COURT FILE NO.: CR18-92 DATE: 2019/05/06 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Andrew Lawson, for the Crown

• and -

SHERI SMITH Frank Falconi, for the Appellant Appellant

HEARD: April 25, 2019 Ellies R.S.J.

REASONS FOR DECISION

OVERVIEW

[1] Ms. Smith appeals her conviction for operating a motor vehicle while her blood alcohol content exceeded the limit set out in s. 253(1)(b) of the Criminal Code. Ms. Smith was pulled over in the early morning hours while driving her impaired sister home in her sister’s car. She submits that her rights under the Canadian Charter of Rights and Freedoms were breached by the officer who pulled her over and that the trial judge erred in failing to accept her evidence relating to those Charter breaches.

[2] For the following reasons, Ms. Smith’s appeal is dismissed.

FACTS

[3] Ms. Smith was pulled over while travelling southbound on Highway 11 at about 2:09 a.m. on December 20, 2017 by P. C. James Andrews of the Ontario Provincial Police (the “OPP”).

[4] Officer Andrews testified that he told Ms. Smith that he had seen the vehicle she was driving weave within its own lane and that he pulled the vehicle over to check on the sobriety of the driver. After identifying Ms. Smith from her driver’s licence, Officer Andrews told her that he could detect a strong odour of alcohol coming from the interior of the vehicle and asked her if she had been drinking. Ms. Smith said “no” and directed the officer’s attention to the passenger seated beside her, whom she identified as her sister. Officer Andrews testified that the passenger was obviously under the influence of alcohol.

[5] In order to determine if the alcohol he smelled was also coming from Ms. Smith, Officer Andrews asked Ms. Smith to step out of the car, so that he could speak to her in close proximity. When she did, he could smell alcohol on her breath. Officer Andrews then made a demand that she provide a sample of her breath into an approved screening device (an “ASD”). After one unsuccessful attempt, Ms. Smith provided a sample which registered a fail on the machine. Because she appeared to be so shocked at the result, Officer Andrews tested the ASD again and allowed her to provide another sample. That sample also registered a fail on the ASD.

[6] Officer Andrews testified that he then went to speak to Ms. Smith’s sister, to tell her that he was arresting Ms. Smith. Afterwards, he returned to the vehicle, placed Ms. Smith under arrest for the offence with which she was ultimately convicted, advised Ms. Smith of her right to counsel, cautioned her about giving statements, and read a breath sample demand to her from a card he carried with him.

[7] Officer Andrews waited briefly for another officer to arrive at the scene to look after Ms. Smith’s sister before leaving in his cruiser with Ms. Smith for the OPP station. He said that, once they arrived at the police station, he spoke to P.C. Eric Carlson, a qualified breath technician and then turned Ms. Smith over to him.

[8] During a voir dire held with respect to Ms. Smith’s Charter rights, she testified that the officer did not tell her why she was being pulled over and that she believed the stop was related to something her sister had done or failed to do, such as registering or insuring the car. She testified that it was not until she was handcuffed after her arrest that she realized that she had been the subject of the officer’s investigation.

[9] Ms. Smith said that, while being transported to the police station, she asked Officer Andrews if she could use her cell phone to contact a lawyer and that the officer allowed her to do so. She testified that she tried to reach her mother to get the name of a particular lawyer eight times during the trip, but her phone kept showing an error message. She said that she told Officer Andrews about her difficulties after the first couple of times and that he told her to keep trying.

[10] Ms. Smith testified that Officer Andrews stopped at the Comfort Inn, where he got out of the cruiser, apparently on another call, leaving her alone for about 10 or 15 minutes before completing the trip to the police station. She said that, just before they got to the police station, she tried to call her mother again and the officer told her that she could make another attempt when they got there.

[11] Ms. Smith testified that, once they arrived at the station, however, her cell phone was confiscated. She testified that another officer read to her from a “board”. From her evidence, it appears Ms. Smith was also able to read what was on the board. She said that, at the bottom of the board, it said “something about you having a right to duty counsel or a lawyer of your choice, something along those lines”. She testified that she told the police officer that she had a lawyer and that she wanted to contact the lawyer, but the officer responded:

[O]kay, she’s requested duty counsel, come on Sheri, move into – I’m going to get you to take your bra off and your jewelry and we’re going into duty – it was very loud and I felt dismissed and out of control at that point. I felt that I had no more control.

[12] Ms. Smith ended up speaking with duty counsel and then provided a sample of her breath for analysis. The lowest of two readings was 125 milligrams of alcohol in 100 milliliters of blood. Ms. Smith was then charged and ultimately released.

[13] At trial, Ms. Smith asserted that her rights under ss. 8, 9, 10(a) and 10(b) of the Charter had been breached. The trial judge found otherwise.

[14] With respect to Ms. Smith’s search and seizure rights under s. 8 of the Charter, she alleged that Officer Andrews did not have the requisite objective grounds necessary to demand that she provide an ASD sample. To the contrary, the trial judge found that Officer Andrews acted reasonably in asking Ms. Smith to step out of the car in order to determine if she also smelled of alcohol and that, once he determined that she did, he had objective grounds to make the ASD demand.

[15] With respect to Ms. Smith’s right to be free from arbitrary detention under s. 9, the trial judge held that the delay that resulted from the fact that Officer Andrews went to speak first to Ms. Smith’s sister before arresting her did not infringe Ms. Smith’s right not to be arbitrarily detained.

[16] Regarding the alleged breach of Ms. Smith’s right to be advised promptly of the reasons for her detention under s. 10(a), the trial judge rejected Ms. Smith’s evidence and accepted the evidence of Officer Andrews that he advised her of the reasons he had pulled the car over immediately after stopping her.

[17] The trial judge also accepted Officer Andrews’ evidence and that of the other officer who testified, Officer Carlson, regarding Ms. Smith’s right to counsel under s. 10(b) of the Charter. He found that Ms. Smith never made a request for a specific lawyer once she got to the police station.

[18] In the result, the trial judge found no breach of Ms. Smith’s Charter rights. Nonetheless, he went on to consider whether, in the event that he was wrong, the evidence should be excluded under s. 24(2) of the Charter. After considering the factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, he held that it should not.

[19] Accordingly, the judge found Ms. Smith guilty and entered a conviction.

ISSUES

[20] Counsel for Ms. Smith raised the following issues during the argument of the appeal:

(1) Did the trial judge err by failing to properly evaluate the conflicting evidence of Ms. Smith and the police? (2) Was Ms. Smith’s right under s. 10(a) of the Charter to be advised of the reason for her detention violated when Officer Andrews asked her to step out of the car without telling her why she had been detained? (3) Was Ms. Smith’s right under s. 10(b) to counsel violated when she was not permitted to contact counsel of her choice at the police station? (4) If any of Ms. Smith’s Charter rights were infringed, should the evidence that was obtained following the violation be excluded under s. 24(2)?

ANALYSIS

Did the trial judge err by failing to properly evaluate the conflicting evidence of Ms. Smith and the police?

[21] Ms. Smith argues that there were weaknesses in Officer Andrews’ evidence that should have caused the trial judge to reject that evidence where it conflicted with her evidence on the Charter issues. Many of them center on the failure of the officer to record certain events in his notebook. For example, Officer Andrews did not record the fact that he advised Ms. Smith of the reasons for pulling her over nor that he asked her if she had been drinking, although he testified that he had done so. The officer also failed to record and recollect that he had stopped at the Comfort Inn on a call while bringing Ms. Smith to the police station, although he did not deny that it might have happened. Officer Andrews also testified that he did not remember Ms. Smith asking to speak with any particular lawyer, nor did he remember her asking to use her cell phone in the cruiser, although he said that he might have allowed her to do so because Ms. Smith was cooperative and gave him no cause to be concerned about safety.

[22] Ms. Smith contends that the trial judge failed to deal with these shortcomings in the officer’s evidence.

[23] It is an error of law for a trial judge to fail to explain why he rejected an accused’s evidence: R. v. M. (Y.) (2004), 71 O.R. (3d) 388 (Ont. C.A.), at para. 26. However, that is not what happened here.

[24] The trial judge in this case gave reasons for accepting the officer’s evidence over that of Ms. Smith. In delivering those reasons, he said (transcript, p. 20, line 26):

I specifically accept the testimony of Constable Andrews in relation to what occurred at the roadside. In-chief and again in cross-examination he remained unshaken as to what he did. In doing so, I also reject the testimony of Ms. Smith. Her professed confusion as to what was occurring and why is not reasonable in my estimation. It beggers belief.

Coupled with that, she never sought any explanation for it or (sic) expressed her confusion to anyone. She did not provide in anyway her thought process throughout in the brief period that the – we’ll call it the secondary screening was going on.

All that in the face of Constable Andrews (sic) statement of having been aware of a strong smell emanating from the vehicle and his request that she exit the vehicle. As one would have followed the other which would have been, I believe, a strong inference that should have been drawn.

I accept Constable Andrews’s evidence. I am satisfied that the Crown has established on a balance of probabilities that Constable Andrews advised Ms. Smith of the reasons for the stop in clear and simple language and I find that there is no breach of the s. 10(a) Charter rights.

[25] An argument on appeal that the trial judge was wrong to reject the evidence of the accused usually takes one of two forms. It is either an attack on the adequacy of the judge’s reasons or, as Doherty J.A. phrased it in R. v. J.H., at para. 47:

… thinly veiled invitations to the Court of Appeal to substitute its own credibility assessments for those made at trial. Where the essence of the argument advanced on appeal comes down to an assertion that the trial judge was wrong in accepting the evidence of the complainant and rejecting the evidence of the accused, this submission should be treated for what it is, an assertion that the verdict is unreasonable. The success of that assertion turns, ultimately, not on the reasoning process of the trial judge, although that process is relevant, but on whether the verdict can withstand the limited review contemplated by s. 686(1)(a)(i) of the Criminal Code: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, 143 C.C.C. (3d) 1 at 20-24 (S.C.C.).

[26] As I have demonstrated, the trial judge’s reasons were adequate to allow this court to understand why he rejected the evidence of Ms. Smith and accepted the evidence of Officer Andrews. I can see nothing unreasonable in the conclusion arrived at by the trial judge in this respect. As he said, it defied belief that Ms. Smith would not know she was the subject of the investigation until she was handcuffed, after being asked to blow into the ASD and, by her own admission, being told beforehand that there was an odour of alcohol in the vehicle.

[27] The fact that the officer did not record certain events in his notes did not prevent the trial judge from accepting his evidence. There was nothing unreasonable about the officer’s explanation that he does not record things in his notebook that he does every time he makes a traffic stop, such as explain why he has pulled the car over. The trial judge was clearly impressed by the way in which the officer testified and this is also justifiable. The officer candidly conceded that Ms. Smith’s evidence about things that he did not record, such as using her cell phone in the car and stopping at the Comfort Inn, might well be true, in the same way that his evidence was truthful when he testified that he advised her of why she had been stopped and whether he had asked her if she had had anything to drink.

[28] For these reasons, I find that the trial judge committed no error in the manner in which he approached the conflicting evidence of Ms. Smith and Officer Andrews and there was nothing unreasonable in the conclusion he reached using that approach.

Was Ms. Smith’s right under s. 10(a) violated?

[29] At the outset of argument, counsel for Ms. Smith was asked to list the issues to be determined by the court. With respect to the Charter, he listed only two potential breaches, namely breaches of ss. 10(a) and 10(b). Counsel’s submission with respect to s. 10(a), however, sounded to me more like an argument that Ms. Smith’s right to be free from arbitrary detention under s. 9 of the Charter had been breached, rather than an argument that she had not been promptly advised of the reason for her detention. Counsel submitted that Officer Andrews needed more of a reason to detain Ms. Smith, not that he needed to give her more information about the reason. He argued that the officer had only a “hunch”, and not a reasonable suspicion, when he asked Ms. Smith to exit the vehicle. Relying on R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, he argued that this was not enough.

[30] I disagree. Mann has no application to valid roadside stops undertaken to check for driver sobriety: R. v. Adams, 2011 NLCA 3, at para. 16.

[31] It has been settled law for over 30 years that the random stopping of a motorist for the purpose of determining the motorist’s sobriety results in an arbitrary detention, but that such detention is a reasonable limit on the motorist’s Charter rights under s. 1 of the Charter: R. v. Hufsky, [1988] 1 S.C.R. 621. The officer pulling over a vehicle for such a purpose need not have even so much as a hunch before doing so, provided that the stop is not used as a ruse: R. v. Ladouceur, [1990] 1 S.C.R. 1257.

[32] There is no issue here that the officer pulled Ms. Smith over for a valid purpose. He testified several times that he pulled her over under the authority of s. 48(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, which reads:

48 (1) A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 254 of the Criminal Code (Canada).

[33] The officer’s evidence on this point was not challenged.

[34] The authority of the officer to determine whether there is evidence to justify making a demand under s. 254 of the Criminal Code includes the power to request that the driver step out of the vehicle in order to determine if she is the source of the smell of the alcohol: R. v. Troester, 2000 CarswellOnt 2096 (Ont. C.A.). Again, the officer need not have even a hunch that the driver has consumed alcohol in order to make the request. However, even if he needed to have a reasonable suspicion, as argued on behalf of Ms. Smith, the trial judge in this case found that he had it.

[35] The officer testified with respect to his request that she exit the vehicle (transcript, p. 32, line 25 to p. 33, line 17):

Q. Okay. So what police power, or law or authority are you – were you relying on when you asked her to get out of the car? A. No authority. Like I said, I was continuing the investigation in regard to the sobriety. I had questions in regards – due to the strong odour of alcohol in the vehicle. Q. Okay. So I just want to make sure that I understand. You don’t believe that you – well did you, did you have any legal authority to ask her to get out of the car or not in your view? A. I pulled her over under, like I said, 48(1) of the Highway Traffic Act, it was to check on her sobriety. Q. So does that section… A. I had the, I had the weaving noticeably. She didn’t appear to be, appear to be tired so I wanted to satisfy myself further to ensure that she had not been drinking even though she told me she had not been due to the strong odour of alcohol. Q. And the reason that you pulled her out was because you were suspicious of her consumption of alcohol, right? A. Given the driving nature and not being tired, correct.

[36] The trial judge held regarding the officer’s evidence (transcript, p. 7, line 15):

He was clear in cross-examination that he felt that he had grounds to demand the ASD upon the first contact because of the smell emanating from the vehicle but he wanted to eliminate the distinct possibility that the smell may have emanated solely from the person of Ms. Smith’s sister because of her explanation given what he first commented on the smell.

[37] The officer’s evidence and the trial judge’s finding effectively dispose of any argument under s. 9 of the Charter. Regarding the argument that Ms. Smith’s right under s. 10(a) was violated, the judge’s finding that she was advised of the reasons for which she was pulled over is also dispositive. As I have already stated, the trial judge committed no error in arriving at that reasonable conclusion.

Was Ms. Smith’s right under s. 10(b) violated?

[38] Unlike the right under s. 10(a) of the Charter, the rights under s. 10(b) can be, and are, suspended during a valid highway traffic stop. This was the ruling in R. v. Elias; R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3.

[39] However, once a detainee has been arrested for an offence, the right to counsel is no longer suspended. That right includes the right to contact counsel of choice. The police are not permitted to simply “default to duty counsel”: R. v. Vernon, 2015 ONSC 3943, leave to appeal refused, 2016 ONCA 211. However, once again, that is not what happened here.

[40] The trial judge accepted the evidence of both police officers that, once she arrived at the police station, Ms. Smith did not request an opportunity to speak with counsel other than duty counsel. As I understand the evidence of Officer Carlson, Ms. Smith was being video recorded at the time she was again being advised by him before providing breath samples of her right to counsel, including the right to counsel of her choosing. The officer testified that Ms. Smith indicated that she understood and that she had been given the opportunity to speak with counsel. Officer Carlson testified that, if Ms. Smith had expressed any concern about the fact that she had not spoken with a lawyer of her own choosing, he would have stopped the interview to provide her with that opportunity.

[41] The onus was on Ms. Smith to establish on a balance of probabilities that her right to counsel had been infringed. If Ms. Smith’s evidence on this point was supported at all by the videotape, one would have expected Officer Carlson to be contradicted by it during cross-examination. Yet, he was not and the video was never played.

[42] The trial judge’s decision to accept the evidence of the police officers over that of Ms. Smith was not unreasonable in these circumstances. Once again, his acceptance of that evidence is a complete answer to Ms. Smith’s argument that her right to counsel was infringed.

Should the evidence be excluded under s. 24(2)?

[43] Given my conclusion that the trial judge committed no error in arriving at his conclusions with respect to the alleged breaches of Ms. Smith’s Charter rights, I need not deal with this issue: see R. v. Shipley, 2015 ONCA 914.

CONCLUSION

[44] The trial judge committed no legal error in his assessment of the conflicting evidence regarding Ms. Smith’s Charter rights. Nor was his conclusion, based on that evidence, unreasonable.

[45] The appeal is therefore dismissed.

Ellies R.S.J. Released: May 6, 2019