ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 15-4904
DATE: 2015-12-18
B E T W E E N:
HER MAJESTY THE QUEEN
J. Vincelli, for the Crown
Applicant
- and -
KIM ROBERTS
A. Fiszauf, for Kim Roberts
Respondent
HEARD:
December 14, 15, and 16, 2015
REASONS FOR JUDGMENT
Justice Skarica
OVERVIEW
[1] Kim Roberts has a PHD in psychology but that did not prevent her from performing foolish actions on November 12 and 13, 2013.
[2] On November 12, 2013, Kim Roberts visited her ill mother-in-law in a Hamilton hospital. The visit distressed her and at 9 p.m., she unwisely decided to go to a bar in Burlington before her trip to her Stratford home.
[3] Once at the bar, she initially drank a 20 ounce pint of beer chased by a whisky shot. An hour later at about 10:15 p.m. (according to her), she drank two 20 ounce pints of beer accompanied by two whiskey shots between 10:15 p.m. and 10:30 p.m. This was a variation of (the now out of fashion) one drink for the road – this was four drinks for the road.
[4] At 10:30 p.m., Kim Roberts got into her car and drove along Highway 403 to Highway 6 north with the intention to travel to Highway 401. These three highways are heavily travelled roads in Ontario at most times of the day and night.
[5] Kim Roberts passed by a gas station while travelling northbound on Highway 6 and Concession 6 and did a U-turn and travelled back south with the intent to turn left at Highway 6 and Concession 6. Kim Roberts, while turning left, was struck head on by a vehicle, which according to her, came out of nowhere.
[6] Kim Roberts was arrested by the police for impaired driving. Subsequent breath tests taken at 1:11 a.m. and 1:40 a.m. produced test results of 210 and 200 milligrams of alcohol in 100 millilitres of blood, respectively.
[7] The defence, based on a variety of Charter arguments, seeks to exclude Kim Roberts’ statements to the police and the breath test results.
ISSUES
[8] The defence raises the following Charter issues:
Did the police have reasonable and probable grounds to arrest Kim Roberts and make a subsequent demand for breath samples? This is the section 8 argument.
Were Kim Roberts’ statements at the accident scene and at the police station compelled by the Ontario Highway Traffic Act? Does the White/Soules doctrine make these statements inadmissible for all purposes? This is the self-incrimination and section 13 arguments and total immunity doctrine.
Does the Orbanski limited use immunity doctrine render the physical observations of the accused at the scene inadmissible on the issue of guilt?
Kim Roberts was advised that she would be charged with impaired driving and over .08 and was initially charged with these offences. She was not advised that she could be charged with impaired causing bodily harm and subsequently was charged with two counts of impaired causing bodily harm. Was the accused properly advised of the reasons for her detention? This is the section 10 (a) argument.
The accused had a cell phone that had internet access at the scene. The defence suggests that she should have been given access to her phone at the scene to make inquiries regarding private counsel located in Stratford. Instead, the defence states that she was steered to Duty Counsel. The defence alleges her right to counsel was violated by (1) the lack of opportunity to consult counsel at the scene, (2) the steerage to Duty Counsel and (3) not being advised of her jeopardy of being charged with impaired causing bodily harm.
ISSUE 1 – SECTION 8 ARGUMENT – WERE THERE REASONABLE AND PROBABLE GROUNDS (RPG) TO ARREST KIM ROBERTS AND DEMAND AND OBTAIN A BREATH SAMPLE?
LAW
A. RPG – THE STANDARD
[9] Reasonable and probable grounds (RPG) is a higher standard than mere reasonable suspicion. Both RPG and reasonable suspicion require that there be a constellation of objectively discernible facts. The requirement that the facts must meet an objectively discernible standard serves to avoid indiscriminate and discriminatory exercise of police power. What distinguishes “reasonable suspicion” from the higher standard of RPG is “merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases must exist to support the search” – see R. v. Kang-Brown, 2008 SCC 18, [2008] S.C.J. No. 18 per Binnie J. at paras 75-76.
[10] The police power to arrest involves a two part test. The arresting officer must (1) have subjective grounds to arrest and (2) those grounds must be scrutinized from an objective viewpoint. Justice Doherty in R. v. Golub, 1997 6316 (ON CA), [1997] O.J. No. 3097 (C.A.) describes the two part test as follows at paragraphs 20-21:
20 The police power to arrest under s. 495 of the Criminal Code was considered in R. v. Storrey (1990), 1990 125 (SCC), 53 C.C.C. (3d) 316 (S.C.C.). Cory J., for the court, said at p. 324:
• In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, 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. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest.
21 In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable: R. v. Storrey, supra, at pp. 423-24; Chartier v. The Attorney General of Quebec (1979), 1979 17 (SCC), 48 C.C.C. (2d) 34 at 56 (S.C.C.); R. v. Hall (1995), 1995 647 (ON CA), 39 C.R. (4th) 66 at 73-75 (Ont. C.A.); R. v. Proulx (1993), 1993 3677 (QC CA), 81 C.C.C. (3d) 48 at 51 (Que. C.A.).
[11] Reasonable grounds has been described as credibly based probability and is not proof beyond a reasonable doubt. Justice Hill in the oft cited case of R. v. Censoni, [2001] O.J. No. 5189 (Sup. Ct.), provides a detailed review of the law regarding RPG as of 2001 at paragraphs 30-51:
30 Reasonable grounds has been described as credibly based probability - reasonable probability: The Queen v. Baron et al (1993), 1993 154 (SCC), 78 C.C.C. (3d) 510 (S.C.C.) at 531-2 per Sopinka J.
31 It has been repeated elsewhere that reasonable and probable grounds does not amount to proof beyond a reasonable doubt: Proulx v. Quebec (A.G.), 2001 SCC 66, [2001] S.C.J. No. 65 at para. 151, 206 per L'Heureux-Dubé J. (in dissent in the result); Regina v. Debot (1986), 1986 113 (ON CA), 30 C.C.C. (3d) 207 (Ont.C.A.) at 219 per Martin J.A. (affirmed (1990), 1989 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.) at 213 per Wilson J.) Nor is it the equivalent of a prima facie case: Regina v. Debot, supra at 219 (Ont.C.A.), at 213 (S.C.C.); Storrey v. The Queen (1990), 1990 125 (SCC), 53 C.C.C. (3d) 316 (S.C.C.) at 324 per Cory J.; Regina v. Hall (1995), 1995 647 (ON CA), 39 C.R. (4th) 66 (Ont. C.A.) at 77 per Osborne J.A. (as he then was); Regina v. Proulx (1993), 1993 3677 (QC CA), 81 C.C.C. (3d) 48 (Que.C.A.) at 51 per Nichols J.A. In other words, the police need not establish more than reasonable and probable grounds.
[... continued verbatim through the remainder of the judgment ...]
[132] For the reasons outlined, I find that there were no breaches of Charter rights as alleged by the applicant and the application for the exclusion of evidence pursuant to the Charter is denied.
Justice T. Skarica
Released: December 18, 2015
COURT FILE NO.: 15-4904
DATE: 2015-12-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and –
KIM ROBERTS
Respondent
REASONS FOR JUDGMENT
Justice Skarica
Released: December 18, 2015