper. The answers given by Germain could be used by the officer in formulating a reasonable suspicion that Germain had alcohol in her body. I further ruled that the observation by the officer of the odour of alcohol emanating from Germain also could be used for the purpose of establishing grounds for making the demand for breath sample.

[ 3 ] On June 6, 2011, the Court of Appeal released its decision in R. v. Soules , 2011 ONCA 429. In that decision, the Court of Appeal followed the decisions in R. v. White , 1999 689 (SCC) , [1999] 2 S.C.R. 417, and R. v. Powers , 2006 BCCA 454 , 213 C.C.C. (3d) 351, in holding that statutorily compelled statements are inadmissible in the trial of an accused person, even for the limited purpose of establishing grounds to make a breath demand.

[ 4 ] The Soules case caused me to question the correctness of my earlier ruling, especially in regard to the oral statements of Germain about having been at the Robert farm party and having consumed alcohol, in response to the officer’s questions. I had concluded, on the evidence, that the officer’s questions to Germain about where she had been coming from when the collision occurred, and whether she had consumed any alcohol, were for the purpose of completing the motor vehicle accident report. In addition, I found that, like the accused in Soules , Germain had a duty to remain at the scene of the accident and provide information to the police. She was aware of that duty.

[ 5 ] In Soules , the accused identified himself as the driver of his vehicle at the time of the collision and told the officer that he had been drinking scotch until 3:30 a.m. the night before, in response to questions by the officer. He was not in the vehicle when he provided that information to the officer.

[ 6 ] At para. 43 of Soules , the Court said this: “The statutorily compelled admission from Mr. Soules in our case is not admissible for the purpose of establishing grounds for making either the ASD or the breath demand.”

[ 7 ] I discussed with counsel the potential impact of the Soules decision on my ruling. It was agreed that we would reconvene and that further evidence and submissions would be received. Mr. Fenton, counsel for Germain, was of the view that not only should Germain’s statements be inadmissible, but so should the evidence of the odour of alcohol on Germain’s breath. Mr. Hamel, Assistant Crown Attorney, was of the view that both pieces of evidence, that is the statements and the odour of alcohol, were admissible despite Soules .

Germain’s Position:

[ 8 ] The officer was questioning Germain pursuant to s. 199 of the HTA . That section does not authorize the detention of a person. Therefore, Germain was arbitrarily detained when she was placed in the rear of the police cruiser. She was arbitrarily detained for a purpose not disclosed to her by police. She was not provided with her rights to counsel. Not only should her statement be excluded, but so should the evidence of the odour of alcohol.

[ 9 ] The officer had a dual purpose in going to Germain’s vehicle, in speaking with her, in asking her to exit her vehicle and in having her accompany him to his cruiser. In addition to executing his duties pursuant to s. 199 of the HTA , he was investigating the possibility of the commission of a drinking and driving offence. He did not disclose this to Germain. The officer was actively seeking to obtain self-incriminating evidence from Germain. Even if the detention is found to be lawful, the evidence of the odour of alcohol should be excluded as it was obtained by the accused having been conscripted against herself while making the mandatory traffic report. Therefore, her right to remain silent under s. 7 of the Charter was breached.

[ 10 ] In addition, her right to counsel under s. 10(b) of the Charter was breached. But for the discharge of the s. 199 HTA duty, the officer would have been obligated to provide Germain with her right to counsel at the outset, that is, even before she exited the vehicle.

Crown’s Position:

[ 11 ] The Crown suggests that the questions posed by the officer and the answers received were “ordinary police investigation” as opposed to making a report pursuant to the HTA .

[ 12 ] The Crown distinguishes Soules and Powers from the case at bar. In those cases, the only way the prosecution could prove that the accused was the driver of the motor vehicle was through the accused’s own admission. The exclusion of the breath samples rested on the following: “in the absence of those statements there was no reasonable suspicion for the approved screening device [ASD] demand”: see R. v. Soules , at para. 9 . In the present case, the accused was seated in the driver’s seat of the vehicle which was running. There was no other vehicle in the vicinity.

[ 13 ] The odour of alcohol was an observation of the officer and is not evidence from compelled participation in any sobriety tests nor is it self-incriminating or elicited evidence. To equate the odour of alcohol with compelled statements made by an accused pursuant to the statutory duty under the HTA is an unreasonable interpretation of Soules , Power , and White .

[ 14 ] The Crown further submits that Germain’s detention was lawful pursuant to s. 199 of the HTA . It was not an arbitrary detention and thus the observation of the odour of alcohol by the officer is not conscriptive evidence and does arise as a result of any Charter violation.

[ 15 ] The odour of alcohol on a driver’s breath is sufficient to support a reasonable suspicion that the driver has alcohol in his or her body: see R. v. Lindsay , 1999 4301 (ON CA) , [1999] O.J. No. 870 (C.A.), and R. v. Carson , 2009 ONCA 157 , [2009] O.J. No. 660.

Analysis:

[ 16 ] Constable Lariviere testified that, prior to the accident, he and his partner were focussed on the Robert farm party, on the possibility of underage drinking and of impaired/over 80 drivers, and the highway on which the collision occurred; they had conducted several R.I.D.E. stops on that highway between midnight and 3:00 a.m.

[ 17 ] The officer testified as to the dual purpose of his dealings with Germain, i.e. s. 199 of the HTA and to explore whether alcohol had been involved in the accident. He testified that he was interested in determining if there was presence of alcohol in Germain’s body, but that he was also concerned about the collision and his duty under the HTA ; that is until he detected alcohol on her breath once in the cruiser, at which point in time his only focus became the possible involvement of alcohol. He agreed that he would be better able to gather evidence of alcohol involvement with Germain in the cruiser.

The Statements:

[ 18 ] The officer’s earlier evidence, with regard to the questions he put to Germain, is to the effect that they were in connection with his duty pursuant to s. 199 of the HTA . That evidence, together with Germain’s evidence regarding her obligation to remain at the scene of the accident and provide information to police, leads me to conclude that Germain’s statements to the officer should be excluded. The information about where she had come from and that she had had “a few” drinks are statutorily compelled admissions. According to Soules , that evidence is not admissible for the purpose of establishing the ground to make the ASD demand.

[ 19 ] I do not accept the Crown’s submission that the information was obtained as part of “ordinary police investigation”, and therefore beyond the ambit of the decision in Soules ; that would be contrary to the evidence of the officer.

The Odour of Alcohol:

[ 20 ] Section 254(2) of the Criminal Code , R.S.C. 1985, c. C-46, has two components in connection with the “reasonable suspicion” that permits the officer to make an ASD demand:

1. the suspicion that a person has alcohol in his/her body, and

2. the suspicion that the person has operated a motor vehicle within the preceding three hours.

[ 21 ] The second component is not in play in this motion. The evidence indicates that the officer observed Germain in the driver’s seat of the only non-emergency or non-police vehicle at the scene. It is admitted that Germain was the driver that struck and killed Alexandre Duguay and struck and injured Karina Lavictoire.

[ 22 ] I am only concerned with the first component, the suspicion that the person has alcohol in her body. The manner in which the officer obtained the information which provided him with the reasonable suspicion must be examined.

[ 23 ] It continues to be agreed by both the Crown and Defence that Germain was detained when she was seated in the rear of the cruiser, which is where the officer made his observation of the odour of alcohol.

[ 24 ] Germain is correct that the HTA does not specifically authorize a detention of a driver involved in a collision. Having said that, the absence of that statutory authorization does not render the detention either unlawful or arbitrary. The following facts or circumstances render it reasonable and logical for the officer to have requested that Germain attend at the cruiser and be placed in the rear of the cruiser:

a) It was very early in the morning, that is before 5:00 a.m.;

b) There were two injured young people at the scene (it is not clear whether Alexandre Duguay was alive or had died from his injuries);

c) All of the events were taking place on the highway;

d) Germain’s vehicle was straddling the centre line of the highway;

e) The Germain vehicle’s windshield was cracked on the passenger side, and there was debris in the vehicle;

f) It had been raining outside for some considerable period of time; and

g) The collision occurred approximately one kilometre from the Robert farm, where the party had been held.

[ 25 ] All of these circumstances are in addition to the fact that the officer had to discharge his duty under the HTA .

[ 26 ] The evidence does not suggest that there was any easily accessible place in which Germain and the officer could both discharge their duty under the HTA . As I indicated in the earlier ruling, it made sense for the officer to have Germain go with him to the cruiser for the taking of the information. Although we know that Germain posed no risk to the officer, the request that she sit in the rear of the cruiser instead of the front of the cruiser was neither capricious nor unjustified.

[ 27 ] That the officer had a dual purpose in requesting that Germain accompany him to the cruiser and sit in the rear of the cruiser, that is, to make the traffic report as well as to be better able to assess whether or not alcohol was involved, does not convert the lawful detention into an unlawful or arbitrary detention.

[ 28 ] Likewise, the lack of grounds to make the ASD demand until the officer detected the odour of alcohol on Germain’s breath did not render the detention unlawful or arbitrary.

[ 29 ] The intrusion on Germain’s liberty interest was minimal and reasonable in the circumstances. At the outside, Germain was detained for five minutes, including the period of time during which she was seated in the cruiser, where the odour of alcohol was detected.

Self-Incrimination:

[ 30 ] I turn now to the submission that Germain was compelled to provide incriminating evidence (the odour of alcohol on her breath) by being required to sit in the rear of the cruiser at the direction of the officer.

[ 31 ] It is important to note that when the officer detected the odour of alcohol, Germain was not being questioned, nor was she performing any sobriety test. The officer testified that he was reaching for his duty binder (which contained traffic accident reports) when he detected the odour of alcohol. This was within one minute after getting into the cruiser and he had not yet begun to fill out the accident report.

[ 32 ] At the time the officer detected the odour of alcohol, he was in the course of discharging his duty under s. 199 of the HTA .

[ 33 ] There is a distinction between evidence resulting from compelled participation in sobriety tests and observations a police officer might make while carrying out other authorized duties: see R. v. Milne (1996), 1996 508 (ON CA) , 28 O.R. (3d) 577 (C.A.). This distinction was described by Lamer J. in R. v. Ross , 1989 134 (SCC) , [1989] 1 S.C.R. 3, at p. 16, as being between physical evidence resulting from mere observation, and physical evidence “that could not have been obtained but for the participation of the accused in the construction of the evidence”.

[ 34 ] In Milne , Moldaver J.A. distinguished between observations by an officer during a compelled sobriety test and general observations. He held that observations stemming from compelled sobriety tests could not be used at trial to demonstrate impairment. However, general observations made by police while carrying out authorized duties could. At para. 40 of Milne , he said this:

Thus, by way of example, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, blood-shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs.

[ 35 ] The odour of alcohol on Germain’s breath was merely an observation by the officer. The evidence of the odour of alcohol does not result from any compulsion, coercion, or any compelled direct participation by Germain in any activity designed to provide evidence, nor did it stem from any compelled participation in the making of a traffic accident report under s. 199 of the HTA .

[ 36 ] The Ontario Court of Appeal recognised in R. v. Luchtmeijer , 2011 ONCA 585 , at para. 5 , [2011] O.J. No. 3999, that “[a] strong line of authority supports the proposition that a police officer’s observations of a lawfully detained suspect are not conscriptive evidence because they were not obtained through the suspect’s participation.”

[ 37 ] The issue in Soules was the use of compelled evidence in the context of mandatory traffic accident reports under s. 199 of the HTA . The Court held that the information provided by an accused while participating in the mandatory making of the report could not be used for any purposes in the criminal trial, including as grounds for the officer’s reasonable suspicion that the accused had alcohol in his body.

[ 38 ] In the case at hand, the officer’s observation did not stem from any compelled participation in the making of a traffic accident report under s. 199 of the HTA . At the moment when the officer detected the odour of alcohol, he was not attempting to elicit any information from Germain.

[ 39 ] I also note that, in both Soules and Powers, the only way the Crown could prove that the accused was the driver at the time of the ASD demand was through the accused’s own admission. That is not the case here.

[ 40 ] Therefore, I conclude that the officer’s observation did not involve a breach of Germain’s right to silence under s. 7 of the Charter .

[ 41 ] The odour of alcohol on a driver’s breath is sufficient to justify a roadside demand under s. 254(2) of the Criminal Code : see R. v. Carson , 2009 ONCA 157 , [2009] O.J. No. 660, and R. v. Lindsay (1999), 1999 4301 (ON CA) , 134 C.C.C. (3d) 159 (O.N.C.A.). The demand was lawful.

Right to Counsel:

[ 42 ] Counsel for Germain argued that her right to counsel under s. 10(b) of the Charter was breached when she was not afforded the opportunity to call a lawyer before she exited the vehicle. His argument is that but for the discharge of the s. 199 HTA duty, the officer would have been obligated to provide Germain with her right to counsel at the outset.

[ 43 ] In my reasons of May 2, 2011, I found that not complying with s. 10(b) in the context of a HTA stop or detention is a reasonable limit on a citizen’s rights in this circumstances. Soules does not change this proposition. I therefore conclude that Germain’s right to counsel was not breached.

Conclusion:

[ 44 ] I conclude that, as a result of the decision in Soules , the statements provided by Germain to the officer about having come from the Robert farm party, and having consumed some alcoholic beverages, are not admissible for the purpose of establishing the grounds for having made the ASD demand.

[ 45 ] I conclude however that the evidence by the officer that he detected the odour of alcohol on Germain’s breath is admissible for the purpose of establishing the grounds for having made the s. 254(2) demand.

[ 46 ] If I am mistaken in my conclusion that there were no breaches of Germain’s Charter rights, I would nonetheless admit that evidence based on the Grant analysis which I earlier conducted and which I will not repeat here.

Madam Justice L. L. Gauthier

Released: July 6, 2012

COURT FILE NO.: 18/10
DATE: 20120706

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent – and – DORYSE GERMAIN Applicant Ruling on charter motion Gauthier, J.

Released: July 6, 2012