COURT FILE NO.: SCA 101431 DATE: 2023/05/17

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Appellant – and – JEREMIAH BELL Respondent

Counsel: M. Michaud, Counsel for the Appellant E. Uhlmann, Counsel for the Respondent

HEARD: July 20, 2022 and August 3, 2022, and in writing

THE HONOURABLE JUSTICE I.R. SMITH

Reasons for Judgment

Introduction

[1] Following a trial in the Ontario Court of Justice, the respondent was convicted of the offence of failing to stop after an accident (contrary to s. 320.16 of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”)) but was acquitted of the offence commonly known as “over 80” (contrary to s. 320.14(1)(b) of the Code). The Crown appeals that acquittal to this court, alleging various errors in the learned trial judge’s reasons.

[2] For the reasons which follow, the appeal is allowed and a new trial is ordered.

Background

[3] During the afternoon of December 19, 2019, the respondent was driving a black Mazda automobile westbound on Highway 401 near Milton, Ontario. He was giving three co-workers a ride home from work. These passengers, as well as another driver on the road that day, testified at trial that the respondent was driving aggressively, swerving within his lane, and coming too close to other vehicles as he changed lanes. He kept saying that he wanted to “floor it.”

[4] Eventually, the respondent’s vehicle swerved out of its lane, hit the rumble strip at the left-hand side of the highway, bounced off the median dividing wall and struck a transport truck which was in the middle lane. The Mazda’s airbags deployed and there was smoke in the cabin of the car. Parts of either the car or the truck were falling off and the car was shaking. It was clearly damaged. The truck driver stopped his truck and activated his four-way flashers. The respondent kept on driving.

[5] The respondent’s passengers begged him to pull over and stop. One of the passengers had suffered a head injury and told the respondent as much. The passengers asked him to stop but the respondent said that “he couldn’t, he had to go home.” The passengers yelled at the respondent to stop at least 20 times before he pulled over at the side of the 401.

[6] When he did, everyone got out of the car and the respondent surveyed the damage. One of the passengers described the front of the car as “totalled” and another thought it was undrivable. Nevertheless, and even though two tow trucks had arrived, the respondent wanted the passengers to get back into the car so he could leave. They refused. He said, “sorry, I got to go” and got back into the car and departed, leaving the passengers at the side of the highway to fend for themselves. Before leaving he said, “I can’t do this” and “I can’t afford it.” Both the police and an ambulance arrived. The passenger with a head injury was taken to hospital, from which he was released after a four hour stay. The others were picked up by the girlfriend of one of the passengers.

[7] In his testimony, although he denied driving aggressively, the respondent confirmed that he knew that one of his passengers had injured his head and that the passengers were upset. He testified, however, that he believed at the time that he had hit only the median of the highway and had not come into contact with the transport truck. He testified that he was in shock. He said that although the air bags had deployed, he considered the damage to his car “cosmetic.” The respondent said that he pulled over as soon as it was safe to do so. He decided to drive home and report the accident by telephone there, thinking that a single car accident did not require him to remain at the scene. He was not concerned about the safety of his passengers who were standing at the side of the 401.

[8] The respondent drove to his home in Cambridge, which took about 25 minutes, and Cst. Ryan Ball of the Ontario Provincial Police, who was dispatched to investigate at 4:04 p.m., was able to locate the respondent and his damaged car there. Reports of the respondent’s collision had been called in to police by witnesses and by the respondent and the dispatcher advised that the driver of the Mazda was under the influence of alcohol. Cst. Ball said that he was at the respondent’s home at 4:35 or 4:40 p.m. and saw the respondent’s damaged car sitting in the carport. He waited until 4:49 p.m. for another officer to arrive. He then found the respondent on the deck or patio at the rear of the house. The respondent told Cst. Ball that he had had a glass of wine to try to calm down after the accident. He said that he was in shock (but declined the officer’s offer to call an ambulance). A second officer on the scene, Cst. David Forde, testified that he saw a glass or a cup and a bottle of alcohol on a countertop inside the respondent’s house. Cst. Ball said that he could smell alcohol on the breath of the respondent. At 4:50 p.m., Cst. Ball formed the suspicion that the respondent had alcohol in his body and made the demand that the respondent supply a sample of his breath into an approved screening device (“ASD”).

[9] Cst. Ball, who has been employed as a police officer since 2000, testified that he remembers asking the respondent when he had his last drink and that the answer “must have fit within the process that I would normally take to wait for someone to be rid of mouth alcohol.” He said that his practice was to ensure as a matter of fairness that there was always 20 minutes from the time of a suspect’s reported last drink to the time of the taking of the ASD test.

[10] The respondent made two unsatisfactory attempts to provide a breath sample into the ASD but provided a suitable sample on a third attempt. He registered a “fail” on the ASD at 5:00 p.m. and was arrested. He later provided breath samples to a qualified breath technician which revealed respectively that he had 143 and 133 mg of alcohol in 100 ml of his blood.

[11] The respondent testified that after he got home, he sat in his car and called to report the accident. When the call was over, he went into his house and immediately drank 800 ml of wine from a large mug over a span of about 5 – 10 minutes. He said that he saw the police officers at his house about 25 minutes after he arrived home. He put down his mug and did not drink in the presence of the officers.

[12] The respondent testified that he knew that it was the responsibility of the police to investigate the sobriety of a driver involved in an accident, and that when he had been in collisions in the past, investigating police officers had asked him questions about whether he had been drinking. He denied that he left the scene of the accident to prevent the police from investigating his sobriety there.

[13] The respondent denied drinking any alcohol before arriving at his home after the accident. He said that the collision with the truck happened after his car hit a patch of ice and he lost control (there was conflicting evidence about the state of the highway that afternoon).

[14] None of the passengers saw the respondent drinking at any point that day, either at work or during the drive home from work, and none of them saw signs of impairment or smelled alcohol coming from the respondent, although one of the passengers said that the respondent had “seemed a little off” at work that day and had had a minor accident while operating a forklift. Cst. Ball testified that he observed no sign of impairment until the respondent was at the police detachment, where he developed blood shot eyes.

The trial judge’s reasons

[15] The trial judge gave oral reasons for judgment. After reviewing the evidence, he turned first to the allegation that the respondent’s blood alcohol exceeded 80 mg per 100 ml of blood within two hours after having operated his vehicle. He quoted from sub-sections 320.14(1)(c) and (5) of the Code, which set out the offence and the circumstances under which a person will not be guilty of that offence. The relevant portions of s. 320.14 reads as follows:

(1) Everyone commits an offence who

(c) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;

(5) No person commits an offence under paragraph (1)(b) if

(a) they consumed alcohol after ceasing to operate the conveyance;

(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and

(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.

[16] The trial judge noted that the respondent had consumed alcohol after operating his conveyance and that the defence argued that, with respect to sub-section (5)(c), “a reasonable doubt should be created by the amount of alcohol he consumed after operating his motor vehicle.” The trial judge continued, defining the issue before him as follows: “whether or not [the respondent] had no reasonable expectation that he would be required to provide a sample of breath or blood after operating his motor vehicle.”

[17] The reasons then refer to the judgment in R. v. Clarke, 2021 NLPC 42, to which I will return below, and continue as follows:

Even if I believe Mr. Bell knew that he struck the truck and left the scene, there must be some evidence, in my mind, to show that he was under the influence of alcohol or at least had consumed alcohol prior to the accident. Mr. Bell denies consumption until he arrives at home. The Crown, in my mind, is able to produce no other evidence of alcohol consumption at this trial.

The three passengers in Mr. Bell’s car indicate there was nothing in their mind to show that Mr. Bell had been drinking. Indeed, they were in a closed car with Mr. Bell for at least 20 minutes and I would have thought that if he had consumed alcohol at least the smell of an alcoholic beverage would be detected by one or more of the passengers. However, they did not detect any smell of alcohol in the vehicle.

In relation to the investigation by the police, I felt that the police were very fair witnesses and described Mr. Bell as an individual who showed no symptoms of impairment or the consumption of alcohol with the exception that he had alcohol on his breath, which was clearly explainable by the fact that he admitted having a large glass of wine upon his return home to soothe his nerves after the accident and indeed the officers saw the glass, or a glass, and a bottle which they felt contained an alcoholic beverage.

Therefore, in my mind, Mr. Bell has satisfied the three requirements under s. 320.15(a), (b) and (c) [sic] to avoid liability under that section of the Criminal Code and I would therefore find him not guilty on the charge having over 80 milligrams of alcohol in 100 millilitres of his blood.

[18] The trial judge also considered the respondent’s argument respecting the issue of mouth alcohol. After reviewing some of the relevant authorities, he found that Cst. Ball did not wait 15 minutes as required to ensure that the ASD test is not affected by mouth alcohol. He reasoned as follows:

In my view, the police did not wait the 15 minutes before administering the approved screeding device test to Mr. Bell. Office Ball indicated that he was sure he waited the prescribed time but could give me no factual basis for that opinion, nor was it in his notes. Officer Forde was not able to assist in any way about residual mouth alcohol.

In my view, it was even more important to consider residual mouth alcohol in this case because Mr. Bell had said he had consumed alcohol recently and there was alcohol on the counter in a bottle. It is not like the cases where a person is driving from a bar and is stopped 20 or 30 minutes down the road. In this case, the police had no idea when Mr. Bell had consumed the alcohol but they saw it at his residence.

It is my view that the only evidence the police had to require Mr. Bell to give samples of his breath into the Intoxilyzer was the failure of the ALERT device. There were not other indicia of impairment present that the police could rely upon.

[19] Accordingly, the trial judge found that the result of the ASD test could not be relied upon to provide grounds to make a demand for Intoxilyzer samples. Those samples were therefore taken in breach of s. 8 of the Canadian Charter of Rights and Freedoms (the “Charter”).

[20] The trial judge made reference to the judgment in R. v. Grant, 2009 SCC 32, and the three factors set out there when considering the exclusion of evidence under s. 24(2) of the Charter. He referred to the first factor, the seriousness of the Charter breach, characterized the breach in this case as “egregious,” and excluded the results of the Intoxilyzer test. The trial judge continued, saying “I do not need to consider the other factors.”

[21] For this reason, in addition to the finding that the respondent had successfully raised the statutory defence in s. 320.14(5), the respondent was acquitted of the charge of over 80.

[22] The trial judge then turned to the offence of failing to remain at the scene of an accident. He found that the respondent knew that he had had a collision with the transport truck, and that one of his passengers was complaining of a head injury resulting from that collision. For these reasons, by leaving the scene of the accident, the respondent committed an offence against s. 320.16 of the Code. He was found guilty and later sentenced for that offence.

Grounds of appeal

[23] The Crown raises three grounds of appeal.

[24] First, it is argued that the trial judge erred in his interpretation of s. 320.14(5) of the Code. In this respect the Crown says that to rely on the exception set out in this sub-section, the accused must raise an air of reality with respect to all three criteria. That is, there must be an air of reality to the suggestion that the accused was drinking after driving and that the accused had a reasonable expectation that he would not be required to provide a sample of his blood or breath, and that the accused’s post-driving alcohol consumption is consistent with the Intoxilyzer results, and with his having had a blood alcohol level under 80 at the time of driving. Here, according to the Crown, there was no evidence of the third criterion, which the trial judge failed to consider in any event, and the trial judge erred in his analysis of the respondent’s “reasonable expectation.”

[25] Second, the Crown argues that the trial judge erred by finding a breach of s. 8 of the Charter based on the issue of mouth alcohol because he failed to follow and properly apply controlling authority on the point. The Crown argues that there is no requirement in every case where there are concerns respecting mouth alcohol that the police wait 15 minutes before administering an ASD. On the contrary, the proper question is whether the officer acted reasonably in believing that the ASD would produce a reliable result. The trial judge, so the Crown argues, did not turn his mind to this question.

[26] Third, the Crown submits that the trial judge erred by excluding the evidence of the Intoxylizer results. It is argued that the finding of the conduct of the police was egregious, was made in the absence of any evidence of egregious conduct and, further, the trial judge failed to conduct a complete analysis of the relevant factors for determining whether evidence should be excluded pursuant to s. 24(2) of the Charter.

[27] I am satisfied that the appeal should be allowed on the first and third grounds of appeal and that a new trial should be ordered.

The defence to over 80 in s. 320.14(5) of the Code

Onus and air of reality

[28] The offence set out in s. 320.14(1)(b) of the Code prohibits having a blood alcohol equal to or exceeding 80 mg in 100 mL of blood “within two hours of ceasing to operate a conveyance.” In this respect, the offence differs from its predecessor (s. 253(1)(b) of the Code), which prohibited being over 80 at the time of driving. Under the heading “Exception – alcohol,” [1] this new offence is accompanied by the defence codified in s. 320.14(5), which provides that the accused will not be guilty of the offence set out in s. 320.14(1)(b) if (i) the accused consumed alcohol after driving, (ii) the accused, after ceasing to drive, had no reasonable expectation that they would be required to supply a sample of breath or blood, and (iii) the accused’s alcohol consumption is consistent with the results of the Intoxilyzer test and with their having had a blood alcohol level under 80 at the time they were driving.

[29] Obviously, the Crown bears the burden of proving all the elements of the offence set out in s. 320.14(1)(b), but the parties disagree on the proper approach to the exception set out in s. 320.14(5). The Crown takes the position that where there is an air of reality to the defence provided for in that sub-section, the Crown bears the burden of proving that the defence has not been made out. Importantly, on the Crown’s submission, since the defence requires that each of the three elements of the exception be made out – or at least that a reasonable doubt be raised with respect to each of them – there must be an air of reality with respect to each element before the defence could be successfully employed.

[30] The respondent says that the evidence need not disclose an air of reality before s. 320.14(5) is considered. He submits, and here I quote from his factum, that s. 320.14(5) “create[s] additional elements to the offence that must be disproven by the Crown, at least in cases where the facts disclose drinking after driving.” In this respect he notes that s. 320.14(1)(b) and s. 320.14(5) expressly refer to each other and that the latter, the exception section, begins with the phrase “No person commits an offence under paragraph (1)(b) if …” The respondent argues that parliament’s drafting choices here make the statutory exception unlike other codified defences – where an air of reality must be raised – like duress (s. 17 of the Code – “A person who commits an offence under compulsion of threats … is excused for committing the offence …”) and self-defence (s. 34(1)(b) – “A person is not guilty of an offence if … (b) the act that constitutes the offence is committing for the purpose of defending …). In those cases, the Code makes clear that the accused has committed an offence but is excused from or was justified in having done so. No similar language is used in s. 320.14.

[31] I cannot accept the respondent’s argument. While the parties spent some time discussing whether s. 320.14(5) creates an excuse or a justification or an exception, it seems to me that little turns on resolving this debate. The Code adopts the term “exception” in its headings and the question is simply whether the codified exception must be disproven by the Crown as a matter of course or whether the evidence must first disclose an air of reality before the Crown is put to that task.

[32] I note that the trial judge appears to have taken the view that there was some burden on the defence given that he concluded the portion of his reasons which deals with the statutory exception by saying “Mr. Bell has satisfied the three requirements under s. 320.15(a), (b) and (c) to avoid liability … and I therefore find him not guilty…” [emphasis added]. Further, in his submissions to the trial judge, counsel for the respondent seemed to take the position that the accused must put the defence in issue on the evidence before the Crown is put to the disproof of the defence. He submitted as follows:

So, he meets all three of the conditions for that exception to operate and at that point the – he’s put it in issue, the evidence is there and I would submit that the onus shifts back to the Crown disproving that beyond a reasonable doubt in the absence of clear language to the contrary. And that – that’s not proven [emphasis added].

[33] In this court, while taking the position that he is not required to establish an air of reality, the respondent’s argument is ambiguous on the point given that he has submitted that evidence of drinking after driving may be required before the Crown is put to the disproof of the elements of the exception. I quote again from the respondent’s factum: “the additional elements to the offence that must be disproven by the Crown, at least in cases where the facts disclose drinking after driving [emphasis added].”

[34] These varying statements by the trial judge and the respondent’s counsel – as well as the position taken by the Crown – that there should be some evidence before s. 320.14(5) is put in play, have in common the idea that under Canadian law defences typically need not be negatived by the Crown in the absence of an air of reality to the defence, which air of reality must be based on the evidence (see R. v. Holmes, [1988] 1 S.C.R. 914, at para. 36, per Dickson C.J.C.). In R. v. Cinous, 2002 SCC 29, Chief Justice McLachlan and Justice Bastarache, writing for the Court, in a case dealing with the defence of self defence, described this evidential burden as follows (at paras. 52 – 53):

52. It is trite law that the air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive. Dickson C.J. drew attention to the distinction between these two types of burden in R. v. Schwartz, [1988] 2 S.C.R. 443, at p. 466:

Judges and academics have used a variety of terms to try to capture the distinction between the two types of burdens. The burden of establishing a case has been referred to as the “major burden,” the “primary burden,” the “legal burden” and the “persuasive burden.” The burden of putting an issue in play has been called the “minor burden,” the “secondary burden,” the “evidential burden,” the “burden of going forward,” and the “burden of adducing evidence.” [Emphasis added by McLachlan C.J. and Bastarache J.]

The air of reality test is concerned only with whether or not a putative defence should be “put in play”, that is, submitted to the jury for consideration. This idea was crucial to the finding in Osolin that the air of reality test is consistent with the presumption of innocence guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms.

53. In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true. […] The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses. It can also rest upon the factual circumstances of the case or from any other evidential source on the record. There is no requirement that the evidence be adduced by the accused. […]

[35] I am not persuaded that the wording of the exception set out in s. 320.14(5), and its interconnectedness with s. 320.14(1)(b), mean that the defence provided by Parliament should be interpreted in a different way than as described in this excerpt. The Code contains multiple examples of statutory exceptions to otherwise criminal conduct. [2] For example, s. 335(1.1) of the Code provides for an exception to the offence of taking a motor vehicle without consent where an occupant of the motor vehicle “attempted to leave the motor vehicle” or “actually left the motor vehicle.” This section of the Code was considered by the Court of Appeal in R. v. P.H., 143 C.C.C. (3d) 223 (Ont.C.A.). Dealing with the question of what onus was placed on the accused when advancing the statutory defence, Finlayson J.A. wrote as follows (at paras. 15 and 16):

No one has suggested that these defences impose a reverse onus on the accused although they may in a given case impose an evidentiary burden upon the accused. This evidential burden to bring the defence of compulsion before a jury was described in R. v. Gill, [1963] 2 All E.R. 688 (C.C.A.) at 691:

The accused, either by the cross-examination of the prosecution witnesses or by evidence called on his behalf, or by a combination of the two, must place before the court such material as makes duress a live issue fit and proper to be left to the jury.

Accordingly, if there is an air of reality to a defence set out under s. 335(1.1), the trial judge would be obliged to instruct himself, as he would a jury in the normal course, as follows: if the evidence is accepted he must return a verdict of not guilty; if it is not accepted but raises a reasonable doubt, he must also return a verdict of not guilty; and even if he is not left in a reasonable doubt by the evidence in support of the defence, he must still go on to consider whether or not, on the basis of all the evidence, the accused is guilty beyond a reasonable doubt.

[36] In R. v. Alexandre, 2022 ONCJ 132, my colleague Rahman J., then of the Ontario Court of Justice, considered the exception to the offence of driving while prohibited: registration in an alcohol ignition interlock device program (see s. 320.18(2) of the Code). Justice Rahman found that “s. 320.18 creates a defence to the offence of operating while prohibited, and does not create an additional element of the offence.” He went on to conclude that to take advantage of this exception, the accused faced an evidentiary burden to show his registration in an interlock program. Absent such a showing, the Crown was not required to prove that the accused was not so registered (see para. 28; see also R. c. Rondeau, 2020 QCCA 1207, at paras. 4 – 8).

[37] As I have said, nothing in the wording of s. 320.15(5) suggests that any different approach should be adopted. In my view, to avail himself of the statutory exception the respondent was required to show on the evidence that there was an air of reality to the application of that defence. The Crown is not required to negative or disprove the elements of s. 320.15(5) in the absence of such a showing.

[38] The exception with which we are concerned here, on its face, plainly applies only when all three elements have been established (or at least when they are not disproven beyond a reasonable doubt by the Crown). [3] Accordingly, an air of reality will exist only when there is an air of reality to each of those three elements. It is not enough, in my opinion, for the accused to say, as the respondent does here, that in any case where there is evidence of drinking after driving that there is an air of reality to this exception. An air of reality is established only where there is an air of reality to each of s. 320.14(5)’s elements. [4] Some evidence of drinking after driving – without more – provides an air of reality of nothing. In R. v. Pappas, 2013 SCC 56, a case involving the partial defence of provocation, Chief Justice McLachlan described the question before the Court as follows (at para. 27):

The question is whether a properly instructed jury acting reasonably could be left in a state of reasonable doubt as to the presence of each of the elements of the defence of provocation. There must be an evidential foundation for both the objective and subjective elements of the defence [emphasis added].

[39] The question for the trial judge in this case then, before considering whether the Crown had negatived the statutory defence, was whether there was an air of reality to each of the elements of that defence. Whether or not there was an air of reality to the defence is a question of law (Cinous, supra, at para. 55).

Drinking after driving

[40] The first of those elements requires that there be an air of reality to the suggestion that the accused consumed alcohol after ceasing to operate his car (see s. 320.14(5)(a)). The Crown concedes that the air of reality test for this element has been met. The respondent said to the officers who attended at his house that he had had some wine after arriving home and at least one of the officers saw a bottle of alcohol and the respondent holding a glass.

Reasonable expectation

[41] The second element of the statutory exception required the court to consider whether there was an air of reality to the suggestion that the respondent had no reasonable expectation that he would be required to provide a sample of his breath or blood after ceasing driving (s. 320.14(5)(b)). In this respect it bears emphasis that the purpose of this provision is to deter the consumption of alcohol after driving when one would be expected to be required to provide a breath or blood sample because such conduct is inherently mischievous to the investigation of drinking and driving offences. [5] Parliament’s use of the words “no reasonable expectation” means that this element has both subjective and objective elements and is properly evaluated using the “modified objective test” (see, for example, R. v. Hundal, [1993] 1 S.C.R. 867, at paras. 38 – 44; see also, Desphande, supra, at para. 93) commonly employed for driving offences (see Hundal, at paras. 26 – 38; R. v. Beatty, 2008 SCC 5, at paras. 7 – 8), and certain defences (see, for example, R. v. Khill, 2021 SCC 37, at para. 54). This standard requires the trial judge to assess the reasonableness of the accused’s conduct by placing the reasonable person in the circumstances which the accused faced (R. v. Roy, 2012 SCC 26, at para. 38).

[42] In the context of s. 320.14(5)(b), and on the facts of this case, this means asking whether the reasonable driver who had been in an accident on the 401, and had left the scene of that accident, which accident involved a loss of control of a car, a collision with the median wall, another collision with a transport truck, [6] the deployment of air bags, smoke in the cabin of the car, a passenger complaining of a head injury, and significant damage to the car, would not expect that they would be required to provide a sample of their breath or blood to the police. One might add to these considerations that the respondent knew the police had been called (indeed, he had called them himself) and the respondent’s own testimony that he understood that the police would normally seek to determine whether a driver involved in an accident had been drinking and that he himself had been asked such questions by the police when he had been involved in accidents in the past. One might also add the respondent’s claim that he consumed 800 ml of wine immediately after calling the police – conduct which the Supreme Court of Canada has described as inherently suspect as “an act of mischief intended to thwart police investigators” (see R. v. St-Pierre, supra, at para. 106; see also, R. v. Puyenbroek, 2007 ONCA 824, at para. 56).

[43] In my respectful view, the answer to the question posed above is that no reasonable driver in those circumstances would have failed to expect that they would be required to supply a sample of their breath or blood. The evidence led at trial did not establish an air of reality to this element of the statutory exception let alone raise a reasonable doubt. The trial judge erred in law in concluding otherwise.

[44] I am fortified in this view by the conclusions reached in other similar cases. In R. v. Mair, 2019 ONSC 2215, Lipson J. wrote as follows (at para. 38):

Mr. Mair would have been required, in order to succeed in his defence, to establish that he had no reasonable expectation that he would be required to provide a sample of his breath. Given the fact that he had just been involved in an accident, Mr. Mair would have considerable difficulty establishing that.

[45] Similarly, in R. v. Madadi-Farsijani, 2021 ONCJ 196, Ghosh J. wrote (at para 30):

Mr. Madadi-Farsijani testified that after causing a collision on a major highway, he consumed a tremendous amount of alcohol. There was visible damage to his own vehicle. The other driver quickly confirmed to the defendant that the police would be called as an obvious consequence. On any standard, I find it was only reasonable to expect that a breath test was required in the circumstances.

[46] In Desphande, supra, Justice Renwick came to the following conclusions (at para. 94):

The Defendant had clearly left the scene of a minor vehicle collision where he could reasonably have anticipated the involvement of the police given the taxi driver's insistence that they should exchange driver and vehicle information. Again, the Defendant's behaviour in leaving the accident scene and then purportedly downing approximately 375 mL of spiced rum was unusual and unreasonable. If the police became involved, it was highly likely that they might require a breath sample from the Defendant. By leaving the accident scene, this raised the possibility of having to provide a breath sample to a probability.

[47] Similar conclusions were reached in R. v. Herring, 2022 SKPC 31, at para. 57 and were predicted in the legislative background document prepared by the Department of Justice when this legislation was introduced. [7]

[48] Each of these cases bears some similarity to the case at hand. As they demonstrate, without challenging in any way the trial judge’s findings of fact, there was no air of reality to the suggestion that the respondent reasonably did not expect to be required to supply a sample of his breath or blood to the police. The respondent himself summoned the police to his home after he left the scene of the accident. In all the circumstances, to quote Renwick J., this “raised the possibility of having to provide a breath sample to a probability.”

[49] It seems that the trial judge’s contrary conclusion in the present case was animated by his reading of the judgment in Clarke, supra. There (at para. 21), Porter Prov. J. found that the accused could not avail himself of the defence in s. 320.14(5) “because he knew that he had struck a parked car after he had been drinking.” The trial judge quoted that part of Clarke, and then added “I put the emphasis on ‘after he had been drinking.’” He said that he agreed with Clarke because the accused in that case “had been drinking at the time he was operating his motor vehicle,” but noted that in the present case there was no evidence that the respondent had been drinking before or during the time he was operating the Mazda.

[50] To the extent that the trial judge appears to have concluded that to disprove this element of the defence in s. 320.14(5) the Crown must lead some evidence that the accused was “under the influence of alcohol or at least had consumed alcohol prior to the accident,” in my view, the learned trial judge erred. There is no such requirement in the legislation, and I do not read the reasons in Clarke as proposing that there is or should be such a requirement. The judge in that case was simply reporting on the facts in that case. The absence of evidence in this case that the respondent had been drinking before driving was, if not completely irrelevant to the question of the respondent’s reasonable expectation, far from dispositive of that issue.

[51] Even assuming that the respondent had nothing to drink before driving, or that he believed he was sober, the reasonable person in his circumstances would understand that the police would want to verify his sobriety. In this respect, I emphasize that the threshold for an ASD demand (reasonable suspicion (see s. 320.27(1)(b) of the Code)) is low (R. v. Lindsay, 134 C.C.C. (3d) 159 (Ont. C.A.), at para. 2; R. v. Schouten, 2016 ONCA 872, at para. 27) and may be established even in the absence of indicia like the odour of alcohol (R. v. Walsh, 2019 ONSC 2337, at para. 18).

[52] To conclude this portion of my reasons, the trial judge erred in law by giving effect to the respondent’s argument that he had no reasonable expectation that the police would require a sample of his breath when there was, on the evidence, no air of reality to that suggestion.

Consistency with Intoxilyzer results and driving while below 80

[53] Respectfully, in my view, the trial judge also erred in his treatment of the third element of the exception set out in s. 320.14(5)(c) of the Code.

[54] It is evident that the trial judge considered the question of whether the respondent reasonably expected to be required to supply a sample of his breath or blood to be the key issue in this matter. He dealt with the question posed by subsection (5)(c) in a single sentence, which I quote again, this time in full:

Mr. Bell, in his submission, clearly consumed alcohol after ceasing to operate the motor vehicle, and at the very least, a reasonable doubt should be created by the amount of alcohol he consumed after operating his motor vehicle pursuant to s-s. (c) of s. 320.14(1) [sic].

[55] I agree with the Crown that, on the evidence which was before the trial judge, which included no expert evidence, there was no air of reality to the respondent’s submission that the court should entertain a doubt on this point.

[56] To succeed on this element, the court must conclude (or have a reasonable doubt) that the accused’s post-driving alcohol consumption is consistent with the Intoxilyzer results and with their having had a blood alcohol level below 80 at the time of driving. In other words, this element of the statutory exception itself has two elements. To avail itself of this exception the defence must show that there is an air of reality to both elements. These elements were both incorporated in the predecessor legislation (in s. 158(1)(d.1) of the Code) and have been the subject of prior judicial consideration. As we will see, practically speaking, expert evidence will be required for the accused to take advantage of this element of the exception.

[57] The Supreme Court of Canada considered the predecessor provision in R. v. St-Onge Lamoureux, 2012 SCC 57, and found it constitutionally sound. There, for a majority of the Court, Deschamps J. wrote as follows (at para. 90):

… Whereas requiring the accused to show a connection between a malfunction of the instrument and the determination that his or her blood alcohol level exceeded .08 imposes an undue burden on the accused, the same is not true of requiring the accused to show that his or her consumption of alcohol shortly before or after the alleged offence was consistent with a blood alcohol level that did not exceed .08 at the time of the alleged offence. In such situations, the accused does not challenge the test results, but invokes his or her own unusual behaviour. It is the accused - and not the prosecution - who knows when he or she drank, and how much. What is more, it is also the accused - and not the prosecution - who would decide to analyze his or her capacity to absorb and eliminate alcohol, and to adduce evidence in this regard. I do not therefore consider it unduly onerous to require the person who has this information and is in a position to tender relevant evidence to show not only that he or she had a "last drink", or drank after being pulled over, but also that the difference resulting from that consumption is relevant to the determination of his or her guilt or innocence. … [emphasis added].

[58] After St-Onge Lamoureux, in R. v. Benoit, 2013 NLCA 3, at para. 21, the Newfoundland and Labrador Court of Appeal concluded that the evidence required to take advantage of this defence would, “as a practical necessity,” have to come from an expert, and added as follows:

…an ordinary person is not able to say whether the quantity of alcohol an accused says he or she consumed, both before and after driving, is consistent with that accused's blood alcohol level not exceeding .08 when driving and consistent with his or her breathalyzer test results. An ordinary person is simply not possessed of the skills, knowledge and tools necessary to give evidence which addresses the absorption rate of alcohol an accused says he consumed.

[59] A corollary to this conclusion is that the question of the consistency of the evidence of alcohol consumption and of blood alcohol level at the time of the tests and at the time of driving is not an issue open to be determined by a judge’s own assessment of lay evidence or by way of judicial notice.

[60] The Quebec Court of Appeal came to this conclusion in R. v. Jasmin, 2018 QCCA 556, at paras. 21 – 30, although that court made the observation that expert evidence may not be required to establish the accused’s blood alcohol level at the time of driving if the evidence is that the accused had consumed no alcohol prior to driving. In that case, the accused’s blood alcohol would be zero, a finding which could be made by way of judicial notice (see para. 23). However, the court confirmed in Jasmin that expert evidence will be required to satisfy the second part of the test: that the accused’s evidence of post-driving alcohol consumption is consistent with the Intoxilyzer results. Doyon J.A. observed (at para. 28), that the “trial judge could not even know, even on the basis of judicial notice, if the appellant’s scenario was plausible… An expert, however, probably could.”

[61] As the Crown argues, by analogy, these cases suggest that expert evidence will be required where accused persons seek to rely on the current version of the statutory exception as it is captured in s. 320.14(5)(c). This approach is consistent with the fact that our law in this area relies on the scientifically reliable results of the devices which we use to measure blood alcohol content (St-Onge Lamoureux, supra, at paras. 40 – 45). To take advantage of the exception, the accused must show that the evidence is consistent with those scientifically reliable results. To do that, expert evidence will be required. Failing that, the accused will be unable to establish either an air or reality or a reasonable doubt with respect to this element of the exception.

[62] To the extent that this question has been considered under the current provision, the courts appear to have come to the conclusion, as I have, that expert evidence is necessary. In Desphande, supra, Renwick J. said (at paras. 96 – 97):

The elements of this part of the statutory defence are identical to the elements used to rebut the presumption created by the former legislation under s. 258(1)(d.1). It seems only logical that the type of evidence required to create an air of reality to this component could only come from a toxicologist. I say this because I am not in a position to evaluate the consumption, absorption, and elimination of alcohol from a person's body, much less am I capable of determining whether the evidence raises an air of reality that s. 320.14(5)(c) can be met.

Even accepting the Defendant's evidence respecting the timing of his consumption of alcohol (which I do not), and the evidence that the Defendant had no reasonable expectation that he would be required to provide a breath sample to police, which is also controversial, I have no evidence with which to evaluate the claim that the Defendant's alcohol consumption was consistent with his BAC when tested and his BAC when operating his Audi was less than 80 mgs of alcohol in 100 mL of blood. There is a complete dearth of evidence to raise an air of reality that this requirement of the statutory defence exists.

[63] See also, Mair, supra, at para. 38; Clarke, supra, at para. 22; and Herring, supra, at para. 53. In Madadi-Farsija, supra, the accused did call the evidence of a toxicologist.

[64] I do not agree with the respondent that requiring expert evidence works an unfairness on the accused. As Doyon J.A. noted in Jasmin, supra, at para. 29, our law requires the defence to call expert evidence in other contexts, for example, where the defence of automatism is advanced. In a passage which applies equally to the current provisions of the Code, Justice Doyon continued as follows (at para. 30):

At first blush, one might believe that the effect of the law is inconsistent here. Indeed, one might ask why it is necessary to force an accused to present such evidence where, according to the accused's version of the facts, which is believed (or which raises a reasonable doubt), the accused did not consume any alcohol prior to driving? To ask such a question is to trivialize the objectives of the law which seeks to protect the public from a range of particularly dangerous offences and which, in order to do so, allows the courts to gauge the accused's credibility and the reliability of the accused's story in light of breathalyzer results: St-Onge Lamoureux, supra. This is why, in my opinion, the better view is that the presumption at s. 258(1)(d.1)(ii) Cr.C. may be rebutted only by expert evidence, as the law implicitly requires, even in a case like this.

[65] Applying the law as I have described it here, on the evidence before the trial judge there was no air of reality to the suggestion that the respondent’s post-driving alcohol consumption was consistent with the Intoxilyzer results. [8] The trial judge was not in a position to assess that question in the absence of expert evidence. Moreover, even on the evidence which was before him, he did not assess that question in any meaningful way. He simply offered the conclusion – without conducting any analysis – that the respondent had raised a reasonable doubt on the question.

[66] In summary, I give effect to this first ground of appeal. On the evidence led at trial, there was no air of reality to the application of the statutory exception found in s. 320.14(5) and in my opinion the trial judge erred in concluding otherwise.

Mouth alcohol and ASD test

[67] As noted above, the trial judge found that the police lacked reasonable and probable grounds to make an Intoxilyzer demand. He found that the police did not wait 15 minutes before administering the ASD test and, given the risk of residual mouth alcohol in this case, the result of that test was not reliable. The Crown argues that the trial judge erred in his treatment of this issue.

[68] I begin by observing that the issue of whether the facts established reasonable grounds is a question of law. While the findings of fact of the trial judge are accorded deference, the legal question is assessed on a correctness standard (R. v. Shepherd, 2009 SCC 35, at para. 20).

[69] It is well-established that the presence of mouth alcohol at the time of the taking of an ASD test may affect the reliability of that test. Where there has been recent consumption of alcohol, it is generally understood that it is preferable, and permitted, for police officers to wait 15 or 20 minutes before administering an ASD test to ensure the reliability of results (R. v. Einarson, 183 C.C.C. (3d) 19 (Ont. C.A.), at paras. 14, 34; R. v. Notaro, 2018 ONCA 449, at para. 41; R. v. Bernshaw, [1995] 1 S.C.R. 254). However, the authorities also establish that the officer who fails to turn his or her mind to the question of mouth alcohol, or fails to enquire about it, does not necessarily render reliance on the ASD result unreasonable. This is so even where the circumstances known to the officer suggest that there is a possibility that the driver has consumed alcohol within the previous 15 minutes (Notaro, supra, at paras. 27 – 33, 45 – 54).

[70] As explained by Paciocco J.A. in Notaro, supra, at paras. 34 – 44, when assessing whether the officer had reasonable and probable grounds to make the Intoxilyzer demand, the inquiry is both subjective and objective. As for the subjective part of the analysis, the question is whether the police officer honestly believed that the ASD fail result provided grounds for the belief that the offence had been committed (paras. 36 – 38).

[71] However, as Justice Paciocco wrote (at para. 39), the “objective component … does the bulk of the work in determining the significance of information about residual mouth alcohol.” This issue turns on the information which the investigating officer knew at the time of the ASD demand and includes information about the effects of mouth alcohol on the reliability of the ASD test result. Paciocco J.A. continued as follows (at para. 42):

It has therefore been accepted that the objective reasonableness of relying on an ASD fail result to form reasonable and probable grounds for an arrest and evidential breath demand can be undermined, on a case by case basis, by credible evidence known to an arresting officer that the suspect had residual mouth alcohol at the time of testing: Einarson; and Mastromartino. Certainly, as Sopinka J. noted in Bernshaw, at para. 51, "where there is evidence that the police officer knew that the suspect had recently consumed alcohol", reliance on a fail result will not be reasonable. By "recently consumed alcohol", he meant within the required waiting window established before the court, typically 15 minutes.

[72] In this case, Cst. Ball testified that he had turned his mind to the question of mouth alcohol given the respondent’s statement that he had had a glass of wine when he got home. In examination-in-chief, Cst. Ball testified as follows when asked if he had any concern about mouth alcohol:

I – I did not. And I would, I would usually wait 20 minutes from the last – the last time of last – last – last drink. On this day, I – I don’t have it in my notes, but I do remember asking when he had his last drink and it must have fit within that process that I would normally take to wait for someone to be rid of mouth alcohol.

[73] Then, in response to questions from the trial judge, Cst. Ball said that he “would have” made this inquiry prior to administering the ASD and that he did not “recall it specifically.”

[74] Counsel to the respondent returned to this issue in cross-examination. Cst. Ball said as follows in answer to counsel’s question about the fact that his inquiry of the respondent does not appear in his notes:

It’s not in my notes, but I felt comfortable to go forward with the roadside test because what was said to me does – does lead me to believe that there was enough time in between.

[75] Counsel then asked how recent a drink has to be to raise a concern. Cst. Ball answered as follows:

Last drink, I – I wait – what I’ve been waiting is 20 minutes after the last drink. So, for an example, at a roadside doing a RIDE program, someone pulls up. Have you had any drinks tonight, sir? Yes, I have. Okay, when was your last drink? Five minutes ago. Well, at that point, I’d wait 15 more minutes. I go by what they say and the amount of time that I wait.

[76] Although the officer’s evidence respecting the timing of events is somewhat vague, it has been established from the evidence that he waited for another officer to attend at the respondent’s residence before approaching the respondent. Cst. Forde arrived at 4:49 p.m. Cst. Ball said that events moved very quickly thereafter, that he had a short conversation with the respondent and that, at 4:50 p.m. he had formed a reasonable suspicion that the respondent had alcohol in his body and made the demand for an ASD sample. At 5:00 p.m., the respondent failed that test. Accordingly, there was on the evidence at least 10 minutes between the respondent’s last drink and the failed test. As noted above, however, the trial judge found that Cst. Ball did not wait 15 minutes before administering the ASD.

[77] The respondent argues that the trial judge rejected the evidence of Cst. Ball that he had turned his mind to the issue of mouth alcohol. The Crown argues that the trial judge found that the officers who testified before him were fair and honest witnesses and that he did not expressly reject their evidence.

[78] Although the reasoning of the trial judge on this issue is sparse, I agree with counsel for the respondent on this point. There is no doubt that the trial judge found that Cst. Ball did not allow for the passage of 15 minutes before administering the test and I think it may fairly be inferred from his reasons that the trial judge rejected the evidence that Cst. Ball considered the mouth alcohol issue at all. I think it is also fair to infer that the trial judge was of the view that, to the knowledge of the police, the respondent had “recently consumed alcohol” as that phrase is explained in Notaro, supra, at para. 42 (quoted above). These findings of fact and credibility were open to the trial judge (especially given the officer’s vague recollection, his reliance on his usual practice rather than actual memory, and his poor notes) and are entitled to deference.

[79] I add, though, that I do not read the reasons as having found that Cst. Ball did not subjectively believe that the ASD fail result gave him grounds to make the Intoxilyzer demand. Accordingly, the focus must be on the question of whether the objective component of the analysis of the alleged reasonable and probable grounds has been met in this case. In Notaro, supra, Paciocco J.A. summarized the objective component in circumstances where there may be residual mouth alcohol as follows (at para. 43):

In my view, the effect of the law relating to the objective component of the reasonable grounds test can be put this way:

• If the information known to an arresting officer about a suspect's residual mouth alcohol would make it unreasonable for the officer to rely on the accuracy of an ASD fail result, reasonable and probable grounds will not be established, whether or not the arresting officer turned her mind to the presence or effect of residual mouth alcohol.
• If it is reasonable for the arresting officer to rely on an ASD fail result based on the information known to her, then the failure of the arresting officer to turn her mind to the presence or effect of residual mouth alcohol is immaterial.

[80] Here, in light of the trial judge’s factual findings, and focusing on Justice Paciocco’s first bullet point, given that the police were aware that the respondent had very recently been consuming alcohol at his home, and given Cst. Ball’s experience and general knowledge of the mouth alcohol issue, it was open to the trial judge to find as he did that it was unreasonable to rely on the accuracy of the failed ASD test.

[81] He was therefore justified in finding that the demand for the Intoxilyzer test was made without reasonable and probable grounds. Those tests were therefore taken in breach of s. 8 of the Charter. This ground of appeal fails.

The exclusion of the evidence

The trial judge’s error

[82] As set out above, the trial judge found that this breach of the Charter was “egregious” and that the Intoxilyzer results should be excluded. He expressly found that he need not consider all three of the criteria for exclusion set out in Grant, supra.

[83] Recently, in R. v. McColman, 2023 SCC 8, at para. 55, the Supreme Court of Canada reiterated the principle that “trial courts must evaluate each of the three lines of inquiry thoroughly.” In the absence of such an inquiry, the appellate court must conduct a fresh Grant analysis (McColman, supra, at para. 56). In doing so, the appellate court accepts the trial judge’s findings of fact and credibility except where those findings are unreasonable or tainted by error (R. v. Boutros, 2018 ONCA 375, at para. 31).

[84] While the respondent acknowledges in his factum that “on the surface” the trial judge’s s. 24(2) analysis is “incomplete,” he urges me to infer that the trial judge did in fact consider all three branches of the Grant criteria. I cannot accept this argument. The trial judge was clear that he was considering only the first criterion. He put it succinctly: “I do not need to consider the other factors.” In this respect, the trial judge erred in law. Accordingly, it falls to this court to consider the s. 24(2) analysis afresh.

The seriousness of the Charter-infringing state misconduct

[85] The trial judge characterized the Charter breach in this case as “egregious” because the police knew that the respondent had been drinking at his home and they saw no other signs of impairment. In other words, the trial judge found that the breach was egregious for essentially the same reasons that he found that there was a breach. Although I am required to defer to the trial judge’s findings of fact and credibility, I am not bound by his assessment of the seriousness of the breach.

[86] In my view, there was nothing which would justify a finding that the breach in this case was egregious. The trial judge made no finding that the police acted in any deliberate or willful way to undermine the respondent’s s. 8 rights, or that the conduct was part of a pattern of police misconduct. At worst, Cst. Ball failed to turn his mind to the question of mouth alcohol and, as a result, failed to wait an extra 5 minutes before administering the ASD test in a case where – on all accounts – the respondent did not drink alcohol after he was in Cst. Ball’s presence. While the trial judge found that the police did not wait 15 minutes before administering the ASD, [9] and that the police had failed to make proper inquiries about the timing of the respondent’s last drink, there was no evidence that the respondent positively told the police that he had finished that drink within the 15-minute period. Further, the trial judge found that the police officers testified in a fair manner. The interaction with the respondent had been free of conflict of any kind. Cst. Ball was concerned that the respondent might need medical attention and offered it to him. He conducted a self-test of the ASD and testified that he believed that it was operating properly. This was no more than a case about the failure to follow the best practices as set out in the manual for the operation of the ASD.

[87] On the continuum of seriousness between mere inadvertent breaches of the Charter and reckless, deliberate and willful violations, in my view the breach here falls closer to the less serious end of the continuum (Grant, supra, at para. 74; R. v. Jennings, 2018 ONCA 260, at para. 26). On the trial judge’s findings, the officer’s failing was at worst a failure to consider an issue which should have occurred to him. There was no suggestion of bad faith. The trial judge’s assessment of the evidence of the officers precludes any such conclusion. Nor is there any suggestion that Cst. Ball did not believe that he had grounds to make the breath demand. As Code J. held in R. v. Commisso, 2020 ONSC 957, at para. 52, the failure to follow best practices as set out in the ASD manual is the kind of technical violation of the Charter which “favours the admission of the evidence.” This was not an egregious breach of the Charter.

[88] On the other hand, Cst. Ball was an experienced officer who knew the risks of mouth alcohol. He should have made inquiries and been sure to wait 15 minutes before administering the test to ensure its reliability. Notwithstanding this fact, on balance, I am of the view that this factor favours inclusion of the evidence. At worst, it has neutral effect. However, if I am wrong it this respect, to quote McColman, supra, at para. 65, these considerations “pull in favour of exclusion, but only slightly.”

Impact on the Charter-protected interests of the respondent

[89] I do not propose to discuss the second branch of the Grant analysis at length because the respondent concedes the correctness of the Crown’s submissions on this point. To quote his factum, the “impact on the Charter-protected interests of the accused on an illegal breath sample is minimal.”

[90] I accept this concession, which is supported by substantial authority (see, for example, Grant, supra, at para. 111; Jennings, supra, at paras. 27 – 32; Commisso, supra, at para. 61). In this case, specifically, there was almost no impact on the respondent. The ASD demand was lawful and if the police had waited 15 minutes as required, the respondent’s sample would have been received into the ASD a mere 5 minutes later.

[91] This factor favours inclusion of the evidence.

Society’s interest in an adjudication on the merits

[92] Under the third branch of the Grant analysis, which concerns the truth-seeking function of the criminal process, I must consider whether the reputation of the administration of justice would be better served by the admission or the exclusion of the evidence. The reliability of the evidence sought to be excluded, the importance of that evidence to the Crown’s case, and the seriousness of the offence, are key considerations in this analysis (Grant, supra, at paras. 79 – 83).

[93] We rely on the results of breath tests routinely in the criminal courts in Canada precisely because those tests are reliable (St-Onge Lamoureux, supra, at para. 40). Without evidence of those test results in this case, the Crown’s case failed. Further, the offence in this case, involving as it did a damage- and injury-causing accident on a heavily-travelled highway after which – in highly suspicious circumstances – the respondent consumed (on his account) a large quantity of alcohol in a short period of time, was a serious one (McColman, supra, at paras. 71 – 72).

[94] In all these circumstances, society’s interest in an adjudication on the merits of this case was very strong, and the negative impact of the admission of the evidence on the long-term reputation of the administration of justice was minimal. This factor strongly favours inclusion (McColman, supra, at para. 73).

Balancing the Grant factors

[95] As I have found that all three Grant factors favour inclusion in this case, it follows that I find that balancing the factors together leads to the same result. Even were I to have found that the first factor pulled somewhat in favour of exclusion, I would have found that it was outweighed by the second and third factors, both of which, in my view, strongly favour the admission of the evidence. This ground of appeal succeeds.

Conclusion

[96] In the result, the Crown’s appeal is allowed on the first and third grounds of appeal.

[97] Counsel are agreed that the appropriate remedy in this matter is an order for a new trial given that the respondent’s acquittal pre-empted his intended challenge to the constitutionality of s. 320.14.

[98] Accordingly, the appeal is allowed and a new trial is ordered before a different judge of the Ontario Court of Justice on the charge under s. 320.14(1)(b) of the Code.

Footnotes

[1] Sub-sections (6) and (7) appear in the Code under the headings “Exception – drugs” and “Exception – combination of alcohol and drug,” respectively.

[2] To cite just a few examples, see sections 60 (sedition), 63 (unlawful assembly), 168 (mailing obscene matter), 286.2 (material benefit from sexual services), and sections 94, 95, 96, 109, 117.04 (various firearms offences).

[3] This proposition was accepted by the respondent at trial and by the trial judge (see the excerpts from the submissions of counsel to the respondent and from the oral reasons for judgment both quoted at para. 32 above).

[4] I note that the same conclusion was reached in R. v. Desphande, 2021 ONCJ 699, at para. 88.

[5] In this respect see the preamble to An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21: “Whereas it is important to deter persons from consuming alcohol or drugs after driving in circumstances where they have a reasonable expectation that they would be required to provide a sample of breath or blood”. See also: R. v. Von Teichman, 2021 QCCQ 11081, at paras. 36 – 47 and R. v. St-Pierre, [1995] 1 S.C.R. 791, at para. 106.

[6] Although the respondent denied knowing that he had been in a collision with the transport truck, I note that when dealing with the offence of failing to remain at the scene of an accident the trial judge found that the respondent was aware that there had been such a collision.

[7] Legislative Background: reforms to the Transportation Provisions of the Criminal Code (Bill C-46): https://www.justice.gc.ca/eng/cj-jp/sidl-rlcfa/c46/p4.html, at footnote 18.

[8] This is so even if it might be said that there was an air of reality to the respondent’s blood alcohol level being zero at the time of driving given his testimony that he had consumed no alcohol before driving, which was corroborated to some extent by the absence of evidence from other witnesses that the respondent had been seen drinking or had exhibited signs of impairment. Again, I note that there must be an air of reality to all of the elements of the statutory exception.

[9] I note here that the Crown submits that the evidence reveals that Cst. Ball was in the respondent’s company for at least 15 minutes before the ASD test was administered. While there is some evidence to support this submission, on my reading of the evidence the better view is that Cst. Ball did not engage with the respondent until Cst. Forde had arrived on the scene. It does not appear controversial that Cst. Forde arrived at 4:49 p.m., in which case the maximum amount of time during which Cst. Ball was in the respondent’s company before the test was administered was 11 minutes.

I.R. Smith J. Released: May 17, 2023