OSHAWA COURT FILE NO.: 18-14701-AP

DATE: 20210908

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ANDREW FROST

Appellant

David Parke, for the Crown

Justin Marchand, for the Appellant

HEARD: June 11, 2021

REASONS FOR DECISION ON APPEAL

On appeal from the decision of The Honourable Madam Justice B. Green

Dated February 21, 2018

CASULLO J.

Introduction

[1] Mr. Frost appeals from his conviction following a trial for driving with more than the legal concentration of alcohol in his blood, contrary to s. 253(1)(b) of the Criminal Code. He submits that the trial judge erred in law by dismissing his Charter application to exclude breath test results.

[2] The events giving rise to the charges took place in the early morning hours of December 15, 2016, when the police were called to what appeared to be a single-vehicle collision on the 401 in Pickering, Ontario. Mr. Frost, the driver of the disabled vehicle, failed an approved screening device (“ASD”) test at the scene. Later, at the police station, two breath test samples revealed blood alcohol levels of 170 mg of alcohol in 100 ml of blood.

[3] In the course of her 24-page reasons for judgment, delivered orally on February 21, 2018, Green J. dismissed the defence’s detailed application that the attending officer had violated Mr. Frost’s rights under ss. 7, 8, 9, 10(b) and 11(c) of the Charter, and in particular that the breath samples and the officer’s observations of Mr. Frost at the scene ought to be excluded pursuant to s. 24(2) of the Charter.

Factual Background and Decision of the Trial Judge

[4] The facts giving rise to this appeal are not in dispute.

[5] At approximately 3:15 a.m. on December 15, 2016, Mr. Frost lost control of his vehicle in the east bound express lanes on the 401. It came to a stop against the guardrail, with a small portion of its rear end in the live lane of traffic, creating some measure of an emergency situation. Witnesses contacted 911 and the OPP, who were dispatched to the scene. Mr. Sarangi, a tow-truck driver, responded when he heard the call-out on the police dispatch. He was the first to appear at the accident locale.

[6] Mr. Sarangi found Mr. Frost standing in front of the SUV. There was no one else on the highway, and Mr. Sarangi deduced that Mr. Frost was the driver in what appeared to be a single vehicle collision. The SUV was severely damaged – the door, fender, bumper, and suspension had been ripped from it.

[7] Mr. Sarangi asked Mr. Frost if he was okay, and what had happened. Mr. Frost responded that he must have fallen asleep. Because it was cold outside, Mr. Sarangi invited Mr. Frost to sit in the cab of the tow truck until police arrived. While they waited in the cab, they did not speak.

[8] Officer Edwards arrived on the scene about five minutes after Mr. Sarangi. He was on patrol in the area that evening, he had the impression when he heard the call that this was a fresh collision. He explained that he had passed by that exact area as recently as 2:07 a.m. that morning and he did not see any collision. Thus, the trial judge found that PC Edwards turned his mind to the fact that the collision had occurred less than three hours before the time that he arrived on scene, and made the subsequent ASD demand.

[9] Neither Mr. Sarangi nor PC Edwards could confirm whether Mr. Sarangi was inside his vehicle when PC Edwards arrived, and he stepped out to speak with him, or whether Mr. Sarangi was standing on the side of the road. Each did recall that when PC Edwards asked who the driver was, Mr. Sarangi directed PC Edwards to Mr. Frost, who was sitting in the tow truck.

[10] PC Edwards opened the passenger door of the tow truck and asked if Mr. Frost was the driver. Mr. Frost confirmed he was. During this exchange PC Edwards could smell alcohol emanating from Mr. Frost. At this stage, the course of the investigation changed from an accident investigation to an impaired driving investigation.

[11] Wanting to be satisfied that the smell of alcohol was coming from Mr. Frost, and not the inside of the tow truck, PC Edwards asked Mr. Frost to accompany him to the cruiser. PC Edwards could not recall what he and Mr. Frost discussed after Mr. Frost confirmed he was the driver, but he did not recall asking anything further in respect of the accident itself.

[12] The trial judge made a finding of fact that there was additional conversation between the two. PC Edwards testified that he asked Mr. Frost to come to the cruiser, and said he believed he told Mr. Frost that he was investigating the smell of alcohol, and why. Further, around this same time PC Edwards retrieved Mr. Frost’s wallet and cell phone from the SUV, and it was reasonable to assume a discussion between the two took place before this happened.

[13] Once isolated in the cruiser, PC Edwards was satisfied that the smell of alcohol was coming from Mr. Frost. He also noticed that Mr. Frost’s eyes were red. The trial judge found that at 3:57 a.m. PC Edwards formed the suspicion that Mr. Frost had been consuming alcohol, and that he made the ASD demand immediately thereafter. The suspicion did not crystalize until after Mr. Frost was seated in the cruiser.

[14] Mr. Frost was arrested when his breath sample registered a fail on the ASD. PC Edwards read Mr. Frost his rights and took him to the closest police station with an available Intoxilyzer technician. Once at the station, PC Edwards turned custody of Mr. Frost to the technician, PC Ritchie.

[15] Mr. Frost provided two samples, more than 15 minutes apart, both of which registered readings of 170 mg of alcohol in 100 mg of blood. PC Ritchie testified he observed the odour of alcohol coming from Mr. Frost. He also noted that Mr. Frost’s eyes were red, and his symptoms of impairment increased during their interaction, including slurred speech and an unsteady gait.

[16] Mr. Frost gave evidence at the voir dire. The trial judge found him to be a forthright and impressive witness. He admitted that he had been drinking the night in question, but he could not recall how much he drank, or when he drank his last drink. He recalled that he was sitting in the tow truck when PC Edwards attended and asked if he was the driver. Mr. Frost replied that he was. He could not recall whether PC Edwards asked any other questions, and he did not say he told PC Edwards anything else about the accident beyond the fact that he was the driver.

[17] Mr. Frost had been involved in previous collisions. He knew he was required to remain at the scene given the extensive damage to his SUV. He also knew of his obligations pursuant to the Highway Traffic Act, R.S.O. 1990, c. H. 8 (HTA) to provide information to the responding officer. At this point in her reasons the trial judge noted the Crown’s concession that Mr. Frost felt compelled to answer to PC Edwards, so persuasive was his belief that he had a legal obligation to cooperate with the accident investigation.

[18] At trial, defence argued that Mr. Frost’s statements to PC Edwards were compelled and therefore should be excluded. And further, that the smell of alcohol PC Edwards detected while speaking with Mr. Frost at the tow truck would not have occurred but for the compelled statements, and thus the smell of alcohol should be excluded.

[19] The trial judge specifically addressed this submission at paragraph 40 of her reasons:

I note that Mr. Frost acknowledged that he also felt that he was morally obliged to answer the Officer’s inquiries. In addition, they obviously had some other conversations between that first query and the demand for the roadside sample. Neither one of them could recall the exact nature of the conversation, however Officer Edwards believed that he explained to Frost what he was doing at the roadside. They would have discussed moving to the cruiser, why he was being taken to the cruiser and retrieving his personal items from his vehicle. The investigation had clearly shifted from an accident investigation to an impaired driving investigation. Mr. Frost did not testify that he felt compelled to participate in any of those additional exchanges or any other conversation with PC Edwards while he was in the cruiser. Regardless of any initially expressed feelings of compulsion, there is no evidence that any of the other exchanges had anything to do with reporting an accident.

[20] The trial judge found that Mr. Frost had not met his burden of establishing that the continued exchanges with PC Edwards were part and parcel of his initial feeling of compulsion. Thus, she did not accept that PC Edwards would not have made his observation of alcohol but for the initial conversation in the tow truck. In her view, the smell of alcohol “was ultimately discoverable before the demand was made independently of Mr. Frost’s brief statement identifying himself as the driver.”

Grounds of Appeal

[21] Mr. Frost advances a single issue: should the odour of alcohol observed by PC Edwards, while receiving a compelled HTA report, and again shortly thereafter, be excluded when that officer is called upon to justify a subsequent demand for an ASD test?

[22] Mr. Frost also advanced an argument not presented to the trial judge, namely, that the ASD demand was unlawful because Mr. Frost’s vehicle was not operable after the collision. In other words, because Mr. Frost could not drive away, there was no HTA safety concern to warrant the demand. Thus, the only duty PC Edwards was authorized to carry out at the scene was to investigate the collision, given that Mr. Frost was no longer a legitimate user of the highway.

[23] The Crown submits that it was impermissible for Mr. Frost to make this argument, first because it was not raised at trial, and second because Mr. Frost failed to seek leave to introduce it before me during argument.

[24] In the alternative, if I were to entertain this ground of appeal, Mr. Frost’s argument must fail because the ASD demand did not stem from the HTA. Rather, PC Edwards made the ASD demand because he formed a reasonable suspicion that Mr. Frost had operated the vehicle while impaired within the proceeding 3 hours, pursuant to then s. 254(3) of the Criminal Code.

[25] As a general rule, appellate courts should not entertain arguments not advanced at trial. See for example Klaiman v. Graham, 2009 ONCA 77, [2009] O.J. No. 324, at para. 18.

[26] Mr. Frost failed to explain why he did not raise this argument at trial, beyond counsel suggesting “it was blind to me in plain sight.” The interests of justice do not warrant entertaining this argument at the appellate level, and I exercise my discretion to deny leave.

[27] Had I granted leave, this ground of appeal would have failed in any event. Mr. Frost has failed to persuade me that an ASD demand is inappropriate when a collision renders the subject driver’s vehicle inoperable.

Positions of the Parties

[28] Mr. Frost submits that his statements to the police at the roadside were compelled pursuant to ss. 199 and 200 of the HTA and the evidence gathered from Mr. Frost at the roadside was tainted. Consequently, it would be contrary to his right against self-incrimination to admit this evidence.

[29] The Crown submits that there is a distinction between conscripted evidence, and physical observations incidental to conscripted evidence. PC Edwards’ observations of Mr. Frost were made when he was legally detained, and not through Mr. Frost’s participation.

Standard of Review

[30] The limited powers of a summary conviction appeal are set out in s. 822(1) of the Criminal Code, which incorporates by reference the powers of the Court of Appeal contained in s. 686(1) of the Criminal Code. Section 686(1) provides an appellate judge with wide authority to allow an appeal where she determines either a) the verdict is unreasonable and unsupported by the evidence; b) the decision is wrong on a question of law; or c) there has been a miscarriage of justice.

[31] Significant deference is given to a trial judge’s findings of fact and credibility assessments. Given the trial judge’s unique position to see and hear witnesses, these findings and assessments should not be disturbed unless there has been a palpable and overriding error: see R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3.

[32] An appellate judge is not free to re-try the case and substitute her view of the evidence. Instead, the appellate judge should re-examine and to a certain extent at least, re-weigh and consider the effect of the evidence: see R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122.

Analysis

[33] This appeal turns wholly on the exchange between Mr. Frost and PC Edwards at the scene of the collision.

[34] It will be remembered that the evidence of PC Edwards was that he smelled alcohol on Mr. Frost’s breath while Mr. Frost was still sitting in the tow truck, and answered “yes” when PC Edwards asked if he was the driver.

[35] The trial judge made findings of fact that the smell of alcohol was also detected after the initial conversation in the tow truck, and before the administration of the roadside screening device. PC Edwards detected the smell during exchanges with Mr. Frost unrelated to Mr. Frost’s obligation to provide a report.

[36] In support of her conclusion the trial judge relied on the ration from the Court of Appeal in R. v. Puvtoski, 2016 ONCA 828, [2016] O.J. No. 6379, at paras. 2-4 in which that court dismissed the same argument advanced by Mr. Frost, in a case with similar facts:

The main issue on appeal relates to police observations (alcohol smell) of the appellant after a motor vehicle accident and the appellant’s statements to the police at the accident scene. The appellant contends that his statements were statutorily compelled in violation of s. 7 of the Charter. Section 1999 of the Highway Traffic Act, R.SO. 1990, c. H. 8, imposes a duty on police to gather information about an accident for a report. The appellant’s statements to the police at the accident scene helped establish grounds for the police to make an approved screening device (ASD) demand.

The trial judge admitted evidence of the police officer’s observations about the smell of alcohol on the appellant’s breath. He said, at para. 87:

As well, I am of the view that the officer’s detection of the odour of alcohol on the way to the cruiser, prior to the eliciting of material information, reflects general observations an officer might make of the driver while carrying out other authorized duties and which are admissible [Cases and citations omitted].

The summary conviction appeal judge dismissed the application. She said, at para. 6:

First, the trial judge did not err when he found that the police officer’s detection of the smell of alcohol from the appellant did not breach his s. 7 Charter rights against self-incrimination. The evidence of the odour did not result from any compulsion or direct participation designed to provide evidence and it did not stem from the appellant being directly compelled to participate in making the H.T.A report [Cases and citations committed].

[37] In my view, the trial judge committed no error of law when she chose not to exclude the physical indica of impairment made by PC Edwards. PC Edwards smelled alcohol at two separate and distinct times. The first was made during compelled participation in the collision investigation; the second was made when PC Edwards had isolated Mr. Frost in the police cruiser. At the time Mr. Frost was in the cruiser, the odour of alcohol was incidental to PC Edwards engaging in a lawful investigation. It was not discovered through Mr. Frost’s compelled direct participation.

[38] The trial judge’s finding of fact that some of Mr. Frost’s conversation with PC Edwards was not compelled direct participation in an HTA report is entitled to deference.

Summary and Conclusion

[39] As set out above, the standard of review on a summary conviction appeal is whether, based on the evidence, the decision reached by the trial judge is a finding that could have reasonably been reached. In my view, the trial judge’s decision is supported by the evidence, and there is no basis for this court to interfere with her determinations. This appeal is, therefore, dismissed.

CASULLO J.

Released: September 8, 2021