Court File and Parties

COURT FILE NO.: 22-A9068 DATE: 2024/11/27

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – OLEEN SMETHURST Appellant

Counsel: Carl Lem, for the Crown Michael A. Johnston and Ryan E. Durran, for the Appellant

HEARD: September 25, 2024

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

APPEAL FROM THE DECISION OF N. BOXALL J., OF THE ONTARIO COURT OF JUSTICE

JUSTICE MARC LABROSSE

Overview

[1] On March 30, 2022, the appellant was involved in a one-car collision on the Aviation Parkway. Emergency services attended and there were indicia of intoxication. In a conversation with police, the appellant admitted to consuming alcohol. Following that admission, police made an Approved Screening Device (ASD) demand and the appellant failed. Later at the police station, the appellant provided breath samples registering 140 milligrams of alcohol in 100 milliliters of blood, being over the legal limit.

[2] The parties agreed to litigate the issue of whether there was a valid ASD demand absent the appellant’s admission of alcohol consumption. The trial judge found that there was a valid demand and this determination is the subject of this appeal.

[3] On January 4, 2024, the appellant was convicted of operating a conveyance over 80, contrary to s. 320.14(1) of the Criminal Code, R.S.C. 1985, c. C-46 by Justice Boxall of the Ontario Court of Justice after five days of trial, which included a two-day Charter voir dire and additional submissions requested by the court.

[4] The trial judge found that the roadside statement about consumption of alcohol was a compelled statement. The appellant brought a Charter challenge in respect of s. 320.31(9) of the Criminal Code.

[5] The parties agreed that the voir dire would proceed on the basis of screening out the compelled statement in order to determine if both subjective and objective grounds existed to make the ASD demand. The appellant does not contest that objective grounds to make the demand existed. The subject of this appeal is focused on the officer’s subjective grounds for the ASD demand.

[6] The appellant alleges that the trial judge erred when he held that the officer's subjective standard was too high and applied an objective view to the officer’s subjective grounds. In doing so, the trial judge erred by replacing a subjective/objective test with an objective/objective test. The appellant requests that a new trial be ordered.

[7] As the trial judge concluded that both subjective and objective grounds existed for the ASD demand, there was no need to proceed with the Charter challenge of s. 320.31(9). The trial judge found that grounds to make a roadside screening demand existed, even absent the compelled statement.

Factual Background

[8] On March 30, 2023, Constable Manion was dispatched to a one-car motor vehicle collision along the Airport Parkway in Ottawa. After the appellant was assessed by first responders, the officer asked for her driver’s licence, vehicle ownership, and insurance papers. The appellant fumbled with her wallet and the officer believed that this could be cognitive impairment from the accident. The officer asked the appellant twice for the vehicle ownership and insurance papers, but the appellant never provided them.

[9] The officer noticed that the appellant’s eyes were constrained. She had overheard the appellant tell first responders that she could not recall the accident but that she was not speeding.

[10] The officer asked the appellant if she had consumed alcohol and the appellant replied, “dinner with wine”. The officer felt this was an unusual response and made the ASD demand.

[11] The officer testified that the one-car collision could have been an accident, but also could have been related to alcohol consumption. The trial judge found that it was the combination of the collision, constricted eyes, confusion, and the admission of consumption that gave the officer the grounds for the roadside demand. The officer acknowledged in her testimony that the grounds to make the ASD demand followed the admission of consumption of “dinner with wine”.

[12] Constable Manion described her process leading up to the ASD demand as follows:

Q: And can you just tell me everything that contributed to you making that demand? What was going through your mind at the time?

A: So the collision itself was something that raised my suspicion to possible impairment. It was a clear night, single vehicle collision, but knowing that, I also know the signs of impairment can also be the signs of, like I previously stated, a head trauma. So I got my suspicion that the female had alcohol in her body from her admittance to drinking. And then with the totality of all the other circumstances, the constricted pupils, the collision, the confusion, that’s where I got my grounds to administer that test roadside.

[13] She then expanded in cross-examination:

Q. Okay. So you’re showing up and you are waiting to talk to this person who you’ve come to believe is involved in the motor vehicle collision, right?

A. Yes.

Q. And at that juncture you have no basis to suspect this is an impaired driving case. Is that fair?

A. At the time no, but involving the totality of the accident, single vehicle collision into a guardrail on a clear night.

Q. Yeah.

A. There could be suspicion that something else was involved in that collision other than just an accident on its own.

Q. Sure. But we can all agree that the grounds as it were that you end up obtaining immediately before making the breath demand is when she says she has dinner with wine, right?

A. Yes. The admittance of alcohol.

[14] The appellant failed the ASD test and was arrested. She was subsequently taken to the Ottawa Police Service (OPS) station at 474 Elgin Street, where she provided two breath samples registering 140mg/100ml each, being over the legal limit.

[15] On November 2, 2023, the trial judge ruled that the admission of alcohol consumption was a statutorily compelled statement. The result was that the statement would be excised to determine if the grounds for the ASD demand could otherwise have existed, obviating the need to consider the constitutional challenge to s. 320.31(9) of the Criminal Code. It remained to be determined whether the ASD demand was lawful, absent the compelled statement.

[16] This meant excising the evidence from the grounds for reasonable suspicion to make the ASD demand. As a result, as the trial court noted “this indicates that the officer must have an honest belief the person committed the offence, or, in this case, an honest suspicion that Ms. Smethurst had alcohol in her body” for the ASD demand to be valid.

[17] The trial judge correctly recognized that a reasonable suspicion must be subjectively held and objectively reasonable at p. 6 of his reasons:

A lawful demand pursuant to s. 320.27(1) requires a peace officer to have reasonable suspicion that the person has alcohol in their body, and that person has, in the preceding three hours, operated a conveyance. This reasonable suspicion must be subjectively held and objectively reasonable. The applicant argues that on review of the lawfulness of the ASD demand, the court should excise information obtained in violation of the Charter from both a subjective belief and objective review of that belief.

[18] There is no dispute that the trial judge properly analysed the objective component and no appeal is taken of that finding. The trial judge concluded that a combination of the relevant factors raised an objectively reasonable suspicion of alcohol in the driver’s body.

Position of the Parties

Appellant’s Position

[19] The appellant states that the trial judge erroneously held that the officer’s subjective standard was too high and imposed his objective view of the evidence onto her subjective grounds. In short, he erred by replacing a subjective/objective test with an objective/objective test. This obviated the need for determining the validity of s. 320.31(9), since the trial judge found that grounds to make a roadside screening demand existed, even absent the compelled statement.

[20] The appellant further states that the trial judge erred in determining that the existence of objective grounds for a suspicion salvaged the arresting officer’s lack of a subjectively held suspicion of alcohol consumption. The officer’s lack of a subjectively held suspicion absent the compelled statement would render the ASD demand invalid, but for the operation of s. 320.31(9) of the Criminal Code. The appellant states that had the law been applied correctly, the trial judge would have needed to consider the constitutionality of s. 320.31(9) of the Criminal Code, the necessary evidentiary threshold having been established. But for the compelled statement, and as the arresting officer lacked grounds to make an ASD demand, the impugned evidence would have been excluded, and the appellant acquitted following R. v. Soules, 2011 ONCA 429, 105 O.R. (3d) 561.

Respondent’s Position

[21] The Crown’s position is that the trial judge found as a matter of law that, absent the appellant’s admission of consumption, objective grounds existed to reasonably suspect that she had alcohol in her body. No appeal is taken from this finding of law.

[22] Furthermore, the trial judge found as a fact that, even though she continued to investigate, the demanding officer had a subjective suspicion of alcohol in the appellant’s body prior to the appellant’s admission of consumption.

[23] The Crown states that a valid demand does not require that the basis for the officer’s subjective grounds be exactly the same as the basis for the trial judge’s objective review. It is sufficient if (1) the officer believed she had the grounds; and (2) the admissible circumstances known to the officer at the time provided an objective basis for the grounds. Both of those components were met in this case.

[24] Finally, the Crown relies on the Court of Appeal for Ontario’s decision in R. v. Fyfe, 2023 ONCA 715, 432 C.C.C. (3d) 145 in support of its position that the court is not limited to the grounds for arrest adopted by arresting officers. The court is entitled to consider all of the circumstances known to the arresting officers in determining whether there were objectively reasonable and probable grounds for an arrest.

Applicable Law

[25] The application of a legal standard to the facts of the case is a question of law. Further, although the trial judge’s factual findings are entitled to deference, the trial judge’s ultimate ruling is subject to review for correctness: see R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20.

[26] Furthermore, in R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 72, the Supreme Court of Canada adopted the following statements in assessing subjective grounds for arrest:

In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 17). Subjective grounds for arrest are often established through the police officer’s testimony (see, for example, Storrey, at p. 251; Latimer, at para. 27; Tim, at para. 38). This requires the trial judge to evaluate the officer’s credibility, a finding that attracts particular deference on appeal (R. v. G.F., 2021 SCC 20, at para. 81; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at para. 4).

[27] The arresting officer’s subjective grounds for arrest must be justifiable from an objective viewpoint. The objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer: see R. v. Zacharias, 2023 SCC 30, 431 C.C.C. (3d) 421, citing R. v. Tim, 2022 SCC 12, 467 D.L.R. (4th) 389, at para. 24; R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 250-251.

[28] Absent palpable and overriding error, a trial judge’s interpretation of the evidence should not be overturned: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 262, at para. 36.

Analysis

[29] The above passage from Tim is in large part dispositive of the appeal in this matter. When assessing the subjective grounds for the ASD demand, the trial judge must, while considering the dynamics of the situation, assess these subjective grounds as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer. This individual can also be considered as “the reasonable police officer standing in the shoes of Constable Manion” as stated by the trial judge. This forms part of the analysis of the subjective grounds for appeal but does not transform the analysis into one that is objective.

[30] A proper reading of the trial judge’s reasons as a whole demonstrates that the trial judge was perfectly aware of the challenges that were presented in the voir dire where the court was asked to screen out the compelled statement provided by the appellant, being the admission of having consumed alcohol. This is not the circumstance in which the officer was placed at the time of the ASD demand. The officer was not able to halt her investigation precisely before the compelled statement and assess if she subjectively possessed reasonable suspicion before making what she deemed to be a permitted request.

[31] The trial judge was perfectly aware of the awkward circumstances of this analysis when he deemed it a “hypothetical and illusory exercise for the court to determine what that particular officer would personally have believed at the time they made the demand or arrest if they had not possessed the unlawfully obtained information.” I highlight again that the officer in the field is operating under the belief that the compellable demand is authorized by the Criminal Code.

[32] This was the correct way of approaching the subjective grounds analysis that was required as a result of screening out the information about alcohol consumption. In performing this function, the trial judge went on to assess the evidence of Constable Manion as being credible and reliable while concluding that the officer honestly held a subjective reasonable suspicion that the appellant had alcohol in her body at the time she made the ASD demand. The officer’s evidence was that her belief included the compelled statement.

[33] The trial judge then went on to assess the officer’s subjective belief in line with how a reasonable police officer in her situation would have done so. This is precisely the direction provided by the Supreme Court of Canada in Tim. It is obviously more common for this type of analysis to be done when the court must assess if an officer’s subjective belief was objectively reasonable when an officer testifies that he or she believes they had reasonable suspicion. In the present case, the officer may have wanted to go further and did not recognize that she had reached a standard of reasonable suspicion, but the trial judge still needed to assess the objective reasonableness of the information that she possessed.

[34] It is well established that an officer is not required to make a demand instantaneously upon reasonable suspicion. Common sense must dictate: see R. v. Tosun, 2021 ONSC 2895, at para. 38.

[35] The trial judge made a finding of fact that the officer entertained alcohol involvement, as a reasonable possibility, early in the investigative process. In the trial judge’s assessment, Constable Manion “engaged in the thought process that provided the possibility of alcohol, and thus reasonable suspicion” and “did subjectively reasonably suspect alcohol in Ms. Smethurst’s body, even without the compelled statements.” This was a finding of fact, and it is entitled to deference absent palpable and overriding error.

[36] Contrary to the appellant’s allegation, the trial judge did not transform the subjective belief requirement into an objective analysis. The trial judge made specific reference to the Supreme Court of Canada's decision in R. v. Caslake, [1998] 1 S.C.R. 51 and highlighted how the subjective part of the analysis forces the officer to satisfy herself that there is a valid purpose for the search incident to arrest before the search is carried out.

[37] The trial judge proceeded to assess the objective reasonableness of the officer's subjective belief based on her testimony and what she knew at the time. While the trial judge concluded that in the heat of the moment, the officer was of the view that she needed more information prior to making the ASD demand, he assessed the evidence that she possessed at the time and concluded that objectively, the officer’s evidence amounted to reasonable suspicion.

[38] The trial judge went on to find that the officer either applied an incorrect legal standard or in the moment, failed to recognize what would amount to reasonable suspicion in that she did not appreciate the information that she had on the possibility of alcohol.

[39] In assessing whether these subjective grounds existed in the officer’s mind following excision, the trial judge went on to assess the information known to the officer and the test she applied to the known information to determine if subjective grounds existed.

[40] The trial judge made a finding that even without the compelled statement, the officer subjectively reasonably suspected alcohol in the appellant’s body. That finding is supported by the evidence she had surrounding the nature of the accident, which she stated raised for her the possibility of alcohol involvement. Furthermore, the trial judge highlighted the slight confusion relating to the information provided to first responders, the fumbling with documents requested by the officer, and the appellant’s constricted eyes. The officer’s evidence demonstrates that she recognized multiple possibilities, one of which was alcohol consumption. The trial judge concluded that the officer engaged in the thought process that provided the possibility of alcohol involvement and thus reasonable suspicion.

[41] Finally, the trial judge concluded that while the officer may not have recognized or did not address her mind fully to the issue that she subjectively possessed what the law required to make a roadside demand, she did subjectively reasonably suspect alcohol in the appellant’s body even without the compelled statement. The trial judge made a finding of fact that the officer’s lack of recognition was due to the dynamic situation, the reality that the events happened quickly in the field, or that it was possibly a misunderstanding of the legal requirement of reasonable suspicion. It was open to the trial judge to look at all the circumstances and determine if the subjective view of the officer, after screening out the compelled statement, was objectively reasonable.

[42] Contrary to the appellant’s contention, this is not a case where the officer applied the wrong test such as the difference between reasonable suspicion and reasonable and probable grounds.

Conclusion

[43] For the above reasons, the appeal is dismissed.

The Honourable Justice Labrosse

Released: November 27, 2024

COURT FILE NO.: 22-A9068 DATE: 2024/11/27 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING Respondent – and – OLEEN SMETHURST Appellant REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL Labrosse J. Released: November 27, 2024