MOTOR VEHICLE REPORTS Sixth Series/SixiÈme SÉrie Recueil De Jurisprudence En Droit Des VÉhicules A` Moteur

MOTOR VEHICLE REPORTS Sixth Series/Sixième série Recueil de jurisprudence en droit des véhicules a` moteur

VOLUME 4 (Cited 4 M.V.R. (6th))

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[Indexed as: Clements (Litigation Guardian of) v. Clements] Joan Clements, by her litigation guardian, Donna Jardine (Respondent / Plaintiff) and Joseph Clements (Appellant / Defendant) British Columbia Court of Appeal Frankel, Tysoe, Garson JJ.A. Heard: May 26, 2010 Judgment: December 17, 2010 Docket: Vancouver CA036882, 2010 BCCA 581 R.A. Easton, R.W. Morasiewicz for Appellant D.G. Cowper, Q.C., D. Byl, K.V. Aimetz for Respondent Torts –––– Negligence — Causation — General principles –––– Plaintiff and defendant were wife and husband respectively — Husband had many years experience riding motorcycles — Parties were on motorcycle trip together in rain, and when trying to pass another vehicle, rear tire rapidly deflated due to puncture, motorcycle went into wobble, fell to one side and capsized — Wife suffered severe traumatic brain injury as result — Wife brought successful action against husband for damages for negligence — Trial judge found that husband was negligent in travelling at excessive speed, and in allowing motorcycle to be overloaded by more than 100 pounds — Trial judge held that causal effect of factors eluded precise scientific proof, but common sense supported conclusion that they materially contributed to wife’s injuries, and she had been exposed to unreasonable risk of injury — Husband appealed — Appeal allowed — Once trial judge found that wife had failed to prove causation under “but-for” test, action should have been dismissed — “Material-contribution” test was not test for determining factual causation, but rather provided basis for finding legal causation where there was possibility that negligent actions could have been factual cause — Upon failure of proving “but-for” test, wife was required to show that it was impossible to prove causation due to circular or dependency causation, and prove that husband breached standard of care, exposed her to unreasonable risk of injury, and that she suffered that type of injury — Case did not involve either circular or dependency causation — Given current state of knowledge, it was not possible to prove whether negligent actions of husband caused harm. Cases considered by Frankel J.A.: Barker v. Corus (UK) Plc (2006), [2006] I.C.R. 809, [2006] 2 A.C. 572, 89 B.M.L.R. 1, [2006] 3 All E.R. 785, [2006] UKHL 20, [2006] 2 W.L.R. 1027 (U.K. H.L.) — considered 2 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

Browning v. War Office (1962), [1963] 1 Q.B. 750, [1962] 3 All E.R. 1089 (Eng. C.A.) — considered Cork v. Kirby MacLean Ltd. (1952), [1952] 2 All E.R. 402 (Eng. C.A.) — considered Dahlberg v. Naydiuk (1969), 72 W.W.R. 210, 10 D.L.R. (3d) 319, 1969 CarswellMan 85 (Man. C.A.) — considered Fairchild v. Glenhaven Funeral Services Ltd. (2002), [2002] 3 All E.R. 305, [2003] 1 A.C. 32, [2002] UKHL 22, [2002] 3 W.L.R. 89, [2002] I.C.R. 798 (U.K. H.L.) — followed Fox v. Danis (2006), 2006 BCCA 324, 2006 CarswellBC 1562, 228 B.C.A.C. 164, 376 W.A.C. 164, [2006] B.C.J. No. 1437 (B.C. C.A.) — referred to Fullowka v. Royal Oak Ventures Inc. (2010), (sub nom. Fullowka v. Pinkerton’s of Canada Ltd.) [2010] 1 S.C.R. 132, [2010] 4 W.W.R. 35, (sub nom. Fullowka v. Pinkerton’s of Canada Ltd.) 398 N.R. 20, (sub nom. Fullowka v. Pinkerton’s of Canada Ltd.) 479 W.A.C. 1, (sub nom. Fullowka v. Pinkerton’s of Canada Ltd.) 474 A.R. 1, 80 C.C.E.L. (3d) 1, 315 D.L.R. (4th) 577, 2010 SCC 5, 2010 CarswellNWT 9, 2010 CarswellNWT 10, 71 C.C.L.T. (3d) 1, [2010] S.C.J. No. 5, [2010] A.C.S. No. 5 (S.C.C.) — considered Hanke v. Resurfice Corp. (2007), 69 Alta. L.R. (4th) 1, 404 A.R. 333, 394 W.A.C. 333, 2007 CarswellAlta 130, 2007 CarswellAlta 131, 2007 SCC 7, [2007] 4 W.W.R. 1, 45 C.C.L.T. (3d) 1, 278 D.L.R. (4th) 643, [2007] R.R.A. 1, 357 N.R. 175, [2007] 1 S.C.R. 333, [2007] S.C.J. No. 7 (S.C.C.) — considered Lewis v. Cook (1951), [1951] S.C.R. 830, [1952] 1 D.L.R. 1, 1951 CarswellBC 180 (S.C.C.) — considered MacDonald (Litigation Guardian of) v. Goertz (2009), 2009 BCCA 358, [2009] 12 W.W.R. 10, 96 B.C.L.R. (4th) 236, 2009 CarswellBC 2135, (sub nom. MacDonald v. Goertz) 275 B.C.A.C. 68, (sub nom. MacDonald v. Goertz) 465 W.A.C. 68, 83 M.V.R. (5th) 25 (B.C. C.A.) — considered R. v. Henry (2005), 2005 SCC 76, 2005 CarswellBC 2972, 2005 CarswellBC 2973, 260 D.L.R. (4th) 411, 342 N.R. 259, (sub nom. R. c. Henry) [2005] 3 S.C.R. 609, 49 B.C.L.R. (4th) 1, 219 B.C.A.C. 1, 361 W.A.C. 1, 376 A.R. 1, 360 W.A.C. 1, 33 C.R. (6th) 215, 202 C.C.C. (3d) 449, [2006] 4 W.W.R. 605, 136 C.R.R. (2d) 121, [2005] S.C.J. No. 76 (S.C.C.) — referred to Reilly v. British Columbia (Attorney General) (2008), 77 B.C.L.R. (4th) 230, 2008 BCCA 167, 2008 CarswellBC 768, 55 C.C.L.T. (3d) 174, [2008] 10 W.W.R. 287, 254 B.C.A.C. 161, 426 W.A.C. 161 (B.C. C.A.) — referred to Walker Estate v. York-Finch General Hospital (2001), 2001 SCC 23, 2001 CarswellOnt 1209, 2001 CarswellOnt 1210, 6 C.C.L.T. (3d) 1, 5 C.P.C. (5th) 1, 268 N.R. 68, 145 O.A.C. 302, [2001] 1 S.C.R. 647, 198 D.L.R. (4th) 193, [2001] S.C.J. No. 24 (S.C.C.) — considered Wilsher v. Essex Area Health Authority (1988), [1988] 1 All E.R. 871, [1988] 2 W.L.R. 557, [1988] A.C. 1074 (U.K. H.L.) — considered Clements (Litigation Guardian of) v. Clements Frankel J.A. 3

Statutes considered: Compensation Act, 2006, 2006, c. 29 s. 3(2) — referred to

APPEAL by husband from judgment reported at Clements (Litigation Guardian of) v. Clements (2009), 2009 CarswellBC 202, 2009 BCSC 112 (B.C. S.C.), finding him negligent in motorcycle collision.

Frankel J.A.: Introduction 1 This appeal is about causation in tort law. The issue is whether the trial judge, Mr. Justice Grauer of the Supreme Court of British Columbia, was correct in finding for the plaintiff, Joan Clements, on the issue of causation on the basis of the “material-contribution” test. The judge resorted to this test after he concluded that Mrs. Clements had failed to meet the generally applicable “but- for” test for causation. 2 Mrs. Clements was severely injured while riding as a passenger on a motorcycle driven by her husband, the defendant, Joseph Clements. As Mr. Clements pulled out to pass another vehicle, a sharp object, likely a nail, punctured the rear tire of the motorcycle causing it to rapidly deflate. This, in turn, caused the back of the motorcycle to weave from side to side. Despite his best efforts, Mr. Clements was unable to regain control of the motorcycle and it eventually capsized and flipped over. Both Mr. Clements and Mrs. Clements were thrown off the motorcycle. 3 The trial judge found Mr. Clements negligent in two respects: (a) the motorcycle was being driven at an excessive speed; and (b) the motorcycle was overloaded. However, the judge was not satisfied on a balance of probabilities that, but for the excessive speed and excessive weight, the motorcycle would not have capsized in any event. Being of the view that it was impossible to determine, through accident-reconstruction modeling, the combination of speed and weight at which Mr. Clements would have been able to regain control of the motorcycle and bring it to a safe stop, the trial judge turned to the material-contribution test discussed in Hanke v. Resurfice Corp., 2007 SCC 7, [2007] 1 S.C.R. 333 (S.C.C.). Applying that test, the judge found causation had been established and that, therefore, Mr. Clements was liable for the injuries sustained by Mrs. Clements. 4 For the reasons that follow, I would allow this appeal. As I will explain, this is not a case in which it was appropriate to find causation on the basis of the material-contribution test. 4 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

Factual Background 5 Mr. Clements is an experienced motorcycle rider (driver). Prior to the events in issue, he and Mrs. Clements had taken many motorcycle trips together. 6 The Clementses live in Prince George, British Columbia. In the summer of 2004, they planned to travel to Kananaskis, Alberta, to visit their youngest daughter and then carry on to Edmonton to attend a motorcycle owners’ event. They intended to leave early in the morning and arrive in Kananaskis by late evening. 7 On August 6, 2004, Mr. Clements inspected his motorcycle, a 1998 Harley- Davidson Road Glide touring bike, including checking the tire pressure. That inspection did not disclose any problems. Mr. Clements did not inspect the tire treads because the tires were almost new. 8 The motorcycle is fitted with two hard-case saddlebags, one mounted on each side of the rear wheel. There is also a hard-case “Tour Pak” located at the rear of the motorcycle, behind the passenger (phillion) seat. 9 Mr. Clements started work at 3:30 p.m. on August 6, 2004, returning home at 1:00 a.m. on August 7th. Both Mr. Clements and Mrs. Clements were up the next morning by 7:30 a.m. Although Mr. Clements suggested they postpone leaving due to weather conditions, Mrs. Clements insisted that they go. At about 10:30 a.m. they left Prince George, heading east on Highway 16. It was raining lightly. 10 The weather worsened, and it began to rain heavily. At Purden, British Co- lumbia, the Clementses stopped to change out of their soaking-wet clothing into full rain gear. They placed the clothing they removed into a large garbage bag that was stowed on top of the Tour Pak. 11 The weather conditions remained poor after Purden. The Clementses continued east on Highway 16, passing through five different construction zones. When they reached McBride, British Columbia, they stopped for gas and to have lunch. Mr. Clements conducted a visual inspection of the motorcycle, including the tires. Everything appeared normal. Over lunch, Mr. Clements tried unsuccessfully to persuade Mrs. Clements that they should stay overnight at a hotel in McBride. 12 While in McBride, the Clementses met another motorcyclist, Hugo, who was also heading east. They decided to travel together, at least as far as Jasper, Al- berta. It was raining lightly when the Clementses and Hugo left McBride. Hugo was in the lead. In this area, Highway 16 is one lane in each direction separated by a broken yellow line; the posted speed limit is 100 kilometres per hour. A few kilometres outside of McBride, Hugo passed a tractor-trailer. Mr. Clements did so as well, pulling back into the east-bound lane some distance behind Hugo. 13 A short time later, while on a long and straight stretch of highway, Hugo passed a BMW sports car travelling at approximately 108 kilometres per hour. Clements (Litigation Guardian of) v. Clements Frankel J.A. 5

Mr. Clements then pulled out to pass the BMW. As he crossed the yellow centre line, Mr. Clements felt his motorcycle begin to wobble. Attributing the wobble to the yellow line being slick, Mr. Clements accelerated to straighten the motorcycle out. However, the rear end of the motorcycle began to weave back and forth and the whipping motion got progressively worse. At this point, Mr. Cle- ments realized it was likely that the motorcycle would go down. He shouted to Mrs. Clements to wave her arms to warn the driver of the BMW, and began to slow down, looking for a safe place to bring the motorcycle down. The motorcycle became increasingly hard to control and the whip in the rear end caused it to weave across both the east-bound and west-bound lanes. 14 There were telephone poles and a barbed-wire fence on the right side of the highway and a ditch to the left. Mr. Clements, who was fighting hard to control the motorcycle, decided that the safest place to bring it down was on the roadway. He thought that he and Mrs. Clements would come out safely if he brought the motorcycle down on its left side while they rode high on the right side. He shouted instructions to this effect to Mrs. Clements. 15 Mr. Clements was unable to bring the motorcycle down safely. It capsized, flipped over, and skidded. Both Mr. Clements and Mrs. Clements were thrown off. Mrs. Clements suffered a severe traumatic brain injury. 16 The trial judge found that the motorcycle had been travelling at least 120 kilometres per hour when it passed the sports car and had slowed to 37 kilometres per hour when it capsized. He also found that it was carrying more than 100 pounds over the gross vehicle weight rating (“GVWR”) in the owner’s manual, i.e., the maximum allowable loaded vehicle weight.

Evidence at Trial 17 Mrs. Clements’s case consisted of the following: (a) a book containing numerous photographs taken by the police at the scene of the accident; (b) measurements taken by the police at the scene of the accident (including those of gouges made by the motorcycle as it slid down the road); (c) the motorcycle’s owner’s manual; (d) an admission regarding post-accident observations as to the condition of the motorcycle made by a professional engineer; (e) “read ins” from Mr. Clements’s examination for discovery; and (f) the testimony of the driver of the BMW. 18 Mr. Clements testified on his own behalf with respect to the events leading up to and including the accident. He said that he was not aware of the motorcycle’s GVWR. 6 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

19 In addition, Mr. Clements called the passenger in the BMW and Duane D. MacInnis, a professional engineer, as witnesses. With Mrs. Clements’s concur- rence, the trial judge found Mr. MacInnis qualified to give opinion evidence with respect to motor vehicle accident reconstruction and, in particular, motorcycle operation, control, and dynamics. Mr. MacInnis’s written report was filed as an exhibit. 20 Mr. MacInnis testified that as a result of the rear tire being punctured, the motorcycle developed what is known as a “weave instability”. He said this would have occurred without warning. Based on the information he had been given, which included the photographs and measurements taken by the police, Mr. MacInnis opined that the motorcycle was travelling at 37 kilometres per hour when it capsized. 21 Proceeding on the assumption that the motorcycle had been overloaded by 59 pounds (i.e., 5%), Mr. MacInnis expressed the following opinion in his written report under the heading “Effect of Weight on Recovery”: Any motorcycle, in the right conditions, can develop instabilities, such as wobble and weave. A heavy motorcycle with a load at the rear is inherently less stable in weave than a lightly loaded motorcycle. The weight of the fully laden motorcycle would make recovery attempts more difficult. An overweight condition of about 5% would have an unpredictable effect on the onset of instability or the ability of the driver to recover from the instability. If the extra weight caused the center of mass to be further forward or upwards, or was contained in the mass of the rider and passenger, then the extra weight could improve the stability. If the mass caused the center of mass to be further rearward or downwards, and was contained in the fixed mass objects, then the extra weight would make the motorcycle less stable. In either case, the 5% difference would have an unpredictable effect on stability. Because we know very little about the dynamic properties of the actual motorcycle, and less about the load distribution, it is impossible to model the behaviour of the loaded motorcycle in response to the flat tire instability. The extra weight could improve or decrease stability, depending on how the mass was distributed. There is no technically satisfactory method to predict the effect of the extra weight. 22 Under the heading “Did Speed Contribute to the Control Loss and Recovery Failure”, Mr. MacInnis expressed the following written opinion in response to a question as to whether it would make a difference if the motorcycle had been travelling at 100 kilometres per hour as opposed to between 110 and 115 kilometres per hour: There is some low speed at which there would be little or no instability of the motorcycle resulting from a flat rear tire. This speed cannot be predicted without tests, but would likely be very low, possibly less than 15 km/h. Be- low 15 km/h, a motorcycle steers like a low speed bicycle. Based on the [work of Professor Vittore Cossalter, a recognized expert on motorcycle dynamics], the instability due to flat rear tire alone increases with increasing Clements (Litigation Guardian of) v. Clements Frankel J.A. 7

speed. A speed of 100 km/h would be hazardous with a flat rear tire, whether the motorcycle was loaded or not. Would the capsize have occurred at a lower speed? This is impossible to predict without tests, particularly as the potential for control loss or recovery is so dependent on operator actions. What one operator may be able to control, another may not. The operator may complicate matters by his attempts to control the instability. 23 In cross-examination, Mr. MacInnis disagreed with a suggestion that the motorcycle could have been brought to a safe stop had it been travelling at 80 or 90 kilometres per hour when the puncture occurred. He said that had the motorcycle been travelling at 90 or 100 kilometres per hour, its capsize speed would still have been 37 kilometres per hour. Mr. MacInnis further stated that although there is a speed of travel above 37 kilometres per hour at which the puncture would not have resulted in a uncontrollable weave instability, it was impossible to determine that speed.

Trial Judge’s Reasons (2009 BCSC 112 (B.C. S.C.)) 24 The trial judge found that even before the Clementses changed out of their soaked clothing, the motorcycle was carrying more than 100 pounds over its GVWR. He also found that the motorcycle’s instability in the event of a weave caused by a rear-tire deflation would have increased since much of the excess weight was carried aft (the passenger and the luggage) and high-centered (the garbage bag stowed on top of the Tour Pak). The judge accepted Mr. Clements’s evidence that, notwithstanding the excess weight, he did not feel that that the motorcycle was unbalanced. 25 The trial judge found that the rear tire of the motorcycle had picked up a sharp object earlier in the day, and that the object had punctured the tire as Mr. Clements pulled out and accelerated to more than 120 kilometres per hour to pass the BMW. The puncture caused the rear tire to rapidly deflate, producing the weave instability. 26 In his review of the evidence, the trial judge referred to the fact that Mr. MacInnis had been unable to opine with any certainty how speed and excess load had affected Mr. Clements’s ability to deal safely with the weave instability: [45] Mr. MacInnis was candid in noting that it is not always possible to hang a number on things, and that in this case, he could not say at what specific speed a tire blowout could be handled safely, or what specific effect the weight carried on the motorcycle would have on stability. He estimated the excess weight to have been in the range of 5%, whereas I have found it to be approximately double that. He estimated the motorcycle’s speed to be 110- 115 km/h, whereas I have found it probable that the speed was 120 km/h or more. 8 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

27 The trial judge found Mr. Clements to have been negligent in two ways: driving at an excessive rate of speed in poor weather conditions (which Mr. Cle- ments conceded), and failing to ensure that the motorcycle was not overloaded (carrying in excess of its GVWR). 28 The critical issue for the trial judge was causation, i.e., whether Mr. Cle- ments’s negligent acts had caused the injuries sustained by Mrs. Clements. Mr. Clements’s position was that Mrs. Clements had not met the onus of establishing she would not have been injured but for his negligent acts. He submitted the evidence showed that he would have been unable to bring the motorcycle to a safe stop even if he had been travelling slower with a lighter load. Mrs. Cle- ments’s position was that she had established she would not have been injured but for Mr. Clements’s negligent acts. In the alternative, she submitted that if she could not satisfy the but-for test, then there were “special circumstances” that warranted causation being decided in her favour on the basis of the material-contribution test. 29 The trial judge began his analysis of the facts by finding that the weave instability was attributable solely to the rapid deflation of the rear tire and was not causally connected to the motorcycle’s speed or load. He then considered whether but for excessive speed and overloading, Mr. Clements would have been able to recover safely from the weave instability. In this regard, the judge asked himself the following question (at para. 59): Would [Mr. Clements] have been able to recover from the weave instability, and thereby avoid [Mrs. Clements’s] injuries, had he not been traveling at an excessive speed well above what the circumstances dictated, on an overloaded motorcycle? 30 The evidence did not provide the answer to that question. Although the trial judge found that “increasing speed and increasing load will each result in increasing instability” he also found that it was not possible to say whether excessive speed and overloading had made a difference in this case. In this regard, the judge said: [63] Where does that leave us? Does the evidence support the conclusion that [Mr. Clements’s] inability to recover from the weave instability, leading to [Mrs. Clements’s] injuries, would not have occurred “but for” a number of factors, including the two for which [Mr. Clements] is responsible? The only conclusion that can be drawn from Mr. MacInnis’s expert evidence is that such a correlation is incapable of proof. 31 Having found that causation could not be proven under the but-for test, the trial judge held that Mrs. Clements was entitled to rely on the material-contribution test and that she had established causation under that test. After observing that, as a matter of common sense, there is a relationship between excessive Clements (Litigation Guardian of) v. Clements Frankel J.A. 9

speed / weight and the ability to recover safely from a weave instability, the trial judge said this: [65] In these circumstances, I find that this case gives rise to the “special circumstances” discussed by McLachlin C.J.C. in Resurfice as justifying the application of the “material contribution” test. I have found that [Mr. Cle- ments] breached his duty of care to [Mrs. Clements] as his passenger. His breaches gave rise to an unreasonable risk of injury from highway accident due to instability, which is the form of injury suffered by [Mrs. Clements]. [66] Notwithstanding that the science of motorcycle dynamics tells us that the nature of those breaches, excess speed and excess load, will increase the weave instability of the motorcycle in the event of a flat tire, which is what occurred, [Mrs. Clements] through no fault of her own is unable to prove that “but for” [Mr. Clements’s] breaches, she would not have been injured. This is because after the fact, it is not possible through accident reconstruction modeling to determine at what combination of lower speed and lesser weight recovery from the weave instability would have been practicable. At the same time, the evidence did not establish that [Mrs. Clements] would have suffered harm in the absence of [Mr. Clements’s] breaches. [67] I conclude on all of the evidence that [Mr. Clements’s] breaches of duty materially contributed to the injuries suffered by [Mrs. Clements] as a result of the accident. In short, her injuries were the result of her husband driving too fast with too heavy a load when his rear tire unexpectedly deflated. Cau- sation is therefore established within the parameters discussed by the Su- preme Court of Canada in Athey and Resurfice. [Mr. Clements] is accordingly liable. 32 The trial judge went on to find that Mrs. Clements had not been contribu- torily negligent. As a result, he found Mr. Clements 100% liable for the accident.

Analysis 33 In Part 2 of his factum, Mr. Clements sets out but one ground of appeal: “The trial judge erred in stating and applying the laws of causation”. However, he contends in both his written and oral submissions that the trial judge not only erred in law, but also erred in fact in relation to Mr. MacInnis’s evidence. I will discuss each alleged error in turn. However, as will become evident, I do not consider that an in-depth discussion of Mr. Clements’s arguments with respect to Mr. MacInnis’s evidence is necessary to the resolution of this appeal and, for that reason, I will only touch on them briefly.

Misapprehension of Mr. MacInnis’s Evidence 34 Mr. Clements contends that the trial judge erred in failing to positively find, on the basis of Mr. MacInnis’s evidence, that excessive speed and overloading played no role in his inability to bring the motorcycle to a safe stop. In short, Mr. Clements says that a full and proper consideration of that evidence can lead 10 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

to only one factual conclusion: the unexpected puncture of the rear tire would have caused the motorcycle to capsize even if it had been travelling at a safe speed and been loaded within its GVWR. Mr. Clements says that the trial judge misapprehended Mr. MacInnis’s evidence, particularly as it relates to how the motorcycle’s stability would have been affected by the placement of the excess weight, i.e., high / low, forward / aft. He also relies on the fact that Mrs. Cle- ments did not tender any expert evidence that contradicted that of Mr. MacInnis. 35 In their submissions to this Court, both parties spent some time discussing the details of Mr. MacInnis’s written report and oral testimony. For her part, Mrs. Clements submitted that the trial judge did not misapprehend that evidence, and committed no palpable and overriding error in assessing it. 36 The trial judge was clearly not obliged to accept Mr. MacInnis’s evidence. It is axiomatic that a trial judge is entitled to accept all, none, or part of a witness’s evidence. That a witness has been qualified as an expert does not change this: Fox v. Danis, 2006 BCCA 324, 228 B.C.A.C. 164 (B.C. C.A.) at para. 26. 37 Having reviewed the trial record, my initial impression is that the trial judge may well have misapprehended aspects of Mr. MacInnis’s evidence. However, I need not reach a definitive conclusion in this regard because, as I will now discuss, the facts the judge did find — which Mrs. Clements supports — do not permit the material-contribution test to be used to find Mr. Clements liable.

The Material-Contribution Test 38 The trial judge found that even though Mrs. Clements had not established causation under the but-for test, she had done so under the material-contribution test because: (a) the science of motorcycle dynamics is such that, through no fault of her own, it was not possible for Mrs. Clements to prove that but for Mr. Clements’s breaches she would not have been injured; (b) Mr. Clements had breached his duty of care to her; and (b) his breaches increased the risk that Mrs. Clements would be injured if the motorcycle became unstable. 39 In my view, once the trial judge found that Mrs. Clements had failed to prove causation under the but-for test, he should have dismissed her action. This is not a case that permits causation being decided on another basis. 40 Causation is a fundamental element of liability for negligence. A person who suffers harm is entitled to compensation from those who caused that harm. The but-for test is the method by which factual causation is established. The way the test works is described in Linden and Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: LexisNexis Butterworths, 2006) at 116: [I]f the accident would not have occurred but for the defendant’s negligence, this conduct is a cause of the injury. Put another way, if the accident would Clements (Litigation Guardian of) v. Clements Frankel J.A. 11

have occurred just the same, whether or not the defendant acted, this conduct is not a cause of the loss. Thus the act of the defendant must have made a difference. If the conduct had nothing to do with the loss, the actor escapes liability. [Emphasis added.] 41 In Cork v. Kirby MacLean Ltd., [1952] 2 All E.R. 402 (Eng. C.A.) at 407, Lord Denning (as he then was) stated the test as follows: Subject to the question of remoteness, causation is, I think, a question of fact. If you can say that the damage would not have happened but for a particular fault, then that fault is in fact a cause of the damage; but if you can say that the damage would have happened just the same, fault or no fault, then the fault is not a cause of the damage. It often happens that each of the parties at fault can truly say to the other: “But for your fault, it would not have happened.” In such a case both faults are in fact causes of the damage. [Emphasis added.] See also: Barker v. Corus (UK) Plc, [2006] UKHL 20, [2006] 2 A.C. 572 (U.K. H.L.) at para. 1. 42 In Resurfice Corp., the Supreme Court of Canada re-affirmed the but-for test as the primary (i.e., default) test for determining causation. In that case, Chief Justice McLachlin, in stating the general principles that apply to the determination of causation, said: 21 First, the basic test for determining causation remains the “but for” test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute. 22 This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para. 14, per Major J., “[t]he general, but not conclusive, test for causation is the ‘but for’ test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant”. Similarly, as I noted in Blackwater v. Plint, at para. 78, “[t]he rules of causation consider generally whether ‘but for’ the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities.” 23 The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’s conduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327, per Sopinka J. [Emphasis added.] 43 The Chief Justice went on to state that in “special circumstances” it will be appropriate to depart from the but-for test and make the causation determination 12 MOTOR VEHICLE REPORTS 4 M.V.R. (6th) under what she refers to as “a material contribution test”. As this portion of her reasons is central to the resolution of this appeal, I set them out in full: 24 However, in special circumstances, the law has recognized exceptions to the basic “but for” test, and applied a “material contribution” test. Broadly speaking, the cases in which the “material contribution” test is properly applied involve two requirements. 25 First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test. The impossibility must be due to factors that are outside of the plaintiff’s control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff’s injury must fall within the ambit of the risk created by the defendant’s breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the “but for” test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a “but for” approach. 26 These two requirements are helpful in defining the situations in which an exception to the “but for” approach ought to be permitted. Without dealing exhaustively with the jurisprudence, a few examples may assist in demonstrating the twin principles just asserted. 27 One situation requiring an exception to the “but for” test is the situation where it is impossible to say which of two tortious sources caused the injury, as where two shots are carelessly fired at the victim, but it is impossible to say which shot injured him: Cook v. Lewis [1951] S.C.R. 830. Provided that it is established that each of the defendants carelessly or negligently created an unreasonable risk of that type of injury that the plaintiff in fact suffered (i.e. carelessly or negligently fired a shot that could have caused the injury), a material contribution test may be appropriately applied. 28 A second situation requiring an exception to the “but for” test may be where it is impossible to prove what a particular person in the causal chain would have done had the defendant not committed a negligent act or omission, thus breaking the “but for” chain of causation. For example, although there was no need to rely on the “material contribution” test in Walker Estate v. York Finch General Hospital, this Court indicated that it could be used where it was impossible to prove that the donor whose tainted blood infected the plaintiff would not have given blood if the defendant had properly warned him against donating blood. Once again, the impossibility of establishing causation and the element of injury-related risk created by the defendant are central. See also: Fullowka v. Royal Oak Ventures Inc., 2010 SCC 5, [2010] 1 S.C.R. 132 (S.C.C.) at para 93: “[Resurfice Corp.] clarified the law of causation, holding that absent special circumstances, the plaintiff must establish on a balance of Clements (Litigation Guardian of) v. Clements Frankel J.A. 13

probabilities that the injury would not have occurred but for the negligence of the defendant”. 44 Mrs. Clements submits that her case involves “special circumstances” as contemplated in Resurfice Corp. because it meets the two criteria set out in paragraph 25 of that decision. First, she says that due to factors outside of her control — the limits of the science of motorcycle dynamics — it is impossible to determine the combination of lower speed and lower weight at which the motorcycle could have been brought to a safe stop. Second, Mrs. Clements says that Mr. Clements’s breaches of the duty of care he owed to her — driving an overloaded motorcycle at excessive speed — exposed her to an unreasonable risk of the very types of injuries she suffered. Because of these factors, Mrs. Clements submits that it would offend basic notions of fairness and justice not to find Mr. Clements liable. 45 It is important to keep in mind that the material-contribution test discussed in Resurfice Corp. is not a test for determining factual causation. It does not provide a framework for determining whether a plaintiff has proven on a balance of probabilities that a defendant’s negligence has in fact caused harm. Rather, it provides a basis for finding legal causation when there is a possibility that the defendant’s negligent actions could have been a factual cause. 46 In MacDonald (Litigation Guardian of) v. Goertz, 2009 BCCA 358, 96 B.C.L.R. (4th) 236 (B.C. C.A.), Mr. Justice K. Smith discussed the fact that the use of the material-contribution test leads to the finding of a legal, as opposed to a factual, connection between a defendant’s negligence and the harm suffered by a plaintiff: [17] In the passages from Resurfice Corp. v. Hanke, to which Mr. Ahmad refers, Chief Justice McLachlin, writing for the Court, used the phrase in connection with cases in which it is impossible for the plaintiff to prove a causal link between the breach of duty and the harm, such as where the ex- plication of the causal link is beyond the limits of current scientific knowledge (Fairchild v. Glenhaven Funeral Services Ltd., [2002] UKHL 22, [2002] 3 All E.R. 305; Barker v. Corus (UK) Plc., [2006] UKHL 20, [2006] 2 A.C. 572 — cases in which the defendants’ breach of duty materially increased the risk of harm but it was not possible to prove a causal connection to the harm itself); where it is impossible to prove which of two simultane- ous acts by two negligent actors caused the loss (Cook v. Lewis, [1951] S.C.R. 830, [1952] 1 D.L.R. 1); and where it may be impossible to prove what a third party, whose conduct was a “but for” cause of the loss, would have done absent the defendant’s careless conduct (Walker Estate v. York Finch General Hospital, 2001 SCC 23, [2001] 1 S.C.R. 647, 198 D.L.R. (4th) 193). As this Court noted in Sam v. Wilson, 2007 BCCA 622, 78 B.C.L.R. (4th) 199 at para. 109, 249 B.C.A.C. 228, this use of “material contribution” does not signify a test of causation at all; rather it is a policy-driven rule of law designed to permit plaintiffs to recover in such cases despite their failure to prove causation. In such cases, plaintiffs are 14 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

permitted to “jump the evidentiary gap”: see “Lords a’leaping evidentiary gaps”, (2002) Torts Law Journal 276, and “Cause-in-Fact and the Scope of Liability for Consequences”, (2003) 119 L.Q.R. 388, both by Professor Jane Stapleton. That is because to deny liability “would offend basic notions of fairness and justice”: Resurfice Corp. v. Hanke, para. 25. [Underlining in original; bold added.] 47 Although the discussion of the material-contribution test in Resurfice Corp. is obiter dicta — the appeal was allowed on the basis that the Court of Appeal should not have interfered with the finding of the trial judge that the manner in which the plaintiff was injured was not reasonably foreseeable — the Supreme Court of Canada clearly intended to provide guidance with respect to the issue of causation. Accordingly, what it said must be accepted as authoritative in that regard: Reilly v. British Columbia (Attorney General), 2008 BCCA 167, 77 B.C.L.R. (4th) 230 (B.C. C.A.) at paras. 69, 70, applying R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 (S.C.C.). 48 However, I do not read Resurfice Corp. as supporting resort to the material- contribution test whenever a defendant’s negligence has materially increased a plaintiff’s risk of injury and it is impossible for the plaintiff to prove that that negligence was a factual cause of the injury. To do so would substantially alter the existing law and would have the effect of displacing but-for as the primary test for determining causation. It is only in exceptional circumstances that resort to the material-contribution test will, as a matter of policy, be appropriate. 49 It is important to keep in mind that in Resurfice Corp., the Court was not purporting to change the law but, rather, was reaffirming existing principles. This is evinced by the fact that McLachlin C.J. referred to two of the Court’s previous decisions as examples of when the material-contribution test could properly be used to find causation. 50 The first of those cases is Lewis v. Cook, [1951] S.C.R. 830 (S.C.C.), which involved a hunter, Mr. Cook, who was injured as a result of being shot by one of two other hunters, Mr. Lewis and Mr. Aikenhead. Mr. Cook’s action for damages against both Mr. Cook and Mr. Aikenhead was dismissed by a jury. That verdict was set aside on appeal as being perverse and a new trial was ordered. In confirming that order, the Supreme Court of Canada discussed how the law should be applied if the jury at the new trial found that both Mr. Cook and Mr. Aikenhead had negligently fired in Mr. Lewis’s direction but could not determine, on a balance of probabilities, whose gun had caused the injuries. In that event, the but-for test would result in neither Mr. Cook nor Mr. Aikenhead being held liable. 51 Being of the view that it would not be just to leave Mr. Lewis without redress, Mr. Justice Cartwright (as he then was) opined that, in the circumstances, Clements (Litigation Guardian of) v. Clements Frankel J.A. 15

both Mr. Cook and Mr. Aikenhead should be held liable. In this regard he stated, in part (at 842): The judgment in Summers v. Tice [(1948), 5 A.L.R. (2d) 91 (Calif. S.C.)] reads in part as follows: ... When we consider the relative position of the parties and the results that would flow if plaintiff was required to pin the injury on one of the defendants only, a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. They are both wrongdoers — both negligent toward plaintiff. They brought about a situation where the negligence of one of them injured the plaintiff, hence, it should rest with them each to absolve himself if he can. The injured party has been placed by defendants in the unfair position of pointing to which defendant caused the harm. If one can escape the other may also and plaintiff is remediless. Ordinarily defendants are in a far better position to offer evidence to determine which one caused the injury. This reasoning has recently found favour in this Court. I do not think it necessary to decide whether all that was said in Summers v. Tice should be accepted as stating the law of British Columbia, but I am of opinion, for the reasons given in that case, that if under the circumstances of the case at bar the jury, having decided that the plaintiff was shot by either Cook or Akenhead, found themselves unable to decide which of the two shot him because in their opinion both shot negligently in his direction, both defendants should have been found liable. I think that the learned trial judge should have sent the jury back to consider the matter further with a direction to the above effect, in view of their answer to question 3 [i.e., “No” to the question, “If the Plaintiff was shot by one of the Defendants are you able to decide which one?”]. [Emphasis added.] 52 Mr. Justice Dickson (as he then was) later described Cook as a case in which liability could be brought home to two negligent defendants who, by their respective actions, had “removed the opportunity of the plaintiff to show which one of them in fact injured him”: Dahlberg v. Naydiuk (1969), 10 D.L.R. (3d) 319 (Man. C.A.), at 326. 53 The other case cited by the Chief Justice as an example of when it would be appropriate to use the material-contribution test is Walker Estate v. York-Finch General Hospital, 2001 SCC 23, [2001] 1 S.C.R. 647 (S.C.C.). In that case, Mr. Walker contracted HIV from blood supplied by the Canadian Red Cross Society (the “CRCS”). The issue was whether the CRCS should be held liable because of its negligence in screening donors. In discussing the issue of causation, Mr. Justice Major expressed the view that in situations where it is impossible to prove what an infected donor would have done had he or she been properly warned, the but-for test would unfairly result in the plaintiff being unable to 16 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

prove factual causation. In such circumstances the material-contribution test can be used. As Major J. stated: 87 With respect to negligent donor screening, the plaintiffs must establish the duty of care and the standard of care owed to them by the CRCS. The plaintiffs must also prove that the CRCS caused their injuries. The unique difficulties in proving causation make this area of negligence atypical. The general test for causation in cases where a single cause can be attributed to a harm is the “but-for” test. However, the but-for test is unworkable in some situations, particularly where multiple independent causes may bring about a single harm. 88 In cases of negligent donor screening, it may be difficult or impossible to prove hypothetically what the donor would have done had he or she been properly screened by the CRCS. The added element of donor conduct in these cases means that the but-for test could operate unfairly, highlighting the possibility of leaving legitimate plaintiffs uncompensated. Thus, the question in cases of negligent donor screening should not be whether the CRCS’s conduct was a necessary condition for the plaintiffs’ injuries using the “but-for” test, but whether that conduct was a sufficient condition. The proper test for causation in cases of negligent donor screening is whether the defendant’s negligence “materially contributed” to the occurrence of the injury. In the present case, it is clear that it did. “A contributing factor is material if it falls outside the de minimis range” (see Athey v. Leonati, [1996] 3 S.C.R. 458, at para. 15). As such, the plaintiff retains the burden of proving that the failure of the CRCS to screen donors with tainted blood materially contributed to Walker contracting HIV from the tainted blood. [Emphasis added.] 54 The question of when it will be appropriate to resort to the material-contribution test discussed in Resurfice Corp. has been the subject of some appellate consideration and considerable academic writing. In my view, the answer to this question is fully and articulately set out in a paper by Professor Erik S. Knutsen entitled “Clarifying Causation in Tort”, found at (2010), 33 Dal. L.J. 153. Pro- fessor Knutsen’s view, with which I agree, is that a judge can resort to the material-contribution test in only two situations: what he refers to as ones involving circular causation and dependency causation. In all other cases, causation must be determined on the but-for test. 55 Cook is an example of circular causation. The but-for test makes it impossible to determine which of two negligent parties caused the damage suffered by the plaintiff: as it is just as likely to have been A, it is impossible to show, on a balance of probabilities that it was B, and vice-versa. As Professor Knutsen said (at 164): The Supreme Court’s words in Hanke are likely trying to express that, in instances where there is complete circular logic which makes the “but for” test unanswerable, like in cases where it is impossible to prove which one of two or more tortious sources caused the plaintiff’s injury, one can reach for Clements (Litigation Guardian of) v. Clements Frankel J.A. 17

the material contribution test to find causation. It is a question not of “how much” but of “which one.” The Supreme Court is not saying, however, that the material contribution test applies to any case where there is more than one tortfeasor. That was the mistake previous courts kept committing. Rare is the case where a fact scenario with multiple tortfeasors requires the material contribution test. McLachlin C.J.C.’s example of Cook v. Lewis is likely trying to communicate that, in instances of “circular causation,” where the “but for” test produces an endless circular answer that is unsatisfactory because one potential causal source is certainly a cause of harm, one can use the material contribution test as long as both pre-conditions are met. [Emphasis added.] 56 Walker Estate is an example of dependency causation, where proof of factual causation depends on establishing what one party would have done if another party had not acted in a negligent manner, something which may be impossible to prove. In this regard, Professor Knutsen states (at 164): The second example in Hanke where the material contribution test is suitable to use involves a chain of multi-party actions, each depending on the other, in a situation of “dependency causation.” The “but for” test may be impossible to prove when one must determine what a party would have done had the defendant not been negligent, and thus how that party’s decision affects the plaintiff’s resulting injury. The example the Court gives is Walker v. York Finch Hospital, a case where it may have been impossible to prove “but for” causation. In that case, it may have been impossible to prove that, but for the negligent screening of blood donors by the defendant blood collection service, a person with HIV-infected blood may not have donated the infected blood which eventually injured the plaintiff. The causal link between the at- fault defendant and the injured plaintiff is thus mediated by the action of a third party. This “dependency causation” necessarily relies on evidence of causation beyond the relationship between the at-fault defendant and the injured plaintiff, and is potentially very difficult to obtain. [Footnotes omitted, emphasis added.] 57 There are two further passages from Professor Knutsen’s paper to which I wish to refer, as I consider them to be particularly important regarding the limited use of the material-contribution test. The first is a reminder that in the vast majority of cases, the but-for test yields logical and reasonable answers, regardless of the result. In other words, there is generally nothing unfair about the fact that a plaintiff is unable to prove that the negligence of a particular defendant was a cause of his or her injuries. This is because, as Lord Diplock stated in Browning v. War Office, [1962] 3 All E.R. 1089 (Eng. C.A.), at 1094: A person who acts without reasonable care does no wrong in law; he commits no tort. He only does wrong, he only commits a tort, if his lack of care causes damage to the plaintiff. 18 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

58 In explaining why the material-contribution test should be reserved for rare cases involving logical impossibilities, Professor Knutsen said (at 167): “But for” works when there is enough evidence to prove, on a balance of probabilities, that the defendant’s breach of the standard of care was a cause of the plaintiff’s injury. The reverse is also true. “But for” works when there is insufficient evidence to prove, on a balance of probabilities, that the defendant’s breach of the standard of care was not a cause of the plaintiff’s injury. The logical answer, whether in favour of the plaintiff or defendant, is usually the result. The material contribution test is not a solution for evidentiary in- sufficiency. Plaintiffs must still prove causation on a balance of probabilities. The only instances “but for” does not work are in instances where there is insufficient evidence to prove “but for” causation and there is either circular or dependency causation. [Emphasis in original.] 59 Perhaps of more importance in the context of the case at bar is Professor Knutsen’s discussion of the impossibility requirement and the reference in Resurfice Corp. to the “current limits of scientific knowledge”. As he points out, our knowledge of science is ever-increasing. What is provable today may not have been provable last year; what cannot be proven today may be provable next year. That forensic science is not always able to provide an answer to a causation question is not a reason for doing away with causation as an essential element of a plaintiff’s case. In this regard, Professor Knutsen said this (at 171): “Current limits of scientific knowledge” should not be read out of context to mean that the material contribution test is appropriate in any case where the science involved is difficult, complex, or “just not there yet.” Frankly, that is just about any case where personal injury is involved. The science of medicine as it relates to the interaction of disease, medication, and trauma on the body is more of an art than a science. It is constantly evolving. Indeed, one might argue it will always have current limits that soon get eclipsed by future, unknowable limits. But the Supreme Court’s statement is nothing more than an example of one reason why there may be a logical impossibility in proving causation with the “but for” test. It is an explanatory reason, so to speak, for the existence of circular causation. It is not a reason to turn to the material contribution test. It is certainly not a gatekeeper for the material contribution test. The gatekeeping function is met by the two pre-conditions which must be satisfied in instances of circular or dependency causation. 60 The approach taken by the former House of Lords in recognizing that there will be exceptional circumstances that justify, as a matter of policy, departing from the but-for test is instructive. In Fairchild v. Glenhaven Funeral Services Ltd., [2002] UKHL 22, [2003] 1 A.C. 32 (U.K. H.L.), the House dealt with the case of an employee who had contracted mesothelioma as a result of being negligently exposed to asbestos dust at different times while working for different employers. It was impossible for the employee to prove which employer’s negligence was the but-for cause of his condition since that disease can be caused by Clements (Litigation Guardian of) v. Clements Frankel J.A. 19

the inhalation of a single asbestos fibre. Given that all of the employers had exposed the employee to the same risk, the House held that all should be liable. However, the question of how liability should be apportioned was not decided until Barker. In that case, not only had the employers been negligent in exposing an employee to asbestos dust, but the employee himself had also been negligent in that regard. The House concluded that liability should be several, not joint and several, and proportionate to the exposure. As an aside, it should be mentioned that following this decision, Parliament statutorily imposed joint and several liability in mesothelioma cases: Compensation Act 2006 (c. 29), s. 3(2). 61 Fairchild and Barker are cases of circular causation. This is evinced by the following statement by Lord Hoffmann in Barker (at para. 17): The purpose of the Fairchild exception is to provide a cause of action against a defendant who has materially increased the risk that the claimant will suffer damage and may have caused that damage, but cannot be proved to have done so because it is impossible to show, on a balance of probability, that some other exposure to the same risk may not have caused it instead. 62 Also pertinent is Lord Hoffmann’s discussion of the distinction between the situation in Fairchild and that in Wilsher v. Essex Area Health Authority, [1988] A.C. 1074 (U.K. H.L.). In Wilsher, a premature baby who had been subjected to a number of medical procedures developed retolental fibroplasia (“RLF”), an eye condition that results in blindness. One of those procedures involved the negligent administration of an excessive amount of oxygen that increased the likelihood of the baby developing RLF and may well have caused it. However, there were a number of other possible causes of the RLF and it was scientifically impossible to determine whether excess oxygen caused or contributed to the baby becoming blind. In those circumstances, the House held that the health authority was not liable. In concluding his discussion of Wilsher in Barker, Lord Hoffmann said: 24 If the distinction between Fairchild and Wilsher does not lie in the fact that in the latter case a number of very different causative agents were in play, I think it would be hard to tell from my Fairchild opinion what I thought the distinction was. In my opinion it is an essential condition for the operation of the exception that the impossibility of proving that the defendant caused the damage arises out of the existence of another potential causative agent which operated in the same way. It may have been different in some causally irrelevant respect, as in Lord Rodger’s example of the different kinds of dust, but the mechanism by which it caused the damage, whatever it was, must have been the same. So, for example, I do not think that the exception applies when the claimant suffers lung cancer which may have been caused by exposure to asbestos or some other carcinogenic matter but may also have been caused by smoking and it cannot be proved which is more likely to have been the causative agent. 63 In summary, having regard to the over-arching policy that the material-contribution test is available only when a denial of liability under the but-for test 20 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

would offend basic notions of fairness and justice, I agree with the following statement made by Professor Knutsen in setting out his conclusions (at 187): g) The “but for” test rarely fails, and currently only in situations involving circular causation and dependency causation: 1) Circular causation involves factual situations where it is impossible for the plaintiff to prove which one of two or more possible tortious causes are the cause of the plaintiff’s harm; 2) Dependency causation involves factual situations where it is impossible for the plaintiff to prove if a third party would have taken some action in the face of a defendant’s negligence and such third party’s action would have facilitated harm to the plaintiff; h) If the “but for” test fails, the plaintiff must meet two pre-conditions to utilize the material contribution test for causation: 1) It must be impossible for the plaintiff to prove causation (either due to circular or dependency causation); and, 2) The plaintiff must be able to prove that the defendant breached the standard of care, exposed the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that type of injury. 64 What does this mean for the present case? It means that once the trial judge determined that Mrs. Clements had failed to establish that the motorcycle would not have capsized but for Mr. Clements’s negligence, he should have found that causation had not been proven. This is not a case involving either circular or dependency causation. Rather, it is a case like many others in which, given the current state of knowledge, it is not possible to prove whether the negligent actions of a defendant caused harm. I do not consider it either unfair or unjust, or, to use the words of Professor Knutsen (at 172), “just plain wrong” not to fix Mr. Clements with liability when Mrs. Clements has been unable to show factually that his negligence was a cause of her damages.

Conclusion 65 I would allow this appeal, set aside the trial judge’s formal order dated Feb- ruary 4, 2009 (entered October 6, 2009), and dismiss the action.

Tysoe J.A.:

I agree:

Garson J.A.:

I agree: Appeal allowed. R. v. Ruizfuentes 21

[Indexed as: R. v. Ruizfuentes] HER MAJESTY THE QUEEN (Respondent) and HUGO SERGIO RUIZFUENTES (Accused / Appellant) Manitoba Court of Appeal Michel A. Monnin, Richard J. Chartier, Alan D. MacInnes JJ.A. Heard: June 18, 2010 Judgment: October 14, 2010 Docket: AR 09-30-07243, 2010 MBCA 90 M.P. Cook for Appellant C.A. Vanderhooft for Respondent Criminal law –––– Offences — Impaired driving causing death — Sentencing –––– Accused drove through red light and hit another vehicle killing driver — Accused pled guilty to impaired driving causing death, contrary to s. 255(3) of Criminal Code — Ac- cused had dated and unrelated convictions for possession of marihuana breaching condition of discharge — Accused also had 13 infractions under Highway Traffic Act spanning 15-year period — Accused was sentenced to six years’ imprisonment and given 15- year driving prohibition — Accused appealed sentence — Sentence varied — Term of imprisonment, prior to any pre-sentence custody credit, was varied from six to four and one-half years and driving prohibition from 15 to seven and one-half years — Resultant sentence, after deducting 18-month pre-sentence custody credit, was three-year term of imprisonment and seven and one-half year driving prohibition — Sentence was demonstrably unfit — Sentencing judge erred in principle by treating accused as “anything but a first offender” because of Highway Traffic Act record, leading to imposition of sentence usually reserved for second offenders — Appropriate range of sentence was two to five years — Accused registered at high end given accused’s moral blameworthiness — Ac- cused was speeding and drove through three intersections against red lights, was continuing his prior manner of driving, and demonstrated unwillingness to correct offending conduct. Cases considered by Richard J. Chartier J.A.: R. v. Bear (2008), 2008 CarswellSask 876, 2008 SKCA 172, 320 Sask. R. 12, 444 W.A.C. 12, 70 M.V.R. (5th) 163, [2008] S.J. No. 815 (Sask. C.A.) — considered R. v. Bone (February 22, 2005), Doc. CR04-01-25535, [2005] M.J. No. 75 (Man. Q.B.) — considered R. v. Capuska (2005), 21 M.V.R. (5th) 57, 2005 CarswellMan 216, 194 Man. R. (2d) 113, [2005] M.J. No. 214 (Man. Prov. Ct.) — considered R. v. Ceraldi (1990), 1990 CarswellBC 1347, [1990] B.C.J. No. 2741 (B.C. C.A.) — referred to R. v. Dalkeith-Mackie (2003), 44 M.V.R. (4th) 9, 180 Man. R. (2d) 175, 310 W.A.C. 175, 2003 CarswellMan 498, 2003 MBCA 144, [2003] M.J. No. 435 (Man. C.A.) — considered 22 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

R. v. Eckert (2006), 27 M.V.R. (5th) 11, 2006 MBCA 6, 2006 CarswellMan 7, 201 Man. R. (2d) 175, 366 W.A.C. 175 (Man. C.A.) — followed R. v. Gallant (2008), 2008 CarswellPEI 1, 2008 PESCAD 1, 55 M.V.R. (5th) 15, 272 Nfld. & P.E.I.R. 338, 830 A.P.R. 338, 228 C.C.C. (3d) 61, [2008] P.E.I.J. No. 1 (P.E.I. C.A.) — considered R. v. Hall (2007), 2007 CarswellOnt 52, 41 M.V.R. (5th) 8, 219 O.A.C. 251, 83 O.R. (3d) 641, 2007 ONCA 8, [2007] O.J. No. 49 (Ont. C.A.) — considered R. v. Homer (2003), 33 M.V.R. (4th) 220, 2003 CarswellBC 465, 2003 BCCA 15, 179 B.C.A.C. 195, 295 W.A.C. 195, [2003] B.C.J. No. 162 (B.C. C.A.) — considered R. v. Howe (2007), 330 N.B.R. (2d) 204, 845 A.P.R. 204, 2007 CarswellNB 559, 2007 CarswellNB 560, 2007 NBCA 84, [2007] N.B.J. No. 515 (N.B. C.A.) — considered R. v. Junkert (2010), 98 M.V.R. (5th) 14, 2010 ONCA 549, 2010 CarswellOnt 5845 (Ont. C.A.) — followed R. v. Kaserbauer (2003), 171 Man. R. (2d) 230, 2003 MBQB 28, 2003 CarswellMan 46, [2003] M.J. No. 51 (Man. Q.B.) — considered R. v. LaChappelle (2007), 2007 ONCA 655, 2007 CarswellOnt 6000, 226 C.C.C. (3d) 518, (sub nom. R. v. Lachappelle) 229 O.A.C. 206, 52 C.R. (6th) 175, 162 C.R.R. (2d) 45, 52 M.V.R. (5th) 56, [2007] O.J. No. 3613 (Ont. C.A.) — considered R. v. M. (C.A.) (1996), 46 C.R. (4th) 269, 194 N.R. 321, 105 C.C.C. (3d) 327, 73 B.C.A.C. 81, 120 W.A.C. 81, [1996] 1 S.C.R. 500, 1996 CarswellBC 1000, 1996 CarswellBC 1000F, EYB 1996-67066, [1996] S.C.J. No. 28 (S.C.C.) — considered R. v. M. (G.) (1992), 77 C.C.C. (3d) 310, 58 O.A.C. 390, 11 O.R. (3d) 225, 1992 Cars- wellOnt 802, [1992] O.J. No. 2304 (Ont. C.A.) — referred to R. c. M. (L.) (2008), 2008 CarswellQue 4417, 2008 CarswellQue 4418, (sub nom. R. v. L.M.) 374 N.R. 351, (sub nom. R. v. M. (L.)) 293 D.L.R. (4th) 1, (sub nom. R. v. L.M.) [2008] 2 S.C.R. 163, (sub nom. R. v. M. (L.)) 231 C.C.C. (3d) 310, 2008 SCC 31, 56 C.R. (6th) 278, [2008] S.C.J. No. 31 (S.C.C.) — followed R. v. McCowan (2010), 478 W.A.C. 295, 251 Man. R. (2d) 295, 2010 CarswellMan 200, 2010 MBCA 45, 255 C.C.C. (3d) 123, [2010] 7 W.W.R. 195 (Man. C.A.) — followed R. v. McIlwrick (2008), 2008 CarswellAlta 1859, 2008 ABQB 724, 461 A.R. 16, 99 Alta. L.R. (4th) 137, 76 M.V.R. (5th) 88 (Alta. Q.B.) — followed R. c. Morneau (2009), 2009 QCCA 1496, 2009 CarswellQue 8008, EYB 2009-162542 (Que. C.A.) — considered R. c. Morneau (2010), (sub nom. R. v. Morneau) 404 N.R. 393 (note), 2010 CarswellQue 280, 2010 CarswellQue 281, [2009] S.C.C.A. No. 408 (S.C.C.) — referred to R. v. Munro (2005), 2005 CarswellOnt 8979, [2005] O.J. No. 3431 (Ont. C.A.) — considered R. v. Nasogaluak (2010), [2010] 1 S.C.R. 206, 72 C.R. (6th) 1, [2010] 4 W.W.R. 1, 251 C.C.C. (3d) 293, 474 A.R. 88, 479 W.A.C. 88, 206 C.R.R. 100, 315 D.L.R. (4th) 193, 470 W.A.C. 395 (note), 469 A.R. 395 (note), 19 Alta. L.R. (5th) 1, 2010 SCC 6, 2010 CarswellAlta 268, 2010 CarswellAlta 269, 398 N.R. 107, 90 M.V.R. (5th) 1, [2010] S.C.J. No. 6 (S.C.C.) — followed R. v. Niganobe (2010), 95 M.V.R. (5th) 175, 2010 ONCA 508, 2010 CarswellOnt 4928, [2010] O.J. No. 2959 (Ont. C.A.) — considered R. v. Ramage (2010), 2010 ONCA 488, 2010 CarswellOnt 4956, 257 C.C.C. (3d) 261, 96 M.V.R. (5th) 1, [2010] O.J. No. 2970 (Ont. C.A.) — considered R. v. Ruizfuentes 23

R. v. Regnier (2002), 2002 SKCA 82, 2002 CarswellSask 399, 219 Sask. R. 316, 272 W.A.C. 316, 26 M.V.R. (4th) 43 (Sask. C.A.) — considered R. v. Rezaie (1996), 1996 CarswellOnt 4753, 112 C.C.C. (3d) 97, 31 O.R. (3d) 713, 3 C.R. (5th) 175, 96 O.A.C. 268, [1996] O.J. No. 4468 (Ont. C.A.) — referred to R. v. Richard (2009), 2009 MBQB 181, 2009 CarswellMan 317, 85 M.V.R. (5th) 151, 241 Man. R. (2d) 298 (Man. Q.B.) — considered R. v. Rhyason (2007), 2007 ABCA 119, 2007 CarswellAlta 437, 45 M.V.R. (5th) 5, 394 W.A.C. 191, 404 A.R. 191, [2007] A.J. No. 372 (Alta. C.A.) — considered R. v. Shave (2005), 25 M.V.R. (5th) 285, 2005 CarswellMan 348, [2005] M.J. No. 16 (Man. Prov. Ct.) — considered R. v. Shropshire (1995), 43 C.R. (4th) 269, 102 C.C.C. (3d) 193, 188 N.R. 284, 129 D.L.R. (4th) 657, 65 B.C.A.C. 37, 106 W.A.C. 37, [1995] 4 S.C.R. 227, 1995 Car- swellBC 906, 1995 CarswellBC 1149, EYB 1995-67071, [1995] S.C.J. No. 52 (S.C.C.) — referred to R. v. Solowan (2008), 2008 SCC 62, 2008 CarswellBC 2396, 2008 CarswellBC 2397, [2008] 3 S.C.R. 309, 299 D.L.R. (4th) 577, 261 B.C.A.C. 27, 440 W.A.C. 27, 70 M.V.R. (5th) 1, (sub nom. R. v. S. (K.S.T.)) 237 C.C.C. (3d) 129, 61 C.R. (6th) 268, 381 N.R. 191, [2008] S.C.J. No. 55 (S.C.C.) — referred to R. v. Spence (June 2, 2006), Chartier Prov. Ct. J., [2006] M.J. No. 238 (Man. Prov. Ct.) — considered R. v. W. (G.) (1999), 27 C.R. (5th) 203, 247 N.R. 135, 181 Nfld. & P.E.I.R. 139, 550 A.P.R. 139, [1999] 3 S.C.R. 597, 178 D.L.R. (4th) 76, 1999 CarswellNfld 253, 1999 CarswellNfld 254, 138 C.C.C. (3d) 23, [1999] S.C.J. No. 37 (S.C.C.) — referred to R. v. Wholesale Travel Group Inc. (1991), 1991 CarswellOnt 117, 4 O.R. (3d) 799 (note), 1991 CarswellOnt 1029, 67 C.C.C. (3d) 193, 130 N.R. 1, 38 C.P.R. (3d) 451, 8 C.R. (4th) 145, 49 O.A.C. 161, 7 C.R.R. (2d) 36, [1991] 3 S.C.R. 154, 84 D.L.R. (4th) 161, [1991] S.C.J. No. 79, EYB 1991-67633 (S.C.C.) — followed Ward v. Vancouver (City) (2010), 75 C.C.L.T. (3d) 1, 404 N.R. 1, 76 C.R. (6th) 207, 2010 SCC 27, 7 B.C.L.R. (5th) 203, 321 D.L.R. (4th) 1, [2010] 9 W.W.R. 195, 2010 CarswellBC 1947, 2010 CarswellBC 1948, [2010] S.C.J. No. 27 (S.C.C.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 12 — referred to Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 255(1) — considered s. 255(3) — referred to s. 718 — referred to s. 718.1 [en. R.S.C. 1985, c. 27 (1st Supp.), s. 156] — considered s. 718.2(a) [en. 1995, c. 22, s. 6] — considered s. 730(1) — referred to s. 742.1 [en. 1992, c. 11, s. 16] — considered s. 752 “serious personal injury offence” — referred to 24 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

Highway Traffic Act, S.M. 1985-86, c. 3 Generally — referred to

APPEAL by accused from sentence for impaired driving causing death.

Richard J. Chartier J.A.: Introduction and Issues 1 The accused was sentenced to six years’ imprisonment and given a 15-year driving prohibition on one count of impaired driving causing death, contrary to s. 255(3) of the Criminal Code (the Code). 2 The accused appeals on the ground that the sentence is unfit because the sentencing judge overemphasized his prior driving record under The Highway Traffic Act, C.C.S.M., c. H60 (the HTA), and failed to give sufficient weight to the mitigating factors. The Crown submits that appellate intervention is unwar- ranted because the sentencing judge did not err in principle and the sentence is not demonstrably unfit.

The Facts 3 The facts are not contested. On December 2, 2008, the accused was observed to be speeding, tailgating and driving through intersections against red lights. When he drove through his third red light, his vehicle hit another vehicle, killing the driver. Two breath samples were taken outside of the two-hour limit period, resulting in readings of 120 milligrams of alcohol in 100 millilitres of blood. He pled guilty to one count of impaired driving causing death. At the sentencing hearing, the Crown filed an expert report that estimated the accused’s blood alcohol readings at the time of driving to be between 131 and 183 milligrams of alcohol in 100 millilitres of blood. 4 The accused has a very limited and dated unrelated criminal record comprised of two entries, but only one conviction: a conditional discharge for possession of marihuana in 1998 and a conviction for breaching a condition of his discharge in 1999, for which he received a $100 fine. Although a discharge (absolute or conditional) will cause an entry to be entered on a person’s criminal record, it is not a conviction (see s. 730(1) of the Code). 5 The accused does, however, have an unenviable driving abstract under the HTA, which lists 13 infractions spanning a 15-year period and consisting mostly of offences of disobeying traffic control devices (six, one of which was driving through a red light in 1997) or driving without a proper licence (five). In the five years leading up to this incident, his HTA record shows one speeding offence in 2005 and one offence of disobeying a traffic control device (no turns allowed) in June of 2008. R. v. Ruizfuentes Richard J. Chartier J.A. 25

Position of the Parties 6 At the sentencing hearing, the Crown submitted that the accused should be sentenced to a period of imprisonment of five years. Defence argued for a jail sentence in the range of 18 to 24 months. The sentencing judge imposed six years, one year more than what was requested by the Crown.

Standard of Review 7 As was stated in R. c. M. (L.), 2008 SCC 31, [2008] 2 S.C.R. 163 (S.C.C.) at para. 14, an appellate court must show “great deference” when reviewing a sentencing decision. Upon the granting of leave, an appellate court can only inter- fere with a sentence in two circumstances: when the sentence is “demonstrably unfit,” “demonstrably inadequate or excessive,” or “clearly unreasonable,” or when it has been arrived at as a result of an error in principle. An error in principle includes failing to consider a relevant factor, taking into account an irrelevant factor, failing to give sufficient weight to a relevant factor or overemphasizing an appropriate factor. See R. v. Shropshire, [1995] 4 S.C.R. 227 (S.C.C.), R. v. M. (C.A.), [1996] 1 S.C.R. 500 (S.C.C.), R. v. Rezaie (1996), 112 C.C.C. (3d) 97 (Ont. C.A.), and R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309 (S.C.C.) at para. 16. “Unreasonableness” or “demonstrably unfit” in the sentencing context refers to an order falling outside the “acceptable range” of sentences under similar circumstances. See Shropshire, at para. 50, and R. v. W. (G.), [1999] 3 S.C.R. 597 (S.C.C.), which is referred to at para. 14 of M. (L.).

Reasons for Sentence 8 The sentencing judge noted that Parliament had recently amended the Code to remove conditional sentences as a sentencing option. She then commented on the wide range of sentencing for impaired driving causing death and accepted that the applicable range was “two to seven years, depending upon the aggravating and mitigating factors present.” In her unreported oral reasons ((14 Septem- ber 2009), Winnipeg, Docket: 010-94540 (Man. P.C.)), she reviewed the case law and correctly explained that “[w]hile the court must consider all of the principles of sentencing, including rehabilitation, the principles of denunciation and deterrence are of paramount importance.” She then considered the aggravating and mitigating circumstances. On the latter, she stated: There are mitigating factors. As indicated earlier the accused seems genuinely remorseful. He has been a productive member of society. He has the support of family and friends. He has been cooperating with the authorities in custody and vows to take advantage of programming, either while in or out of custody. He has offered his services to speak at preventative programming. While I note that the case for the Crown appears strong, the accused is entitled to some credit for entering a guilty plea prior to the preliminary inquiry. 26 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

9 The sentencing judge noted the aggravating factors: that the accused was driving in a dangerous and erratic manner, by weaving through traffic and going through three intersections against a red light; that he was driving while impaired; and that he had numerous prior highway traffic offence convictions for disobeying traffic control devices. She found: .... The court must take into account the high moral blameworthiness of this accused, including the intentional risks taken on the night in question, the harm caused by the accused and the high degree of deviation from acceptable standards of conduct. When considering the past behaviour of the accused, as demonstrated by his previous driving record, the only conclusion is that the accused is disentitled to leniency. Even bearing in mind the mitigating factors, the court must fashion a sentence which addresses the issues of denunciation and deterrence and sends a clear message that this behaviour will not be condoned. .... 10 In the judgment of the sentencing judge, the Crown’s five-year recommen- dation was not enough. She therefore imposed a six-year period of incarceration, together with a 15-year driving prohibition.

Analysis 11 Parliament recently amended the punishment sections for drinking and driving offences. There are two amendments that impact directly on the impaired driving causing death offence. First, the amendment to s. 742.1 of the Code (that came into force on December 1, 2007), which now precludes the imposition of a conditional sentence for a person convicted of a “serious personal injury offence” such as impaired driving causing death. Second, on October 1, 2008, the minimum sentence for this offence, along with the other drinking and driving offences, was increased for a first offence from a $600 fine to one of $1,000, for a second offence from 14 days of imprisonment to 30 days, and for subsequent offences from 90 days to 120 days of imprisonment. 12 As a result of these amendments, Parliament has in effect reduced the breadth of sentencing options available for judges by taking away a type of sentence that was often used for first offenders (the conditional sentence) and by raising the minimum sentence plateau.

a) Review of the Case Law 13 This appeal provides the opportunity to review the case law from across the country to determine what, if any, effect the elimination of the conditional sentence option and the increase in the minimum sentences has had on the general range of sentences for this type of offence. 14 This review is circumscribed in two ways. First, this review is limited to reported impaired driving causing death sentencing decisions from this province’s trial courts, together with Canadian appellate decisions. Second, I limited this review to the last seven or eight years thinking that such a period of time R. v. Ruizfuentes Richard J. Chartier J.A. 27

would provide a sufficient number of cases pre- and post-amendments. Surpris- ingly, other than the case at hand, all of the decisions pertain to offences which occurred prior to the amendments. 15 I also separated the cases into two groups: those involving first offenders, where the accused has no prior record for drinking and driving or serious personal injury offences, and those involving second or subsequent offenders, where the accused had a prior record for such offences. The reason for so doing is simple. Section 255(1) of the Code compels a harsher minimum punishment for second or subsequent offenders than for first offenders. As a result, different ranges of sentences have evolved for the two categories of offenders. 16 Attached as an appendix to this decision is the sentencing synopsis for all of the cases that I reviewed. In addition to the period of incarceration, this synopsis also indicates the length of the driving prohibition that was imposed at the time of sentencing. As far as I am aware, it lists all of the reported sentencing decisions for impaired driving causing death from this province and from the other Canadian appellate courts, arising in the last seven to eight years. 17 What can be ascertained from this review is that, for the most part, the sentences range from one to four years of imprisonment for offenders who have no prior convictions for drinking and driving or serious personal injury offences (see R. v. Homer, 2003 BCCA 15, 179 B.C.A.C. 195 (B.C. C.A.); R. v. Dalkeith- Mackie, 2003 MBCA 144, 180 Man. R. (2d) 175 (Man. C.A.); R. v. Munro, [2005] O.J. No. 3431 (Ont. C.A.); R. v. Howe, 2007 NBCA 84, 330 N.B.R. (2d) 204 (N.B. C.A.); R. v. LaChappelle, 2007 ONCA 655, 226 C.C.C. (3d) 518 (Ont. C.A.), and R. v. Ramage, 2010 ONCA 488 (Ont. C.A.)). 18 For those with prior convictions for drinking and driving or serious personal injury offences, the sentences tend to be around the five- to six-year range (see R. v. Regnier, 2002 SKCA 82, 219 Sask. R. 316 (Sask. C.A.); R. v. Hall (2007), 83 O.R. (3d) 641 (Ont. C.A.); R. v. Bear, 2008 SKCA 172, 320 Sask. R. 12 (Sask. C.A.); R. v. Richard, 2009 MBQB 181, 241 Man. R. (2d) 298 (Man. Q.B.); R. c. Morneau, 2009 QCCA 1496 (Que. C.A.), and R. v. Niganobe, 2010 ONCA 508, 95 M.V.R. (5th) 175 (Ont. C.A.)). 19 This corresponds with what was found by Ross J. in R. v. McIlwrick, 2008 ABQB 724, 461 A.R. 16 (Alta. Q.B.), who conducted a helpful review of the sentencing ranges for impaired driving causing death and/or bodily harm offences in Canada. She found that “sentences greater than 4 years are almost always reserved for offenders with previous impaired driving charges” (at para. 68), while sentences of five years or more were generally imposed when there were significant aggravating factors including prior drinking and driving convictions (see paras. 66-68 of McIlwrick). 20 Furthermore, and as was noted by O’Connor A.C.J.O. in R. v. Junkert, 2010 ONCA 549 (Ont. C.A.), where a five-year sentence was upheld for a first offender, the more recent cases clearly show a trend toward higher sentences. He 28 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

noted an incremental increase in the length of sentences imposed for drinking and driving offences has been occurring in recent years, stating (at paras. 46-49): In my view, a sentence of five years for this offence cannot be said to be “a substantial and marked departure” from the sentences ordinarily imposed on similar offenders for similar offences. In recent years there has been an upward trend in the length of sentences imposed for drinking and driving offences. The reasons for this trend can be attributed to society’s abhorrence for the often tragic circumstances that result when individuals choose to drink and drive, thereby putting the lives and safety of others at risk. The imposition of substantial penalties for drinking and driving offences sends an important message to individuals who are considering driving while their ability is impaired. While the length of sentences in cases of impaired driving causing death varies considerably, courts have imposed sentences approaching or similar to the five-year sentence under appeal in this case. In the recent case of Ramage, this court upheld a sentence of four years for impaired driving causing death. In R. v. Niganobe 2010 ONCA 508, this court upheld a sentence of five years for impaired driving causing death. In Hall, this court upheld a sentence of four years and 10 months for the same offence. In Hall and Niga- nobe, the offenders had previous related records. In Ramage, the offender did not. I recognize that sentences of four to five years for first offenders may be at the high end of sentences imposed by the courts to this point in time. That said, I do not think that a sentence of five years for this offence is unfit. Nor is it a significant departure from sentences previously imposed so as to warrant interference by this court. While the sentence in this case may be seen as a slight movement upwards, I am satisfied that the increase, if there is one, is incremental and that it quite properly continues the very gradual trend that has taken place over recent years. 21 As indicated previously, all of the cases that I have reviewed were pre- amendment. A review of the case law shows that, although the conditional sentence option was often used, it was chosen less frequently in the more recent past (see R. v. Shave (2005), 25 M.V.R. (5th) 285 (Man. Prov. Ct.); R. v. Bone, [2005] M.J. No. 75 (Man. Q.B.); R. v. Capuska (2005), 194 Man. R. (2d) 113 (Man. Prov. Ct.); R. v. Spence, [2006] M.J. No. 238 (Man. Prov. Ct.); R. v. Gal- lant, 2008 PESCAD 1 (P.E.I. C.A.)). This review also shows that prior to 2010, none of the sentences imposed for a first offender exceeded three and one-half years. Although there are only two 2010 decisions relating to first offenders, both accused received sentences exceeding three and one-half years; specifically, four (Ramage) and five years (Junkert) respectively. The recent trend shows for the most part, a move away from conditional sentences (and this was before that sentencing option was taken away) and an increase in the periods of incarceration. R. v. Ruizfuentes Richard J. Chartier J.A. 29

22 As a result of the recent amendments and the review of the case law, I conclude that the regular range of sentences for offenders who commit the crime of impaired driving causing death and who have no prior convictions for drinking and driving or serious personal injury offences should be increased to a range of two to five years. For those who are second or subsequent offenders, it moves upwards to a range of four to eight years. As for driving prohibitions, the cases show that for first offenders, the range is three to ten years and for second or subsequent offenders, from ten years to a lifetime ban. Of course, these ranges are but guidelines and, as was recently explained in R. v. McCowan, 2010 MBCA 45, 251 Man. R. (2d) 295 (Man. C.A.) by Steel J.A. (at para. 11): .... Sentencing ranges are useful in promoting consistency and parity because they provide guidelines to sentencing judges for the imposition of similar penalties for similar offences of a similar nature involving similar offenders. See R. v. McDonnell [1997] 1 S.C.R. 948. But they are nothing more than guidelines and are certainly not conclusive of the appropriate sentence in any given case. The Supreme Court of Canada recently confirmed this basic principle in R. v. Nasogaluak 2010 SCC 6, [[2010] 1 S.C.R. 206] 251 C.C.C. (3d) 293, when it repeated that a judge can order a sentence outside of a guideline range so long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. See also, R. v. Sinclair (W.J.) 2009 MBCA 91, 245 Man.R. (2d) 237 at para. 6.

b) Any Error in Principle 23 I return to the case at hand. The accused argues that the sentencing judge erred in principle by overemphasizing his HTA record and by treating his age of 41 years to be an aggravating factor. 24 Let me deal with the last point first. The sentencing judge stated in her reasons: “The aggravating factors in this case are numerous. At 41 years of age, the accused is not a youthful offender.” While youth can be a mitigating factor, the opposite does not hold true. The fact that someone is no longer a youthful offender is not an aggravating factor. If an accused is neither young, nor old, age is generally a neutral factor (see Clayton Ruby, Sentencing, 7th ed. (Toronto: Lex- isNexis, 2008) at 251, and R. v. M. (G.), [1992] O.J. No. 2304 (Ont. C.A.) at para. 20). In my view, although the sentencing judge did err on this point, it does not, on its own, reach the level of reversible error. 25 I will now turn to the principal issue on this appeal, whether the sentencing judge overemphasized the accused’s HTA record. The concern arises because the sentencing judge stated that the accused was “anything but a first offender” as a result of his HTA record. A little context is required. During submissions at the sentencing hearing, counsel for the accused (who is different on appeal) reminded the judge that the 41-year-old accused had never been involved in an 30 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

accident, that he had no related criminal record, and that this was an isolated incident involving a first offender. The following is taken from his submission: MR. LASKO: So this is a man who’s 41 years old, who had up until this incident no accidents on his driver’s abstract, no dangerous driving, no reckless driving, no careless driving, and certainly no drinking and driving, and no criminal record. THE COURT: Isn’t part of the problem, Mr. Lasko, that the allegations with respect to this incident involve something beyond disobeying a traffic control device, but part of the incident was caused by his failure to obey a traffic control device? MR. LASKO: Yes. THE COURT: And he has a history of doing exactly that. MR. LASKO: That’s correct. Part and parcel of this incident was his direct disobedience of traffic control devices. Two of them we’ve heard of and the facts are not disputed. I’ll deal with that a little later, Your Honour. So I think that the court can treat Mr. Ruizfuentes not only as a first time offender, but can also treat his criminal acts causing the accident he caused as an isolated incident. It was the only accident that I’ve noted from his record. And certainly, Your Honour, you’ve seen much worse driving histories before hearing what you’ve heard today in this courtroom. 26 There can be no doubt that the “first time offender” comments of Mr. Lasko related to his insistence that the accused be sentenced in the “first offence” range because he had no prior drinking and driving convictions. The reasons of the sentencing judge clearly show that she rejected this part of his submission. She stated: What is further troubling is the nature and extent of the accused’s driving record. Defence counsel suggests that his client should be treated by the court as a “first offender” due to his lack of alcohol convictions on his record. I respectfully disagree. The accused is anything but a first offender. The nature and number of entries on his driving abstract demonstrate a pattern of disregard for the rules of the road put in place to ensure the safety of all motorists. The entries for speeding and disobeying a traffic control device demonstrate a course of conduct similar to the conduct on the night of De- cember the 2nd, 2008. These entries are such as to disentitle the accused to leniency. [emphasis added] 27 A judge errs when an accused is sentenced on the premise that he or she is not a first offender when, in fact, there is no prior criminal record (see R. v. Ceraldi, [1990] B.C.J. No. 2741 (B.C. C.A.)). Although the accused in this case did have one prior conviction (a $100 fine for not respecting the conditions of a discharge order in 1999), it was dated, minor and unrelated. The more dated and R. v. Ruizfuentes Richard J. Chartier J.A. 31

unrelated the record the less weight it should receive. In this case, the sentencing judge should have given very little weight, if any, to his prior criminal record. 28 More importantly, because the accused had no prior drinking and driving convictions, he was not “anything but a first offender,” for the purposes of sentencing under s. 255. In the context of sentencing for drinking and driving offences, the distinction between an accused who appears for a “first offence” as opposed to a “second” or “subsequent” offence is important. As already stated, s. 255(1) of the Code compels a harsher minimum punishment for second or subsequent offenders than for first offenders. As a result, in drinking and driving offences, a sentencing range has evolved for first offenders and another for second and subsequent offenders. 29 A fair reading of the sentencing judge’s reasons shows that she decided to treat the accused as “anything but a first offender” because of his HTA record. A prior HTA record, although a relevant and important consideration in an impaired driving causing death sentencing hearing, cannot be elevated in significance to the level of a criminal record. There is an important distinction to be made between a regulatory offence, such as the HTA, and a criminal offence. They embody different concepts of fault and therefore moral blameworthiness. As Lamer C.J.C. explained in R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154 (S.C.C.) (at p. 219): .... Since regulatory offences are directed primarily not to conduct itself but to the consequences of conduct, conviction of a regulatory offence may be thought to import a significantly lesser degree of culpability than conviction of a true crime. The concept of fault in regulatory offences is based upon a reasonable care standard and, as such, does not imply moral blameworthiness in the same manner as criminal fault. Conviction for breach of a regulatory offence suggests nothing more than that the defendant has failed to meet a prescribed standard of care. 30 In my view, the sentencing judge erred in principle by treating the accused as “anything but a first offender” because of his HTA record. Moreover, this error also led to the imposition of a sentence usually reserved for second offenders and it is demonstrably unfit. I find support for this conclusion by the fact that the Crown was unable to point to any authority where a sentence of six years was imposed for one count of impaired driving causing death for a first offender. As a result, appellate intervention is justified and it is open to this court to impose the sentence it thinks fit.

c) Imposition of Sentence 31 As stated above, in my view, the appropriate range of sentences for this type of offence is two to five years. To determine where an accused should be within that general range, the sentencing judge will determine which sentencing objectives (s. 718 of the Code) deserve the greatest weight given the circumstances of the case. The judge will also consider any relevant mitigating or aggravating 32 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

circumstances. These factors will cause the judge to decrease or increase the sentence along the appropriate range for similar crimes (see s. 718.2(a)). Lastly, the sentencing judge will take a last look at the prospective sentence to ensure that it respects the overarching principle of sentencing: proportionality (see s. 718.1, and R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 (S.C.C.) at paras. 39-45). 32 As LeBel J. made clear for a unanimous court in Nasogaluak, “whatever weight a judge may wish to accord to the [sentencing] objectives ..., the resulting sentence must respect the fundamental principle of proportionality” (at para. 40). This is so because the proportionality principle acquired a constitutional dimension as a result of the protection against grossly disproportionate sentences under s. 12 of the Canadian Charter of Rights and Freedoms (see para. 41). He then reiterated what “proportionality” meant (at para. 42): For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the “just deserts” philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused (R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring). Understood in this latter sense, sentencing is a form of judicial and social censure (J. V. Roberts and D. P. Cole, “Introduction to Sen- tencing and Parole”, in Roberts and Cole, eds., Making Sense of Sentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society’s condemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary. [emphasis added] 33 In cases of impaired driving causing death, the paramount objectives of sentencing are denunciation and deterrence. The punishment must express society’s condemnation of the accused’s ways and serve to dissuade others from engaging in similar conduct. In such cases, an accused is “punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity” (see Ward v. Vancouver (City), 2010 SCC 27 (S.C.C.), at para. 29). 34 There were mitigating circumstances present in this case: • no prior related criminal record; • he pled guilty; • he is genuinely remorseful; R. v. Ruizfuentes Richard J. Chartier J.A. 33

• he showed true victim empathy. As noted by the sentencing judge, he was “very distressed and concerned about the condition of the victim”; • he has a stable family condition and employment; • he has support of family and friends; • he has cooperated with the authorities in custody; • he has drafted a letter to MADD Canada and prepared a speech he wishes to deliver at speaking engagements; and • he is prepared to take advantage of programming. 35 In my view, however, the aggravating circumstances, although fewer in number, outweigh the mitigating factors simply because of the sheer dangerous- ness of the accused’s actions: voluntarily drinking to the point of impairment, getting behind the wheel of a motor vehicle, speeding and entering intersections against red lights on three occasions. All of which led to the inevitable tragic result. A further and significant aggravating circumstance is the accused’s lengthy and related prior driving record. 36 In this case, a person’s life was needlessly and prematurely taken away. The resulting death was not the product of a momentary lapse of judgment. The accused was speeding and blew through not one, but three red lights. The punishment must reflect society’s condemnation and dissuade others from like conduct. As a result, I am of the view that the sentence must be on the higher end of the two- to five-year range. 37 The last step of the sentencing process requires the sentence to respect the fundamental principle of sentencing: proportionality. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This requires an examination of the accused’s degree of guilt or moral blameworthiness with respect to the offence committed and the harm done to the victim to ensure that the sentence is in line with his “moral culpability, and not greater than it” (see Nasogaluak, at para. 42). As was explained by Steel J.A. in R. v. Eckert, 2006 MBCA 6, 201 Man. R. (2d) 175 (Man. C.A.), when conducting this assessment, although a judge must not lose sight of the harm done, it is the accused’s level of culpable behaviour that needs to be scrutinized (at para. 16): In passing sentence, the judge must assess the moral blameworthiness involved in each case. It is not sufficient to look only at the tragic consequences when determining the seriousness of a crime. The function of a court is not to exact revenge, but, in this case, a sentence should express society’s denunciation of the conduct involved. Therefore, the nature of the blameworthy conduct that led to the consequences must be considered. 38 Here, in terms of the moral blameworthiness of the accused, though he did not intentionally set out to kill someone that night, he clearly was at fault and responsible for the death of the victim. To assess the extent of moral culpability 34 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

in a particular case, due regard must be given to “the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct” (see R. v. M. (C.A.), at para. 80). 39 I will begin with the normative character of his conduct. Although his HTA record does show an improvement in conduct during the five years preceding this offence, it remains that he has a long history of not respecting traffic control devices. This driving record speaks volumes as to the accused’s expected pattern of behaviour. I need not comment any further on the intentional risk-taking of the accused and the consequential harm that he caused other than to restate that this was no fleeting failure in judgment. By speeding and driving through three intersections against red lights, he was continuing his prior manner of driving and he demonstrated an unwillingness to correct the offending conduct. That there would be tragic consequences was a near certainty. On the spectrum of moral blameworthiness for impaired driving causing death, the accused clearly registers at the high end. 40 In my view, on the two- to five-year range of sentences for first offenders, the appropriate period of imprisonment in all of these circumstances is four and one-half years of imprisonment. I would also prohibit the accused from driving for a period of seven and one-half years. As a result, I would grant leave to appeal the sentence and allow the appeal by varying the term of imprisonment, prior to any pre-sentence custody credit, from six to four and one-half years and the driving prohibition from 15 to seven and one-half years. For the accused’s nine months of pre-sentence custody, I would credit him on the same 2:1 basis as allocated by the sentencing judge. Therefore, the resultant sentence, after deducting the 18-month pre-sentence custody credit, is a three-year term of imprisonment and a seven and one-half year driving prohibition.

Alan D. MacInnes J.A.:

I agree.

Michel A. Monnin J.A.:

I agree. Sentence varied.

Appendix First Offenders R. v. Homer, 2003 BCCA 15, 179 B.C.A.C. 195 (B.C. C.A.): Three years of imprisonment for a 37-year-old who had a substance abuse problem. She lost control of her vehicle killing a teenage girl who was standing at an intersection. Her breathalyzer readings were .230 and .224. R. v. Ruizfuentes Michel A. Monnin J.A. 35

R. v. Dalkeith-Mackie, 2003 MBCA 144, 180 Man. R. (2d) 175 (Man. C.A.): Three years of imprisonment and a ten-year driving prohibition for a 19- year-old accused who pled guilty to two counts of impaired driving causing death and one count of impaired driving causing bodily harm. He was speeding and lost control of the vehicle. Two of his passengers died and one was injured. His breathalyzer readings were .100 and .090. R. v. Shave (2005), 25 M.V.R. (5th) 285 (Man. Prov. Ct.): Two years less a day conditional sentence and a five-year driving prohibition for a 21-year-old who had no criminal record. His breathalyzer reading was over .200. He showed sincere remorse and had abstained from alcohol since the incident. R. v. Bone, [2005] M.J. No. 75 (Man. Q.B.): Two years less a day conditional sentence and a three-year driving prohibition for a 21-year-old accused who had no criminal record. Her breathalyzer reading was .200 and she was driving without a driver’s licence. Following the incident she enrolled in an alcohol treatment program. R. v. Capuska (2005), 194 Man. R. (2d) 113 (Man. Prov. Ct.): Two years less a day conditional sentence and a five-year driving prohibition for a 20-year- old accused who had no criminal record. Her breathalyzer reading was .150 and she was driving without a driver’s licence. Following the incident, she had not driven. R. v. Munro, [2005] O.J. No. 3431 (Ont. C.A.): Three and one-half years’ imprisonment and a seven-year driving prohibition for a 37-year-old convicted of impaired driving causing death and impaired driving causing bodily harm. The accused had been drinking all day at a golf tournament and refused a ride home. The court noted that the accused’s blood alcohol reading exceeded 160 milligrams of alcohol in 100 millilitres of blood and that this is deemed to be an aggravating factor under s. 255(1) of the Code. The accused was an alcoholic and had a conviction for assault in 1986 and cultivating a narcotic in 1995. R. v. Spence, [2006] M.J. No. 238 (Man. Prov. Ct.): Two years less a day conditional sentence with an absolute curfew for the first 12 months of the sentence followed by a four-year driving prohibition for a 20-year-old accused who did not hold a driver’s licence and had double the legal blood alcohol content. The only matter on her criminal record was a discharge in 2003. R. v. Howe, 2007 NBCA 84, 330 N.B.R. (2d) 204 (N.B. C.A.): Three years of imprisonment and a four-year driving prohibition for a 41-year-old who at first failed to stop at the scene, but 20 minutes after the collision called 911 and reported the accident. He pled guilty and was remorseful. The accused had a long-standing problem with alcohol. R. v. LaChappelle, 2007 ONCA 655, 226 C.C.C. (3d) 518 (Ont. C.A.): A 21- month period of imprisonment and a five-year driving prohibition for a 41- year-old police officer who lost his job as a result of the conviction. His blood alcohol was between 130 and 210 milligrams of alcohol in 100 millilitres of blood and there was some evidence of poor driving. 36 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

R. v. Gallant, 2008 PESCAD 1 (P.E.I. C.A.): An 18-month conditional sentence containing punitive conditions, plus two years’ probation and a two- year driving prohibition for a 39-year-old accused who pled guilty to the offence. A favourable pre-sentence report showed he was very remorseful and cooperative throughout. The victim impact statement was also generally favourable, noting his guilty plea and acceptance of responsibility. The accused had one prior conviction for common assault some 18 years earlier. R. v. Ramage, 2010 ONCA 488 (Ont. C.A.): Four years of imprisonment and a five-year driving prohibition for an accused who was convicted of impaired driving causing death and dangerous driving causing death. An aggravating factor was that his blood alcohol level was very high, well beyond the blood alcohol level of .160 deemed by the Code to be an aggravating factor. There were many mitigating factors, including that he was an “outstanding member” of the community, was a dedicated husband and father, and was remorseful. The victim’s family had asked that he not be incarcerated. Doherty J.A., with some reluctance, affirmed a four-year sentence, writing (at para. 80): ... I was inclined to the view that the sentence appeal should be allowed on the basis that the appellant’s exemplary life, other than this event, entitled him to the lowest possible period of incarceration that would adequately reflect the need for general deterrence and denunciation. I thought that a penitentiary sentence of less than four years would achieve that purpose. Further consideration has, however, led me to conclude that were I to take that approach, I would not be giving the trial judge’s decision the deference it is due. There is no error in principle here. Nor, in light of McVeigh [R. v. McVeigh, (1985), 22 C.C.C. (3d) 145 (Ont. C.A.)] and the relevant jurisprudence, can it be said that a four-year sentence is manifestly unreasonable. This court must yield to the trial judge’s determination as to the appropriate sentence absent an error in principle or a manifestly unreasonable decision. I would add that deferring is made much easier by the trial judge’s thorough reasons, which demonstrate a keen appreciation of all of the factors relevant to the determination of the appropriate sentence in this very difficult case. R. v. Junkert, 2010 ONCA 549 (Ont. C.A.): Five years of imprisonment and a ten-year driving prohibition for an accused who was convicted of impaired driving causing death. He had no prior record. In affirming the sentence, O’Connor A.C.J.O. deferred to the sentencing judge’s decision because the sentence was not demonstrably unfit nor arrived at as a result of an error. Second or Subsequent Offenders R. v. Regnier, 2002 SKCA 82, 219 Sask. R. 316 (Sask. C.A.): Six years of imprisonment and a nine-year driving prohibition for criminal negligence in the operation of a motor vehicle causing death. While impaired, and with two and one-half times the legal limit, he drove on the wrong side of the road and R. v. Ruizfuentes Michel A. Monnin J.A. 37

was involved in a head-on collision. The accused had a lengthy record of alcohol-related driving offences. R. v. Kaserbauer, 2003 MBQB 28, 171 Man. R. (2d) 230 (Man. Q.B.): One year of imprisonment, plus 18 months of probation followed by a three-year driving prohibition for an accused who had a prior drinking and driving conviction. R. v. Hall (2007), 83 O.R. (3d) 641 (Ont. C.A.): Four years’ and ten months’ imprisonment and a ten-year driving prohibition. As his breathalyzer tests were conducted more than two hours after the offence, his blood alcohol was estimated to be between 129 and 165 milligrams of alcohol in 100 millilitres of blood. He had a prior related record. R. v. Rhyason, 2007 ABCA 119, 404 A.R. 191 (Alta. C.A.): Three years of imprisonment for impaired driving causing death. This was an increase from the 18-month sentence he had received from the trial judge. He was 21 years old at the time of the offence and was remorseful. He registered low breathalyzer readings of .120 and .100. He had one previous drinking and driving conviction. R. v. Bear, 2008 SKCA 172, 320 Sask. R. 12 (Sask. C.A.): Six years of imprisonment and a lifetime driving prohibition for impaired driving causing death and impaired driving causing bodily harm. The accused was 31 years old and, amongst other prior offences, had three previous convictions for impaired driving. He drove through a stop sign while impaired. In his pre-sentence report he was rated as a high risk to reoffend, based primarily on his numerous failure-to-comply offences and his alcohol abuse. The trial judge noted that the accused had not accepted responsibility for the offence and, to the contrary, had attempted to shift blame to the other driver. R. v. Richard, 2009 MBQB 181, 241 Man. R. (2d) 298 (Man. Q.B.): Six years of imprisonment and a 15-year driving prohibition. Although the 33- year-old accused had no prior drinking and driving convictions, he had a serious criminal record for violent crime and warrants were in existence at the time of the offence for his arrest for failure to appear in court and failure to report for bail supervision. His licence had been suspended and he was under recognizance to abstain from alcohol when he went to a party and drank to the point of impairment. He then got behind the wheel of a van he knew was stolen. He got into an accident resulting in the death of the victim. The Crown asked for six years; counsel for the accused submitted five years was appropriate. R. c. Morneau, 2009 QCCA 1496 (Que. C.A.): Six years of imprisonment and a 12-year driving prohibition for impaired driving causing death and impaired driving causing bodily harm for a 39-year-old accused who had breathalyzer readings of .247. He also had three prior drinking and driving convictions. Leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 408 (S.C.C.). R. v. Niganobe, 2010 ONCA 508, 95 M.V.R. (5th) 175 (Ont. C.A.): Five years of imprisonment and a 15-year driving prohibition for impaired driving 38 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

causing death and impaired driving causing bodily harm. The accused had a prior criminal record including a conviction for impaired driving in 2003. She did not have a driver’s licence and in fact had never been licensed to drive. The trial judge also found that the accused had not accepted responsibility for her conduct and therefore continued to pose a danger to the public.

[Indexed as: R. v. Donnelly] HER MAJESTY THE QUEEN (Respondent) and NICOLAS DONNELLY (Appellant) Ontario Superior Court of Justice Kane J. Heard: September 1, 8, 2010 Judgment: November 12, 2010 Docket: 08-11719, 2010 ONSC 6122 A. Zegouras, for Respondent Mark Ertel for Appellant Criminal law –––– Offences — Driving/care and control with excessive alcohol — Presumption of alcoholic content at time of offence — Demand by police officer –––– Accused was found by ambulance attendants in his car asleep in driver’s seat with engine running — Paramedics put accused in ambulance to check his vital signs — Officer entered ambulance and took control of accused — Paramedic noticed fruity smell from accused and told officer — Police officer asked accused if he had been drinking and accused said he had had two drinks several hours earlier — Police officer made breath demand and accused failed — Accused was charged with having care and control of vehicle while having excessive blood alcohol level — Accused was convicted — Trial judge found that officer was entitled to enter ambulance and speak to accused and paramedics given that accused’s car was sitting in lane of traffic — Trial judge inferred that had officer not smelled alcohol on accused she still had right or need to enter ambulance to determine if accused could resume control of vehicle, did it need to be towed, or could it be picked up — Trial judge found that paramedics removed keys from ignition to prevent accused from waking and driving off but as they found accused had no medical impairment they allowed officer to assume direction as no further treatment was required — Accused appealed — Appeal dismissed — There was no medical reason to keep accused and possibility of his receiving keys and driving off — Trial judge’s inferences were not unreasonable and were within scope of deference owed to trial judges — Finding that care and control had been established was not inconsistent with law and was not error of law — Trial judge considered surrounding circumstances as required when he considered time between arrival of police, how long since accused was driving or in control of vehicle, and when demand was made — Trial judge found that potential for resumption of driving was present so that care and control had not ended before demand R. v. Donnelly 39 was made — Imminent risk of taking car and driving was sufficient for s. 254(2) of Criminal Code to apply given potential for danger — Accused’s care and control of car was not ended by any police action including seizure of his keys — Trial judge did examine facts with reference to past signification and found that care and control existed when demand was made — Trial judge made no error of law based on facts before him — Trial judge was entitled to make his conclusions on evidence before him. Criminal law –––– Offences — Driving/care and control with excessive alcohol — El- ements — Care and control — Miscellaneous –––– Accused was found by ambulance attendants in his car asleep in driver’s seat with engine running — Paramedics put accused in ambulance to check his vital signs — Officer entered ambulance and took control of accused — Paramedic noticed fruity smell from accused and told officer — Police officer asked accused if he had been drinking and accused said he had had two drinks several hours earlier — Police officer made breath demand and accused failed — Ac- cused was charged with having care and control of vehicle while having excessive blood alcohol level — Accused was convicted — Trial judge found that officer was entitled to enter ambulance and speak to accused and paramedics given that accused’s car was sitting in lane of traffic — Trial judge inferred that had officer not smelled alcohol on accused she still had right or need to enter ambulance to determine if accused could resume control of vehicle, did it need to be towed, or could it be picked up — Trial judge found that paramedics removed keys from ignition to prevent accused from waking and driving off but as they found accused had no medical impairment they allowed officer to assume direction as no further treatment was required — Accused appealed — Appeal dismissed — There was no medical reason to keep accused and possibility of his receiving keys and driving off — Trial judge’s inferences were not unreasonable and were within scope of deference owed to trial judges — Finding that care and control had been established was not inconsistent with law and was not error of law — Trial judge considered surrounding circumstances as required when he considered time between arrival of police, how long since accused was driving or in control of vehicle, and when demand was made — Trial judge found that potential for resumption of driving was present so that care and control had not ended before demand was made — Imminent risk of taking car and driving was sufficient for s. 254(2) of Criminal Code to apply given potential for danger — Accused’s care and control of car was not ended by any police action including seizure of his keys — Trial judge did examine facts with reference to past signification and found that care and control existed when demand was made — Trial judge made no error of law based on facts before him — Trial judge was entitled to make his conclusions on evidence before him. Cases considered by Kane J.: R. v. Antonio (2006), 2006 CarswellOnt 1835, [2006] O.J. No. 938 (Ont. S.C.J.) — considered R. v. B. (R.H.) (1994), 29 C.R. (4th) 113, 42 B.C.A.C. 161, 67 W.A.C. 161, 89 C.C.C. (3d) 193, [1994] 1 S.C.R. 656, 165 N.R. 374, 1994 CarswellBC 1237, 1994 Car- swellBC 576, [1994] S.C.J. No. 30, EYB 1994-67081 (S.C.C.) — considered R. v. Beattie (2009), 203 C.R.R. (2d) 317, 69 C.R. (6th) 92, 2009 CarswellOnt 5768, 2009 ONCJ 456, 89 M.V.R. (5th) 170, [2009] O.J. No. 4121 (Ont. C.J.) — distinguished 40 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

R. v. Biniaris (2000), 134 B.C.A.C. 161, 219 W.A.C. 161, 32 C.R. (5th) 1, 2000 SCC 15, 2000 CarswellBC 753, 2000 CarswellBC 754, 184 D.L.R. (4th) 193, 143 C.C.C. (3d) 1, [2000] 1 S.C.R. 381, 252 N.R. 204, [1998] S.C.C.A. No. 164, [2000] S.C.J. No. 16 (S.C.C.) — considered R. v. Brittain (2000), 4 M.V.R. (4th) 124, [2000] 10 W.W.R. 663, 194 Sask. R. 26, 2000 CarswellSask 450, 2000 SKQB 242, [2000] S.J. No. 442 (Sask. Q.B.) — considered R. v. Campbell (1988), 9 M.V.R. (2d) 1, 66 C.R. (3d) 150, 29 O.A.C. 317, 44 C.C.C. (3d) 502, 1988 CarswellOnt 88, [1988] O.J. No. 1652 (Ont. C.A.) — considered R. v. Clarke (2000), 2000 CarswellOnt 743, 1 M.V.R. (4th) 298, [2000] O.J. No. 804 (Ont. S.C.J.) — referred to R. v. Fildan (2009), 203 C.R.R. (2d) 12, 69 C.R. (6th) 65, 2009 CarswellOnt 5101, 88 M.V.R. (5th) 44, [2009] O.J. No. 3604 (Ont. S.C.J.) — followed R. v. Fran¸cois (1994), 19 O.R. (3d) 322 (note), 31 C.R. (4th) 201, 169 N.R. 241, 73 O.A.C. 161, 91 C.C.C. (3d) 289, 116 D.L.R. (4th) 69, [1994] 2 S.C.R. 827, 1994 CarswellOnt 1160, 1994 CarswellOnt 86, [1994] S.C.J. No. 66, EYB 1994-67660, [1993] S.C.C.A. No. 315 (S.C.C.) — considered R. v. Freake (2007), 2007 CarswellOnt 2817, 2007 ONCJ 204, 48 M.V.R. (5th) 114, [2007] O.J. No. 1763 (Ont. C.J.) — considered R. v. Grant (2009), 193 C.R.R. (2d) 1, 2009 SCC 32, 2009 CarswellOnt 4104, 2009 Cars- wellOnt 4105, 253 O.A.C. 124, 82 M.V.R. (5th) 1, 245 C.C.C. (3d) 1, 66 C.R. (6th) 1, [2009] 2 S.C.R. 353, 391 N.R. 1, 309 D.L.R. (4th) 1, [2009] A.C.S. No. 32, [2009] S.C.J. No. 32 (S.C.C.) — considered R. v. Larose (1996), 1996 CarswellOnt 2283, 8 O.T.C. 79, [1996] O.J. No. 2251 (Ont. Gen. Div.) — considered R. v. MacLellan (1984), 1984 CarswellNB 2, 26 M.V.R. 234, [1983] N.B.J. No. 766 (N.B. Q.B.) — considered R. v. MacPherson (2000), 2000 CarswellOnt 4832, 16 M.V.R. (4th) 1, 150 C.C.C. (3d) 540, 7 M.V.R. (4th) 167, 140 O.A.C. 53, [2000] O.J. No. 4777 (Ont. C.A.) — considered R. v. Najm (2006), 2006 CarswellOnt 3532, 142 C.R.R. (2d) 189, 211 O.A.C. 280, 32 M.V.R. (5th) 204, [2006] O.J. No. 2348 (Ont. C.A.) — considered R. v. Nimeth (2002), 2002 CarswellOnt 6093, [2002] O.J. No. 5644 (Ont. S.C.J.) — considered R. v. Nimeth (2003), 2003 CarswellOnt 578, [2003] O.J. No. 508 (Ont. C.A.) — referred to R. v. S. (P.L.) (1991), 1991 CarswellNfld 197, 5 C.R. (4th) 351, 64 C.C.C. (3d) 193, 122 N.R. 321, 90 Nfld. & P.E.I.R. 234, 280 A.P.R. 234, [1991] 1 S.C.R. 909, 1991 Car- swellNfld 18, [1991] S.C.J. No. 37, EYB 1991-67352 (S.C.C.) — considered R. v. Sergalis (2009), 90 M.V.R. (5th) 116, 2009 CarswellOnt 7100, [2009] O.J. No. 4823 (Ont. S.C.J.) — distinguished R. v. Sriskanthadevan (2007), 2007 CarswellOnt 4403, 2007 ONCJ 304, 52 M.V.R. (5th) 264, [2007] O.J. No. 2748 (Ont. C.J.) — considered R. v. Stillman (1997), [1997] 1 S.C.R. 607, 42 C.R.R. (2d) 189, 1997 CarswellNB 107, 1997 CarswellNB 108, 113 C.C.C. (3d) 321, 144 D.L.R. (4th) 193, 5 C.R. (5th) 1, 185 N.B.R. (2d) 1, 472 A.P.R. 1, 209 N.R. 81, [1997] S.C.J. No. 34 (S.C.C.) — followed R. v. Donnelly Kane J. 41

R. v. Subramaniam (2004), 2004 CarswellOnt 184, 50 M.V.R. (4th) 161, [2004] O.J. No. 226 (Ont. S.C.J.) — referred to R. v. Vansickle (December 17, 1990), Doc. 1109/88, [1990] O.J. No. 3235 (Ont. C.A.) — considered R. v. Wilding (2007), 229 C.C.C. (3d) 507, 233 O.A.C. 47, 55 M.V.R. (5th) 10, 162 C.R.R. (2d) 372, 2007 CarswellOnt 7887, 2007 ONCA 853, 88 O.R. (3d) 680, [2007] O.J. No. 4776 (Ont. C.A.) — followed R. v. Wren (2000), 34 C.R. (5th) 81, 2000 CarswellOnt 685, 47 O.R. (3d) 544, 130 O.A.C. 302, 144 C.C.C. (3d) 374, 2 M.V.R. (4th) 188, [2000] O.J. No. 756 (Ont. C.A.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 8 — considered s. 9 — considered s. 24(2) — considered Criminal Code, R.S.C. 1985, c. C-46 s. 253(b) — pursuant to s. 254(2) — considered

APPEAL by accused of conviction for having care and control of vehicle while having excessive blood alcohol level.

Kane J.:

1 This is an appeal of a conviction dated October 19, 2009, pursuant to s. 253(b) of the Criminal Code of Canada for having care or control of a motor vehicle when the concentration of alcohol in the appellant’s blood exceeded 80 mg/100 ml of blood. The appeal is of the decision of Justice Wake on a blended Charter application within the trial. 2 This appeal and conviction involve the interpretation of s. 254(2), as previously worded, in the Criminal Code of Canada: (2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle ... or who has the care or control of a motor vehicle, ... whether it is in motion or not, has alcohol in the person’s body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken. (Emphasis added). The trial judge made the following findings of fact: 42 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

(a) Two ambulance attendants, pursuant to their dispatch, located the subject vehicle stopped in a lane of traffic. The keys of the vehicle were in the ignition, and the motor was running. The defendant, being the sole occupant of the vehicle, sat asleep behind the steering wheel. One of two paramedics turned off the vehicle motor and removed the keys from the ignition while the other awoke the defendant who agreed to go with them to the ambulance to be checked out. The paramedic removed the keys from the ignition for safety reasons as he did not want the defendant driving off upon being awoken, before determining that he was medically fit to drive. (b) As the defendant and the two paramedics walked to the ambulance, the police officer arrived and asked the defendant whether he had been drinking. The defendant said no, he was merely tired. The officer did not smell alcohol. The paramedic gave the vehicle keys to the police officer. The defendant entered the ambulance and the two paramedics checked Mr. Donnelly’s vital signs, blood, and tested him with a cardiac monitor. The medical tests results were not remarkable. (c) One of the paramedics noted a fruity alcohol smell to the defendant. The paramedic who noted the fruity smell of alcohol from the defendant testified that the two paramedics were in the ambulance with Mr. Donnelly for two minutes checking his vital signs when the police officer, on her own initiative, opened the ambulance door and entered. The same paramedic recalled talking to the police officer in the ambulance. The officer testified that she was outside the ambulance when the paramedic reported to her that they could smell alcohol and for that reason, the officer entered the ambulance. (d) Upon the officer entering the ambulance, the paramedics no longer had any medical concerns regarding Mr. Donnelly and they accordingly stood by while the officer took charge of the defendant. (e) Upon the police officer entering the ambulance, she could smell alcohol and again asked the defendant if he had been drinking, to which Mr. Donnelly replied that he had had two beers a while ago. (f) As to the credibility of the police officer, the trial judge held that the officer may have been confused as to her recollection whether the paramedic communicated his observation regarding the smell of alcohol on the defendant before or after the officer entered the ambulance. The court rejected any suggestion the officer gave false evidence. (g) The demand was read four minutes after her arrival on scene. It was demonstrated four minutes after that and administered immediately thereafter, resulting in a fail, which indicated to Cst. Schultz that the defendant had more than 100 milligrams of alcohol per 100 millilitres of blood. R. v. Donnelly Kane J. 43

Grounds of Appeal 3 The appellant argued that the learned trial judge erred in holding that: (a) The arresting officer had authority to demand an approved screening device sample pursuant to s.254(2), and specifically, that the trial judge erred in concluding that the appellant was in care or control when the screening device demand was made, (b) In the absence of statutory authority for the screening device demand, the trial judge erred in holding that ss. 8 and 9 of the Charter were not breached, (c) The appropriate and just remedy for the breaches of ss. 8 and 9 of the Charter was to exclude the breath test results pursuant to s.24 (2) of the Charter, which the trial judge failed to do.

Defence Argument at Trial 4 The first argument by the defence was that the demand was invalid since the defendant had surrendered control of the vehicle. 5 In response to this argument, the trial judge held: First, on the facts of this case, there was a potential for the defendant to resume driving or maintain care or control of his vehicle right up to the time when the paramedics had completed their examination of him Mr. Tessier testified that the vehicle keys had been removed essentially for safety reasons. They did not want to awaken the driver and have him drive off before it was determined that he was medically fit. Since their examination disclosed nothing remarkable with his vital signs and he was able to communicate with them, there is a strong possibility that his keys could have been returned to him and he could have returned to his vehicle had it not been for the intervention of the police at that point. 6 Justice Wake then reviewed R. v. Sriskanthadevan (2007), 52 M.V.R. (5th) 264 (Ont. C.J.), a decision relied upon heavily by the defence at trial and on this appeal. In that case the trial judge found that the statutory prerequisite for a demand had not been met since care and control of the vehicle had ended well before the ASD demand. Justice Wake quotes paragraph 35 of that decision in which the court notes that a CPIC check by the officer would reveal that the defendant was prohibited from driving and but for that fact, the court in Sris- kanthadevan states that that defendant’s cessation of driving may not have been a foregone conclusion and his care and control of the motor vehicle within the meaning of s. 254(2) of the Criminal Code may not have been terminated due to the police investigation. The court in Sriskanthadevan then stated that if there had been any potential for that defendant to have resumed driving or maintained care and control of his car, the requirements of s. 254(2) may have been met. Justice Wake thereupon states that he found that the potential for resumption of 44 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

driving was present, so that care and control had not ended before the ASD demand was made. 7 As to the time lapse between the officer arriving on scene and the time of the demand, Justice Wake then reviewed and found similarities between the case against Mr. Donnelly and the defendant in R. v. Brittain, [2000] S.J. No. 442 (Sask. Q.B.). That defendant, like Mr. Donnelly, had initially denied consumption of alcohol to the police officer. The court in Brittain held that the officer who later detained Ms. Brittain in the police car had been “misled” by her prior denial of alcohol consumption and the smell of perfume and accordingly, the delay of twelve minutes in that case to the time of the demand did not “move such demand outside the parameters of s. 254(2) so as to render it unlawful. 8 Justice Wake then notes Mr. Donnelly’s initial denial to consuming alcohol, that he was merely tired. In those circumstances, the trial judge held that the four minutes delay from the time Mr. Donnelly left his vehicle and the officer’s arrival on the scene, to allow the paramedics to determine his medical condition until the demand, did not move the demand outside the parameters of s. 254(2) so as to render it unlawful. 9 The appellant takes the position that: (a) The time period between the arrival of the officer and the communication of the demand to Mr. Donnelly is not critical and only one factor to consider, (b) Whether the officer had the requisite subjective belief that the Appellant had alcohol in his body as required for a valid approved screening device demand is not in issue. 10 The appellant argues that the trial judge misinterpreted R. v. Sriskanthadevan by failing to consider whether there was a break in care or control before the screening device demand was made and instead focused on whether there was some possibility the appellant would later be in a position to resume care or control. An inquiry into whether care or control could be resumed it is submitted means that the learned trial judge missed the key question, namely, had there been a break in care and control. 11 In Sriskanthadevan, the defendant was observed by an officer driving through a red light. The defendant stopped his vehicle, got out at the request of the officer, was hand cuffed and then placed under arrest for dangerous driving and seated in the police cruiser. No alcohol odour had been detected by the officer until after being told by passengers that the defendant had been drinking and the officer re-entering his cruiser and smelling alcohol. The defendant admitted to one drink. The officer conducted sobriety tests on the defendant and thereupon formed the impression that there was alcohol on the defendant’s body. The screening demand was thereupon communicated, then performed, producing a failed result and the defendant was thereupon charged for driving over 80 milligrams of alcohol. R. v. Donnelly Kane J. 45

12 The court in Sriskanthadevan: (a) States that the mere fact that Mr. Sriskanthadevan was not in the vehicle or in “actual” physical care and control at the time of the demand is not determinative. (para. 11) (b) Quotes from the decision of Morden J.A., in R. v. Campbell, [1988] O.J. No. 1652 (Ont. C.A.) that the word “is” (and therefore has) in s. 254(2) can and should have some degree of past signification in order to not defeat the purpose of the section and avoid an absurd result, such as a driver running away for the car or throwing his keys into an adjoining field. (para. 13) (c) States that just how much past signification is possible, while still fulfil- ling the intent of s. 254(2), will depend on the unique facts of individual cases. As a rubric, Morden J. A., in Campbell, supra, stated: “I do not think that the justifiable time lapse after the actual’ care and control has ended should be longer than is reasonably necessary to enable the police officer to carry out his or her duties under the provision. In other words, the demand should be made as soon as is reasonably possible in the circumstances.” (para. 14) (emphasis added) (d) Mr. Sriskanthadevan’s situation was analogous to the defendant Camp- bell who was arrested at the scene, taken to the police station and only then received the demand. Mr. Sriskanthadevan by the time the demand was made, had already been arrested for dangerous driving, handcuffed and detained in the back of the police cruiser with no prospect of continuing to drive as a CPIC check was inevitable which would reveal his prohibition against driving. (paras. 21 and 22) (e) CPIC records indicating that Mr. Sriskanthadevan was prohibited from driving made this case unique. But for that, the defendant’s cessation of driving may not have been a foregone conclusion and his care and control of the motor vehicle within the meaning of s. 254(2) of the Criminal Code may not have been terminated due to the police investigation. Put another way, if there had been any potential for Mr. Sriskanthadevan to have resumed driving or maintain care and control of his car, the requirements of s. 254(2) may have been met. (para. 35) 13 Undeterred by the above provisions in Sriskanthadevan, supra, Mr. Don- nelly points to that court’s distillation of the cases therein argued and its identification of three factors as to whether an individual who is no longer in literal, “actual” care and control of a motor vehicle at the time of the demand, still falls within the ambit of s. 254(2), namely: (a) Lapse of time between the operation or care and control of the vehicle and the demand; 46 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

(b) Whether the lapse of time is reasonably necessary to enable the police officer to carry out their duty under the provision; and (c) Whether the facts show the accused’s driving was at an end at the time the demand was made. 14 The appellant argues that these three factors are the legal test or analysis required to be performed by a trial judge in the review of the evidence. It is submitted that the judge in his decision under appeal, failed to conduct an analysis as to points 2 and 3. 15 The appellant argues that Sriskanthadevan and other cases, stand for the principle that police can effectively break care or control of a motor vehicle so that any subsequent demand under s. 254(2) is invalid. Those other cases include the following: (a) In R. v. Antonio, [2006] O.J. No. 938 (Ont. S.C.J.), the accused was arrested, handcuffed and sat in the back of the police car for 20 minutes awaiting a tow truck before a second s.254 (2) demand was made. (b) The court in R. v. Freake, [2007] O.J. No. 1763 (Ont. C.J.), found that the driver followed the officer’s request to drive behind him to the detachment office, then parked there as directed, left the keys in the car and then accompanied the officer into the detachment office where the demand was made. That court held that notwithstanding the principle of past signification, the accused had thereby abandoned care and control as she sat in that office at the time of demand and was not therefore close to her car or keys. Mr. Freake, unlike Mr. Donnelly, had been following the direction of the officer for almost 20 minutes on an unrelated matter, prior to the breath demand. Neither of these elements exists in this case. (c) In R. v. MacLellan (1984), [1983] N.B.J. No. 766 (N.B. Q.B.), there was no evidence that the accused had been driving or had care and control of the vehicle. The officer only observed him leaning against and outside of the vehicle. Past signification is not referred to in that decision. (d) There is no analysis or reasons for the conclusion of no care and control, nor reference to the principle of past signification in R. v. Larose, [1996] O.J. No. 2251 (Ont. Gen. Div.)). (e) The court in R. v. Nimeth, [2002] O.J. No. 5644 (Ont. S.C.J.), affirmed: [2003] O.J. No. 508 (Ont. C.A.) held that because there was no evidence as to when the car had last been driven, the fact the accused was not in the car when the officer arrived, the whereabouts of the car keys was unknown and the screening sample was performed in the cruiser and not roadside, determined that care and control had not been proven. 16 The officer in the case before Justice Wake did not stop, detain, handcuff, arrest or direct Mr. Donnelly to go anywhere. The officer was given car keys by a third party. She did not take them from the defendant or his vehicle. R. v. Donnelly Kane J. 47

Scope of Review on Appeal and Deference 17 The Supreme Court in R. v. B. (R.H.), [1994] S.C.J. No. 30 (S.C.C.), para.134, R. v. Biniaris, [2000] 1 S.C.R. 381 (S.C.C.), para. 24, R. v. S. (P.L.), [1991] S.C.J. No. 37 (S.C.C.), paras. 7 and 8 and R. v. Fran¸cois, [1994] S.C.J. No. 66 (S.C.C.), para. 16, and R. v. Najm, [2006] O.J. No. 2348 (Ont. C.A.), articulates the task and level of review of this court to be: (a) Whether the judge could reasonably have reached the conclusion he or she did on the evidence. (b) The court on appeal is entitled to review the evidence, re-examining it and reweighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion. (c) Witness credibility must be left to the trial judge. Unless the record reveals an error of law or in principle or a clear and manifest error in the appreciation of the evidence, a court of appeal should not intervene in that determination. (d) Triers of fact have considerable leeway in their appreciation of the evidence, the proper inferences to be drawn there from and their assessment of whether the Crown’s case is made out beyond a reasonable doubt. Reasonable differences of opinion on factual issues are not reversible on appeal. All factual findings made by the trier of fact are owed deference, except unreasonable ones embodied in a legally binding conviction. Rea- sonable people may disagree about their appreciation of the facts. A conviction however is not something about which reasonable people may disagree. A conviction cannot be unreasonable, except as a matter of law, in which case it must be overturned. (e) Subject to this threshold test of whether the evidence is capable of supporting the trier’s conclusion, the reviewing court may not substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial. (f) If the appellant court disagrees with the verdict, it may not set aside that verdict if, on the evidence, there is a reasonable basis for the verdict and legal rules have been observed in the trial. (g) The appellant court cannot substitute its opinion for that of the trial court that the evidence proves guilt beyond a reasonable doubt because the accused is entitled to that decision from a trial judge who has all the advantages so often conceded to belong to the trier of fact. The exception to this rule is when, on an acquittal, the evidence is so overwhelming that a trier of fact would inevitably convict. (h) If the appellant court finds an error of law, with the result that the legal rules have not been observed during the trial, the accused is then entitled to an acquittal or a new trial. 48 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

(i) A summary conviction appeal judge is not entitled to retry the case in the absence of error on the part of the trial judge. The question on appeal is, did the trial judge apply the correct test and take the proper factors into account? (j) A trial judge’s determination whether to exclude or allow in evidence under s. 24(2) of the Charter is entitled to deference, if that judge considered all the relevant factors.

Risk of Resuming Driving and Past Signification 18 The trial judge determined culpability after examining the facts, both on the basis of risk of resuming and past signification. In his decision, Justice Wake concluded that the officer was entitled to enter the ambulance as occurred and speak to the paramedics and the defendant to determine what was to be done with the defendant’s car as it sat in a lane of traffic. The trial judge inferred on the facts that, had the officer not smelled alcohol upon entering the ambulance, she had a right or need to enter the ambulance to answer these questions, namely: (a) Was the defendant able to resume operation of the vehicle? (b) Was it necessary to have the vehicle towed? (c) Or was there someone else who could pick up the vehicle? The above conclusion on these facts seems obvious. 19 On the facts Justice Wake found that the paramedics had removed the keys from the ignition to prevent the defendant from waking and then driving off until they concluded their testing of him to confirm whether there were medical conditions to prevent such resumption of driving. Justice Wake found on the evidence that the paramedics on testing had found no medical impairment of the defendant and thereupon allowed the office to assume direction as there was no further medical treatment required. 20 But for the officer being told about and then smelling alcohol, there was no medical reason to delay the defendant who therefore had the ability and associated risk of receiving his keys and resuming care and control of his vehicle. The trial judge concluded that at the conclusion of the paramedics’ tests, there were no medical issues and therefore a strong possibility that the defendant’s keys would be returned to him. This possibility is reasonably supported by the evidence. Accordingly, the potential for Mr. Donnelly to resume driving or care and control of his vehicle before the ASD demand was made, is a reasonable conclusion based on these facts. 21 The inference drawn by the judge as to the information needed upon this officer entering the ambulance and the potential of this defendant resuming control of his vehicle, are not unreasonable and are inferences from the facts within the scope of deference owed on appeal. The conclusion by the trial judge that R. v. Donnelly Kane J. 49

care and control on these facts had been established by the Crown are consistent with and not an error in law within the context of principles set forth in the decisions of the Ontario Court of Appeal in Campbell, supra, R. v. MacPherson, [2000] O.J. No. 4777 (Ont. C.A.), R. v. Wren, [2000] O.J. No. 756 (Ont. C.A.), at para. 16 and R. v. Vansickle, [1990] O.J. No. 3235 (Ont. C.A.), as well as the trial decision in Sriskanthadevan, supra. 22 The Court of Appeal in R. v. MacPherson, supra, held that the defendant, although standing outside the vehicle when the police arrived on scene, was, for the purpose of s. 254(2), in care and control as she was the sole occupant and was driving the vehicle at the time of the collision. 23 In order to establish care and control, the Court of Appeal in R. v. Wren, supra, at para. 16, held that the conduct of the accused in relation to the motor vehicle must be such that there is created a risk of danger, whether from putting the car in motion or in some other way. 24 The same court in R. v. Vansickle, supra, held that s. 254(2) was intended to prevent a danger in relation to care and control of a vehicle, which under s. 254(2) was held to exist even though the vehicle, with a blown clutch, was inoperable under its own power. That vehicle had been moved by the driver onto the highway before becoming inoperable where the driver then consumed alcohol and listened to music sitting behind the wheel in a blinding snow storm. 25 The appellant’s argument ignores the last of the sentences on page 4 in Campbell, supra, as bolded in paragraph 13(c) above. It is the surrounding circumstances which must be considered in considering the time between the arrival of police, how long has it been since the defendant was driving or had care and control of the vehicle and the demand being made. Restricting past signification solely to the performance of the officers’ duties under s. 254(2), renders this broader final sentence meaningless. 26 Justice Wake’s deliberations and conclusion about the likely resumption of Mr. Donnelly driving or care and control of his vehicle, having been cleared of any medical reason against driving, is not missing the central issue as Mr. Don- nelly argues. 27 Justice Wake’s conclusion, supported by the evidence, was that Mr. Don- nelly’s four minute exit from his car for medical observation and his resumption of driving but for the alcohol indicators observed, (a) Did not take his case outside of past signification as per Campbell, supra, or; (b) Created the risk of him resuming driving or taking control, met the requirements of s. 254(2) as expressed in the alternative in paragraph 35 of 50 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

Sriskanthadevan, being the principal decision relied upon by the appellant on this appeal. 28 Justice Wake specifically reviews this alternative approach coming from Sriskanthadevan, supra, in detail at pages 4 and 5 of his reasons. 29 Rather than ignoring whether care and control had not ended, Justice Wake at the top of page 6 of his reasons concludes: In this case I have found that the potential for resumption of driving was present so that care and control had not ended before the ASD demand was made. 30 This imminent risk to drive or take control of a car approach, is sufficient for s. 254(2), and is the risk or potential danger referred to in R. v. Wren, supra, at paras. 15 and 16 (O.C.A.) and R. v. Vansickle, supra, at para. 1 (O.C.A.). 31 Mr. Donnelly’s care and control of the vehicle, with the context of past signification, was not terminated by the police action whether in the form of arrest restraint or seizure by police of his car keys. 32 Although he does not use that phrase, Justice Wake examines the facts in light of the principle of past signification and determined that care and control existed for the purposes of s. 254(2) at the time of the demand when he states at page 7 of his reasons: ...and the time of the ASD did not, in my view, “move to demand outside the parameters of s. 254(2) so as to render it unlawful. 33 The parameters of that section are the present tense wording of the section, plus the time reasonably required and permitted as per Campbell, supra. 34 The trial judge found a breach of this section on the facts both within the concept of past signification and imminent risk of taking care and control. 35 I find no error that these facts do not support either conclusion. Similarly, I do not find that the trial judge made any error in law. I would therefore dismiss this appeal.

Section 24(2) of the Charter 36 Notwithstanding my above decision to dismiss this appeal, the appellant and the respondent requested me to decide whether the trial judge’s decision under the Charter to admit the evidence of alcohol blood testing even if he had concluded that the demand was invalid under s. 254(2), is in error. 37 The appellant argues that while the obiter comments of this trial judge as there being no breach under the Charter, are entitled to deference on appeal of a s. 24(2) issue, Mr. Donnelly submits that the trial judge conducted the superflu- ous s.24(2) analysis only in the context of having found no Charter breaches. There are no cases reported it is argued where a trial judge, having found no breaches, nevertheless went on to comment that, if the Court was wrong on the R. v. Donnelly Kane J. 51

issue as to care and control under s. 254(2), the subsequent testing evidence demonstrating impairment, should not be excluded under s. 24(2) of the Charter. 38 The appellant argues that: (A) In characterizing any breach in this case as minor, the trial judge failed to appreciate that the conduct of the officer was unlawful owing to the officer’s ignorance of the law at the time she made the demand for the screening device. (B) The seriousness of the breach, including Mr. Donnelly being placed in custody, taken to a police station, suspension of his driving privileges for three months, demonstrates the serious consequences of the breach and dictate that the testing evidence demonstrating impairment be excluded. (C) Breath test results are highly reliable evidence. Their exclusion makes a conviction impossible. All factors in s. 24(2) of the Charter must be balanced. Where an untrained police officer breaches a Charter right out of ignorance and illegally obtains evidence because of that negligence, the long-term impact on the administration of justice would suffer if that evidence was admitted and therefore should be excluded in the present case. 39 The trial judge stated that in application of the principles in R. v. Grant, [2009] S.C.J. No. 32 (S.C.C.) he decided that the breach in this case would be minor as: (a) The officer did not mislead the court in her evidence as to whether the paramedic said he smelled alcohol on the appellant her before or after the officer entered the ambulance. (b) The likelihood that the paramedic revealed his smelling alcohol to the officer after she entered the ambulance, was not problematic as the officer was entitled to enter the ambulance and speak to the appellant and paramedics to determine what was to be done with the stopped vehicle in the live lane of traffic, including the ability to drive or the need of another driver or the need of a tow truck resulted in this being a reasonable line of inquiry. Although this intention was not in evidence, the judge inferred this would have occurred but for the sensory detection of alcohol upon entering the ambulance. (c) Earlier in the decision, the trial judge found the officer’s evidence defi- cient in her inability while testifying to state the lawful basis for making an ASD demand. 40 The Supreme Court in Grant, supra, at paras. 79, 81 and 84, stated that 79 Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society’s “collec- 52 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

tive interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law”: R. v. Askov, [1990] 2 S.C.R. 1199, at pp. 1219-20. Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence. 81 This said, public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neither the accused’s interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute...... 84 It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue. Indeed, Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society’s interest in its prosecution (para. 226). In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus. As pointed out in Burlingham, the goals furthered by s. 24(2) “operate independently of the type of crime for which the individual stands accused” (para. 51). And as Lamer J. observed in Collins, “[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority” (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above re- proach, particularly where the penal stakes for the accused are high. 41 The judge held that case law is quite clear that an inability on the part of a police officer to articulate the basis for making an ASD demand is not fatal to a determination that s. 254(2) has been complied with. The trial judge in support of this conclusion relied upon R. v. Subramaniam, [2004] O.J. No. 226 (Ont. S.C.J.) and R. v. Clarke, [2000] O.J. No. 804 (Ont. S.C.J.). The trial judge then concluded that when a person says to another person that a third person has been R. v. Donnelly Kane J. 53

drinking, it is a common sense inference that the person who made the observation believes that the third person has alcohol in his body. 42 The trial judge concluded that given that: 1) she was responding to a call that a driver was asleep at the wheel; 2) that upon her arrival, she observed two paramedics leading a person from a vehicle located in a live lane of traffic and whom she correctly presumed had been the driver of that vehicle; and, 3) that upon entering the ambulance, she smelled alcohol from the defendant and received an admission that he had two beers; the requisite belief to make an ASD demand was made out even if the officer failed to say so. 43 The Supreme Court in Grant, supra, stated that good faith conduct, versus deliberate police conduct violating the Charter, will reduce the need of the court to distance itself from that misconduct. The officer’s attention and question was as to whether the appellant had been drinking alcohol. That question was the appropriate question, as was the request to provide a breath sample. Section 254(2) was not breached because the “magic words” were not used by the officer. Given the appellant’s admission to drinking and the smell of alcohol, the officer has the requisite belief or suspicion to make the demand. 44 Unlike the case of R. v. Sergalis, [2009] O.J. No. 4823 (Ont. S.C.J.), argued by the appellant, the officer in the present case did have reasonable grounds to suspect alcohol was in the defendant’s body and did not detain the accused prior to the demand. Unlike the case of R. v. Beattie, [2009] O.J. No. 4121 (Ont. C.J.), the judge in the present case found that the time of the officer’s arrival to the demand was 4 minutes and not 20 minutes after being detained by police. This officer also advised the appellant as to his rights to counsel after providing a fail breath sample and being arrested. 45 In direct contradiction to the argument of the appellant, the decision in R. v. Stillman, [1997] S.C.J. No. 34 (S.C.C.), para. 90, R. v. Wilding, [2007] O.J. No. 4776 (Ont. C.A.), para. 8, R. v. Fildan, [2009] O.J. No. 3604 (Ont. S.C.J.), para. 51, stand for the authority that breath samples are minimally intrusive, essential to control the societal problem of drinking and driving, are entirely reliable and therefore mitigate in favour of inclusion. The judge under appeal found the intrusion minimal, that the officer did not mislead the court and society had an interest in the matter going to trial. 46 The trial judge’s deliberation and decision of the s. 24(2) Grant factors is an application of the correct test. As stated in Najm, supra, I do not have the jurisdiction to retry this part of the decision and come to a different conclusion. I do not in any event disagree with the trial judge’s analysis or his s. 24(2) conclusion. 47 The above case law in my opinion defeats the arguments of the appellant that; (a) This is a serious breach of and impact on Charter established rights. 54 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

(b) The courts must distance itself from this officer’s ignorance or inability to articulate the grounds under s. 254(2). (c) That the good faith of the officer is irrelevant in a s. 24(2) analysis. 48 The trial judge’s analysis of the evidence reasonably entitled him to come to the conclusions he did in this part of the decision. I find no error of law as to his interpretation of the law on the facts before him. The trial judge reviewed and applied the correct test. He took the proper factors into consideration. His determination therefore to not exclude the testing results evidence under s. 24(2) of the Charter is entitled to deference. 49 For the above reasons, I dismiss Mr. Donnelly’s appeal to exclude this evidence under the Charter. Appeal dismissed. Jennings v. Doe 55

[Indexed as: Jennings v. Doe] Robert Alan Jennings (Plaintiff) and John Doe, Jane Doe and Insurance Corporation of British Columbia (Defendants) British Columbia Supreme Court W.G. Baker J. Heard: October 7-8, 2010 Judgment: November 10, 2010 Docket: New Westminster M123836, 2010 BCSC 1595 John S. Arnold for Plaintiff Jacob R. Parkinson for Defendant Torts –––– Negligence — Contributory negligence — Ultimate negligence — Appli- cation to particular situations — Automobile accidents –––– Plaintiff insured was injured in motor vehicle accident on October 7, 2008 — Insured alleged that negligence of unidentified driver of tractor-trailer crossing into insured’s lane caused insured to drive off road and hit hydro pole — Defendant Insurance Corporation of British Columbia (insurer) alleged accident was single vehicle accident caused by insured’s negligence — In- sured brought action against unidentified driver and Insurance Corporation of British Co- lumbia regarding liability for motor vehicle accident — Action allowed — Accident was caused solely by negligence of driver of tractor-trailer who entered insured’s lane of travel when it was unsafe to do so — Insured was not negligent as nothing done by or omitted to be done by insured made any difference to outcome — Judge accepted insured’s version of how accident occurred — Insured and his father were credible witnesses — Evidence established there was physical damage to insured’s vehicle present after accident — It was unlikely that damage to vehicle was caused by contact with hydro pole — Insured reported existence of unidentified vehicle as soon as reasonably possible to police and to insurer. Insurance –––– Automobile insurance — Unidentified motorist — Duties of insured –––– Plaintiff insured was injured in motor vehicle accident on October 7, 2008 — Insured alleged that accident was caused by negligence of unidentified driver of tractor- trailer — Defendant Insurance Corporation of British Columbia (insurer) alleged insured did not make reasonable efforts to find unidentified driver — Insured brought action against unidentified driver and Insurance Corporation of British Columbia regarding liability for motor vehicle accident — Action allowed — Insured made “all reasonable efforts” to ascertain identity of driver or owner of tractor-trailer — Identities of unknown driver and owner were not ascertainable — Insured’s father unsuccessfully searched for tractor-trailer soon after accident — Insured reported existence of unidentified vehicle as soon as reasonably possible to police and to insurer — Police thought there was so little prospect of identifying driver they were not prepared to allocate police resources to matter — There were no witnesses present at time of accident — Insured was led to believe that his report had been believed by insurer — Insurer relied on incomplete and inaccu- 56 MOTOR VEHICLE REPORTS 4 M.V.R. (6th) rate police report to challenge insured’s version — Police accident report was filed without confirming facts with insured. Insurance –––– Automobile insurance — Unidentified motorist — Involvement of government insurance corporation — General principles –––– Liability. Cases considered by W.G. Baker J.: Becker v. Insurance Corp. of British Columbia (2002), 41 C.C.L.I. (3d) 281, 2002 BCSC 1106, 2002 CarswellBC 1846, 26 M.V.R. (4th) 64, 4 B.C.L.R. (4th) 154, [2002] B.C.J. No. 1794 (B.C. S.C. [In Chambers]) — referred to Cunningham v. Slubowski (2003), 2003 BCSC 1979, 2003 CarswellBC 3328 (B.C. S.C.) — referred to Dewart v. Insurance Corp. of British Columbia (2005), 31 C.C.L.I. (4th) 66, 2005 BCSC 1293, 2005 CarswellBC 2227, 28 M.V.R. (5th) 44, [2005] B.C.J. No. 2047 (B.C. S.C.) — referred to Fan v. John Doe (2009), 2009 BCSC 568, 2009 CarswellBC 1096 (B.C. S.C.) — referred to Filsinger v. Insurance Corp. of British Columbia (2009), 2009 CarswellBC 442, 2009 BCSC 232, 71 C.C.L.I. (4th) 31, [2009] B.C.J. No. 331 (B.C. S.C.) — referred to Gill v. Insurance Corp. of British Columbia (2007), 2007 BCPC 49, 2007 CarswellBC 501 (B.C. Prov. Ct.) — referred to Goncalves v. John Doe (2010), 2010 CarswellBC 2332, 2010 BCSC 1241, [2010] I.L.R. I-5034 (B.C. S.C.) — referred to Grant v. Slater (2001), 2001 CarswellBC 2487, 2001 BCSC 1409, 38 C.C.L.I. (3d) 102, [2001] B.C.J. No. 2326 (B.C. S.C. [In Chambers]) — referred to Hocaluk v. Insurance Corp. of British Columbia (2007), 45 C.C.L.I. (4th) 228, [2007] I.L.R. I-4579, 2007 CarswellBC 257, 2007 BCSC 170, 43 M.V.R. (5th) 288, 69 B.C.L.R. (4th) 360 (B.C. S.C.) — referred to Hough v. John Doe (2006), 2006 BCSC 1450, 2006 CarswellBC 2420, 42 C.C.L.I. (4th) 230 (B.C. S.C.) — considered Ingram v. Insurance Corp. of British Columbia (1994), 1994 CarswellBC 293, 93 B.C.L.R. (2d) 267, 45 B.C.A.C. 218, 72 W.A.C. 218, 25 C.C.L.I. (2d) 268, [1994] B.C.J. No. 1199 (B.C. C.A.) — considered Leggett v. Insurance Corp. of British Columbia (1992), 72 B.C.L.R. (2d) 201, 18 B.C.A.C. 281, 31 W.A.C. 281, 96 D.L.R. (4th) 123, 11 C.C.L.I. (2d) 10, 1992 Car- swellBC 295, [1992] B.C.J. No. 2048 (B.C. C.A.) — referred to Mattu v. Insurance Corp. of British Columbia (1998), 52 B.C.L.R. (3d) 272, 107 B.C.A.C. 187, 174 W.A.C. 187, 1998 CarswellBC 1056 (B.C. C.A.) — referred to Nelson v. Insurance Corp. of British Columbia (2003), 2003 BCSC 121, 2003 Car- swellBC 144, 45 C.C.L.I. (3d) 259, [2003] B.C.J. No. 154 (B.C. S.C.) — referred to Palmer v. John Doe I (2005), 2005 ABQB 176, 2005 CarswellAlta 338 (Alta. Q.B.) — referred to Stanley v. Insurance Corp. of British Columbia (2004), 19 C.C.L.I. (4th) 155, 2004 Car- swellBC 3046, 2004 BCSC 1697 (B.C. S.C.) — referred to Vanderbyl v. Insurance Corp. of British Columbia (1993), 79 B.C.L.R. (2d) 156, [1993] 6 W.W.R. 725, 1993 CarswellBC 123, [1993] B.C.J. No. 1007 (B.C. S.C.) — considered Jennings v. Doe W.G. Baker J. 57

Warder v. Insurance Corp. of British Columbia (1993), 1993 CarswellBC 1717 (B.C. S.C.) — referred to Statutes considered: Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 Generally — referred to s. 24 — referred to s. 24(5) — considered Rules considered: Rules of Court, 1990, B.C. Reg. 221/90 App. B, s. 2(2)(b) — referred to

ACTION by insured against unidentified driver and Insurance Corporation of British Co- lumbia regarding liability for motor vehicle accident.

W.G. Baker J.:

1 As previously order by Justice Schultes, this trial proceeded on the issue of liability only. On October 7, 2008, the plaintiff was injured when his Toyota pick-up truck left the travelled portion of the Trans-Canada Highway (“the highway”) and struck a hydro pole in the adjacent ditch. The plaintiff alleges that the accident was caused by the negligence of the unidentified driver of a tractor- trailer unit which crossed into his lane of travel, forcing his vehicle to leave the roadway. 2 The defendant Insurance Corporation of British Columbia (“the Insurer”) says that Mr. Jennings’ injuries resulted from a single vehicle accident caused by Mr. Jennings’ own negligence; that if there was a second vehicle involved Mr. Jennings caused or contributed to the accident by his own negligence; and finally that Mr. Jennings failed to take all reasonable steps to identify the driver of the tractor-trailer unit and is therefore disentitled to compensation for his injuries received in the motor vehicle accident, pursuant to s. 24(5) of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231.

Facts 3 Robert Jennings was 18 years old in October 2008. He had graduated from high school in June; and was employed at a ranch located at 70 Mile House in British Columbia. Mr. Jennings’ family have a cottage near 70 Mile House and Mr. Jennings was residing at the family cottage. Presently Mr. Jennings is 20 years old and an apprentice carpenter. 4 October 7, 2008 was a Tuesday. Mr. Jennings had been at his parents’ home in Maple Ridge on the weekend in order to attend an engagement party for his sister and her fianc´e’. He had remained in the Lower Mainland Monday in order to celebrate the anniversary of his second year of dating his girlfriend. He slept 58 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

well on Monday evening and had not consumed alcohol for 24 hours prior to departing from his parents’ home at about 7:00 a.m. on Tuesday, October 7 and had not consumed any drugs. He was not in a hurry and was not expected to be at work that day. Mr. Jennings had his dog “Scout” with him. The dog was sleeping on the front passenger seat of Mr. Jennings’ truck. 5 Mr. Jennings testified that the sky was overcast when he left his parents’ home but that as he headed north there was very light rain - he said it was “sprinkling” - requiring intermittent windshield wiper use. Mr. Jennings said the road was “damp” - I understood him to mean that there was not enough precipitation to cause water to stream or pool on the roadway. Mr. Jennings was driving his 1995 Toyota Tacoma pick-up truck, which he had purchased from a previous owner. The vehicle was in good mechanical condition and well-maintained. 6 Mr. Jennings was employing the vehicle’s cruise control. The speed limit on the relevant portion of the TransCanada Highway is 90 kph; Mr. Jennings had set the cruise control at 94 kph. The evidence does not establish that this was an unsafe speed for the road conditions prevailing at the time. Mr. Jennings testified that traffic was not heavy. 7 Mr. Jennings was northbound on the TransCanada Highway. He was very familiar with the highway having driven it, accompanied by his parents, when he had a driver’s learner’s permit; and by himself since obtaining his driver’s licence. He had also been a passenger on that highway many, many times, travelling to and from his family’s cottage near 70 Mile House and also to another family-owned residence at Sun Peaks Mountain. 8 By approximately 9:30 a.m., Mr. Jennings was north of the community of Boston Bar and was nearing the south slope of Jackass Mountain. For approximately two to three miles of the approach to Jackass Mountain the highway has four lanes of travel - two for southbound vehicles, and two for northbound vehicles. The two northbound lanes continue to the point that the highway begins to level out at the top of the Mountain, and then merge into one lane. 9 The evidence indicates that in assessing and rejecting Mr. Jennings’ claim for compensation for his injuries, at least one representative of the Insurer had incorrectly assumed that the accident happened at a location much further up Jackass Mountain than the actual location. I am satisfied that Mr. Jennings and his father have correctly identified the location of the accident and that that location is confirmed by photographs taken by Mr. Jennings, Sr. on the day of the accident, and a videotaped recording made by Mr. and Mrs. Jennings, Sr. on a subsequent date. I conclude that at the location where the accident happened there are two northbound lanes and two southbound lanes. 10 Before the events began that culminated in Mr. Jennings’ collision with a hydro pole, Mr. Jennings was driving in the northbound lane closest to the centre line; sometimes referred to as the “fast lane”. The videotape made by Mr. Jennings’ father and mother indicate that there are road signs advising drivers to Jennings v. Doe W.G. Baker J. 59

“Keep Right Except to Pass”. Mr. Jennings testified that there are often large trucks on the highway; that the highway grade as the road ascends Jackass Mountain is very steep; that large trucks have difficulty maintaining speed as the grade steepens and lengthens and that it is often necessary to pass the slower vehicles by utilizing the left hand lane. Mr. Jennings’ father, Bradley Jennings, testified to the same effect. He said that by the time large trucks reach the top of the grade; they are often geared down and moving very slowly. 11 I am not persuaded that Mr. Jennings was negligent in choosing to drive in the fast lane in the circumstances despite the road sign directing drivers to occupy the slow lane except when passing, and I am satisfied that the fact that Mr. Jennings was initially driving in the fast lane did not cause or contribute to the collision. 12 Mr. Jennings testified that at a time when there was no other traffic in the vicinity he became away that a large northbound tractor-trailer had approached from behind him and was quickly closing the gap between the two vehicles. He perceived the tractor-trailer unit to be travelling at high speed - perhaps as fast as 120 to 125 kph. He saw that the tractor was blue, with a Kenworth logo, and that it was pulling a white trailer. Mr. Jennings agreed in cross-examination that although he did not count the wheels, he would describe the vehicle as an “18 wheeler”. 13 Mr. Jennings’ testimony on discovery indicates he did not see the tractor- trailer unit until it was fairly close to his vehicle. He was asked to provide an estimate of the distance between the two vehicles on examination for discovery and did so, but his evidence on discovery and at trial indicates he was not confi- dent in the accuracy of his estimate and I conclude it was little more than a guess. Estimating the distance between vehicles, particularly those travelling at speed, is a difficult task and any apparent inconsistency in Mr. Jennings’ testimony does not cause me to doubt his credibility. 14 Mr. Jennings testified that when he saw the tractor-trailer coming up fast behind him, he activated his right turn signal and moved into the right, or slow, lane of travel, expecting the larger vehicle to pass on his left. 15 As the tractor-trailer unit began to pass him, however, Mr. Jennings saw that the passing vehicle’s trailer tires were crossing over the line dividing the two northbound lanes and that the trailer was swaying. He reduced the speed of his vehicle utilizing his cruise control deceleration lever and steered his own vehicle closer to the right side of the slow lane. However, as the tractor-trailer unit proceeded to overtake his vehicle, the unit continued to move to the right, into Mr. Jennings’ lane of travel, eventually entering the lane fully, leaving no space for Mr. Jennings’ vehicle and forcing him to steer onto the paved shoulder, and then the gravel shoulder and then into the ditch. As his vehicle entered the ditch, the front of his truck struck the base of a hydro pole. 60 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

16 These events happened very quickly. Mr. Jennings considered trying to slow his vehicle by braking, but by that time the passenger side wheels of his truck were on the soft gravel shoulder and he was afraid that braking would cause the tires to dig into the shoulder and propel his vehicle into the ditch. In the circumstances, and considering the limited opportunity Mr. Jennings had to react to the dangerous and unexpected manoeuvre of the tractor-trailer, I am not persuaded that Mr. Jennings’ failure to brake or to cancel his cruise control was negligence. I am also not persuaded that braking earlier or at all, or cancelling the cruise control would have enabled Mr. Jennings to avoid the collision. 17 Immediately prior to the impact, Mr. Jennings felt his vehicle vibrate, as if it had been struck by the passing trailer. He described it as being “nudged” by the trailer. He believes that there was actual contact between his vehicle and the trailer. 18 The front of Mr. Jennings’ pickup truck struck the hydro pole. The impact sheared off the base of the hydro pole, leaving the top of the pole dangling from the overhead hydro wires. At least one wire was knocked to the ground. When his truck collided with the pole, Mr. Jennings’ air bag deployed. He did not lose consciousness. When he came to a stop he was coughing from powder that had come out of the airbag. He saw the tractor-trailer unit disappearing in the distance and was unable to see a licence number. He checked his dog to see if the animal had been injured. He noticed the dangling hydro line and was afraid that it might cause his truck to burst into flames or explode. He tried to open his driver’s side door but realized his left arm was bent behind his back in an unnat- ural way - he believed it was broken. He managed to get the door open with his right arm and got himself and his dog out of the truck. He returned to the vehicle to retrieve some clothing and other possessions. 19 After about 15 minutes, a vehicle approached from the north. The driver stopped but did not get out of his vehicle. He rolled down his car window and asked Mr. Jennings if he needed help. Mr. Jennings told him he had been forced off the road by a truck and that he was injured. The other driver told Mr. Jen- nings he would drive to Boston Bar and notify the police and ambulance; and immediately drove away. It did not occur to Mr. Jennings to ask this individual to give his name. I conclude from the fact that an ambulance did subsequently turn up at the accident location that this individual did as he said he would. 20 Soon after the southbound vehicle departed the scene, three northbound vehicles came up behind Mr. Jennings’ vehicle and stopped. A woman who got out of one of these vehicles gave Mr. Jennings a blanket and tried to comfort him. Someone found a leash for Mr. Jennings’ dog. Another person helped extricate a bag from Mr. Jennings’ vehicle that he had been unable to get because of his injuries. Jennings v. Doe W.G. Baker J. 61

21 An ambulance arrived soon after, with a driver and one attendant. Mr. Jen- nings walked to the ambulance and the ambulance attendants immediately placed him on a stretcher and put the stretcher into the rear of the ambulance. 22 Mark Simon, the ambulance attendant, testified at trial; having earlier responded through his employer to questions provided by plaintiff’s counsel. The ambulance driver who had been with Mr. Simon on October 7 had no recall of the events, so was not asked to testify. 23 Mr. Simon, with the assistance of the notes he had made at the time on the ambulance record, was able to recall the events when he testified at trial. As he noted on the ambulance record, he recalled Mr. Jennings telling him that he had been forced off the road by a tractor-trailer unit consisting of a blue Kenworth tractor and a white trailer. 24 Mr. Simon testified that Mr. Jennings was angry. He noted this emotion in particular because he concluded that it was Mr. Jennings’ anger that was allowing Mr. Jennings to “compensate” for the pain caused by the injury to Mr. Jennings’ arm. Mr. Simon believed that the arm was broken; although x-rays at hospital later proved it to be a double-dislocation rather than a fracture. Because of the severity of the injury, Mr. Simon expected that Mr. Jennings would be experiencing more pain than he was reporting, and also that he would have be- gun to display symptoms of “shock”- changes in blood pressure and heart rate, that were not present. Mr. Simon concluded that what was occurring was a medical phenomenon he called “compensation” and that the anger Mr. Jennings was feeling towards the driver of the tractor-trailer unit was delaying the onset of severe pain and shock-like symptoms. 25 Mr. Simon could not, of course, read Mr. Jennings mind. However, he is a trained observer and the manifestations of anger observed by Mr. Simon are consistent with Mr. Jennings’ assertion that the accident was caused by the actions of another driver. 26 Mr. Simon also confirmed Mr. Jennings’ testimony that Mr. Jennings was anxious to talk to the police about the tractor-trailer unit that had left the scene. Just as the ambulance was about to depart, through the open rear doors of the ambulance, Mr. Jennings and Mr. Simon saw a police car arrive. Mr. Jennings asked to be allowed to speak to police before the ambulance departed, but Mr. Simon told him it was more important to get him to hospital. Mr. Simon said he was anxious to transport Mr. Jennings before he began to “decompensate”. Mr. Simon said that in his experience, the police usually come to the hospital to speak to people involved in an accident and he told Mr. Jennings that he would be able to talk to the police at the hospital. 27 When Mr. Jennings got to the hospital in Hope, x-rays were taken; he was sedated and underwent a procedure to have the two dislocations in his arm corrected, after which the arm was placed in a partial cast. After arriving at hospital, Mr. Jennings had placed a telephone call to his mother - a teacher - at her 62 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

place of work and she left work and drove to Hope. Mr. Jennings was discharged into her care. Contrary to the information Mr. Simon had provided, no police officers came to the hospital to speak to Mr. Jennings. In any event, he had been sedated and was recovering from surgery. 28 I conclude that Mr. Jennings told his mother that he had been forced off the road by a truck and he told her it was a blue Kenworth tractor with a white trailer. I conclude this because Mrs. Jennings Sr. contacted her husband - Brad- ley Jennings - by telephone and conveyed this information and the vehicle description to him. 29 Bradley Jennings had driven to Kamloops that same morning to the location of a building site where he was constructing a home. He had a couple of telephone calls with his wife (the plaintiff’s mother) and then set off to drive to Hope from Kamloops to check on his son’s condition. On route from Kamloops to Hope, Mr. Jennings Sr. actively searched for vehicles matching the description of the tractor-trailer unit relayed to him by his wife. He checked out parking lots at truck stops, pull-offs and lay-bys. He understood from speaking to Mrs. Jennings that the police had been at the scene of the accident and that Mr. Jen- nings’ dog and Mr. Jennings’ personal possessions had been taken by the Boston Bar RCMP for safekeeping. 30 Mr. Jennings Sr. stopped on the side of the highway when he arrived at the accident scene. His son’s vehicle was still there, although it appears it may have been moved from where it came to rest; probably by BC Hydro employees. BC Hydro employees were present at the location when Mr. Jennings Sr. arrived there, waiting for a new pole to be delivered to replace the one sheared off by the plaintiff’s pickup truck. Mr. Jennings Sr. took photographs of his son’s truck and the sheared-off hydro pole and the hydro workers and their vehicles. 31 Mr. Jennings Sr. checked out his son’s vehicle. He picked up some glass and other debris and threw it into the truck. He opened the driver’s side door. He noticed that the driver’s side mirror was flattened against the vehicle door. He noticed the wind deflector above the driver’s side window was broken and the one above the storage area (jump seat?) behind the driver’s side door was gone. He examined the non-mirror side of the driver’s side mirror and noticed what he believed to be recent scuffs and scratches. 32 From the accident scene, Mr. Jennings Sr. continued driving south to Boston Bar. He went to the RCMP detachment there. A shift change was underway. Mr. Jennings Sr. spoke with Constable Gatto, who was one of two officers from the Boston Bar detachment who had been to the accident scene. The other officer who had been with Constable Gatto at the scene was Constable Gravelle. Mr. Jennings Sr. told Constable Gatto that his son’s vehicle had been forced off the road by a tractor-trailer unit, and he gave Constable Gatto the description his son had given - a blue Kenworth tractor pulling a white trailer. Mr. Jennings Sr. retrieved Scout and his son’s possessions from Constable Gatto and then contin- Jennings v. Doe W.G. Baker J. 63

ued on to the hospital in Hope where he met up with his son and Mrs. Jennings, Sr. 33 After assuring himself that his son was okay and was being discharged and would go home with Mrs. Jennings Sr., Mr. Jennings Sr. drove back to his job site in Kamloops. When he drove by the accident scene he saw that his son’s vehicle had been removed. On his return journey to Kamloops he again searched for a vehicle matching the description given by his son and checked the same likely locations he had checked on the trip south. Mr. Jennings Sr. testified that he hoped to find the vehicle so that the police could pursue the person he re- garded as a hit and run driver. He was not aware of the provisions of s. 24 of the Insurance (Vehicle) Act. 34 Mr. Jennings spent the next few days recuperating at home. When Mr. Jen- nings Sr. returned from Kamloops on Friday October 10 he placed a call to the Insurer’s dial-a-claim line, with the intention of making an appointment for his son and himself to meet with an adjuster. Mr. Jennings Sr. believed that because his son was not yet 19 years old, he would have to be involved in the insurance claim process. The notes of one of the Insurer’s dial-a-claim employees are in evidence and confirm that Mr. Jennings Sr. reported the accident to have been caused by a second vehicle that did not stop at the scene. 35 Mr. Jennings and Mr. Jennings Sr. were given an appointment to meet with an adjuster on October 20, 2008. On his return to Kamloops, Mr. Jennings Sr. again used the opportunity to watch for tractor-trailer units matching the description provided by his son en route. He also stopped in to the Boston Bar RCMP detachment and spoke again to Constable Gatto. 36 Messrs. Jennings said that no Insurer employee with whom they dealt ever told either of them that Mr. Jennings had an obligation to make efforts to locate the driver or owner of the other vehicle involved in the accident. Nothing was said that indicated that the accuracy of Mr. Jennings’ report of the events leading to the accident was disputed or in doubt. Mr. Jennings Sr. said that their initial meeting with the adjuster was pleasant and that what Mr. Jennings said to the adjuster about how the accident had happened seemed to be accepted. The adjuster told the two men that she would be getting a copy of a police report and a copy would be provided to them. She prepared a statement summarizing the information provided by the two men. Before signing the statement prepared by the adjuster, Mr. Jennings or his father sought legal advice and some handwrit- ten alterations were made to the typewritten document prepared by the adjuster. Mr. Jennings signed the amended statement. It, and the necessary notices required by the Insurance (Vehicle) Act, were delivered to the Insurer. 37 A few weeks after the accident, Mr. Jennings received a photocopy of a form which the Insurer adjuster called a “MV6020” and which the parties referred to as a “police report” at trial. According to a letter written at a later date by an Insurer representative to counsel for the plaintiff, the MV6020 had been for- 64 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

warded to the Insurer by the Boston Bar detachment of the RCMP. There is a stamp on the bottom of the document that reads: CPL D DOYLE TEAM LEADER Fraser Valley Traffic Services Under the stamp, a signature that appears to be that of D. Doyle appears. 38 There was evidence - although hearsay - that the investigation of traffic accidents on the Trans Canada Highway is considered to be the responsibility of the Chilliwack RCMP Detachment, even if the accident happens at a location closer to the Boston Bar Detachment. Other evidence at trial - again hearsay - indicates the form referred to above may have been completed by a Constable Small from the Chilliwack RCMP Detachment. No evidence was led to establish that Con- stable Small went to the accident scene (although an e-mail he apparently au- thored suggests he did), or from what source he obtained the information included in his report; or the basis of his choice of codes that he recorded on the form, or why the form seems to have been signed by someone other than the person who prepared it. There’s no evidence that Corporal Doyle ever went to the scene. 39 Selected codes, according to counsel and a code glossary included as an exhibit, indicate that the officer who filled out the MV6020 selected “weather” and “driver inattentive” as “contributing factors”. 40 When Mr. Jennings Sr. and Mr. Jennings received a copy of the MV6020 in late October or early November 2009, they noticed that no information had been included on the form about the other vehicle Mr. Jennings says caused the accident. They did not know, however, how to decipher any of the many codes and numbers appearing on the form and were not aware that the police officer who prepared the form was treating the accident as a single-car event, or that he had selected codes indicating that “driver inattentive” and “weather” were contributing factors in the accident. 41 Mr. Jennings spoke to Constable Gatto briefly a couple of times in the months after the accident, primarily about whether a pair of expensive sunglasses that had been in his vehicle had been located, but also about the accident. 42 Mr. Jennings had collision insurance. He did some internet research about the value of his truck, which had been “written off” by the Insurer; and the In- surer and he reached agreement about the amount he would be paid for the damage to his vehicle, and this sum was paid. Mr. Jennings had some medical expenses and these were discussed with the adjuster and Mr. Jennings was also reimbursed for these expenses. In these interactions, no mention was made of any obligation on the part of Mr. Jennings to take steps to try to identify the driver of the tractor-trailer unit. Jennings v. Doe W.G. Baker J. 65

43 It was not until early March 2009 that Mr. Jennings learned, through his counsel, that the Insurer was taking the position, primarily in reliance on the MV6020 report, that Mr. Jennings was “...100% responsible for the accident of October 7, 2008”. The letter sent to plaintiff’s counsel stated that the police report indicated only one vehicle was involved. The adjuster also referred to photographs in the possession of the Insurer purporting to depict the location of the accident but I am satisfied that the Insurer was mistaken about the location of the accident and believed at the time that it had occurred several kilometres north of the actual accident scene. 44 Because of the adjuster’s misunderstanding about where the accident took place - defendants’ counsel continued to assert in submissions at trial that the plaintiff was “travelling up a steep hill at the time of the accident” although that statement does not accord with the evidence - there is also some erroneous speculation in the adjuster’s letter to plaintiff’s counsel about the likely speed that a tractor-trailer could have been travelling when the accident happened. Finally, the adjuster stated that the condition of the driver’s side of Mr. Jennings’ vehicle didn’t support his statement that the trailer of the tractor-trailer unit had “nudged up against” his vehicle. Even this letter did not, however, assert that the plaintiff had failed to take reasonable steps to try to identify the driver or owner of the tractor-trailer unit. 45 Mr. Jennings Sr. testified that he attempted to reach Constable Small by telephone twice after learning that it may have been Constable Small who prepared the police report on which the Insurer was relying. Both times he was told by someone at the Chilliwack RCMP Detachment that Constable Small was not there; and both times he left a message asking that Constable Small return his call. No calls were returned. 46 An e-mail purporting to be from Constable Small and received by plaintiff’s counsel, dated February 14, 2009, is in evidence. In the e-mail, Constable Small, referring to himself in the third person, reported that Mr. Jennings had been taken by ambulance from the accident scene before Constable Small arrived there; that Constable Small had not spoken to Mr. Jennings before preparing the accident report and that no traffic analyst had been involved. Constable Small wrote that he had written to Constables Gatto and Gravelle inquiring if they had any notes or photographs and would advise plaintiff’s counsel if any were received. None are in evidence and I infer from that that none were provided. 47 On November 26, 2009, the plaintiff commenced this action.

Reasons and Analysis 48 I found both the plaintiff and his father to be credible witnesses. There were a couple of minor inconsistencies arising out of testimony Mr. Jennings gave on examination for discovery. These inconsistencies arose, in my view, out of Mr. Jennings’ relative youth and eagerness to be a cooperative witness. He at- 66 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

tempted, when invited to do so, to provide estimates of distance and speed although his first response - that he did not know or was not sure - had been the correct response. These minor inconsistencies did not, however, cause me to doubt Mr. Jennings’ truthfulness. It would, in my view, have been surprising if Mr. Jennings had actually been able to provide, with any degree of accuracy, some of the details he was pressed to provide about events that were sudden and unexpected and which must have been frightening. 49 Mr. Jennings testified that he believed that the trailer portion of the tractor- trailer unit actually made contact with the side of his vehicle as it entered his lane. The defendants take issue with this assertion. Both Mr. Jennings and his father were cross-examined about the configuration of Mr. Jennings’ vehicle. They were asked to explain how a passing trailer could cause the wind deflectors to shear off but the side mirror - which protrudes further than the deflectors from the frame of the vehicle - to remain intact. Mr. Jennings was unable to say that he actually saw any part of the tractor-trailer strike his vehicle - his attention was focused elsewhere. He said he believes there was contact because he felt his vehicle vibrate and because the wind deflectors above the windows on the driver’s side of his vehicle were damaged. 50 I can conceive of ways in which the damage could have been caused - straps or other items protruding from the trailer at the level of the deflectors, for example; or the air displacement caused by the passing vehicle, but it is not necessary for me to do so. 51 The evidence establishes that there was physical damage to the plaintiff’s vehicle present after the accident that was not present before the accident. It is unlikely that that the damage to the wind deflectors resulted from contact with the hydro pole - the vehicle struck head on and the wind deflectors on the passenger side were undamaged. The damage to Mr. Jennings’ vehicle corroborates his testimony. 52 Counsel for the defendants objected to the admission of the testimony of Mr. Simon and Mr. Jennings, Sr., and various documents indicating that Mr. Jen- nings did, at the earliest opportunity, and consistently since that time, claim that the accident had been caused by the actions of the driver of a tractor-trailer unit. Counsel submitted, correctly, that previous “consistent” statements of a witness are normally not admissible for the truth of their contents, or to buttress the credibility of a trial witness’ testimony. The defendants say they are not asserting a “recent” fabrication, although by implication they are asserting that Mr. Jennings has fabricated a story about how the accident happened. 53 In my view, earlier decisions of this court establish that in circumstances such as these, the previous out-of-court statements are admissible and relevant not for proof of the truth of the out-of-court statements but to rebut any inference that a claimant is lying because he failed to assert his present version of events at the first and any subsequent opportunity when it would be reasonable Jennings v. Doe W.G. Baker J. 67

to expect him to do so, or had made inconsistent claims in the past about the circumstances of the accident. 54 In Vanderbyl v. Insurance Corp. of British Columbia (1993), 79 B.C.L.R. (2d) 156 (B.C. S.C.), at paras. 37 and 38, Mr. Justice Trainor, an experienced trial judge, set out a list of elements to be considered in assessing the credibility of a plaintiff in cases such as these. Among the elements identified by Justice Trainor were the following: 1. Whether the plaintiff reported the existence of the unidentified vehicle as soon as reasonably possible to the police or other persons in authority and to I.C.B.C. 2. Whether the description of the unidentified motor vehicle given by the plaintiff was as specific as might reasonably be expected from the particular plaintiff in the circumstances. 3. Whether the plaintiff’s testimony at trial is consistent with statements given to the police, doctors or medical attendants, family members, associated or other witnesses or to I.C.B.C. 4. Whether the plaintiff has called witnesses to testify to whom statements were made or who might testify about the plaintiff’s actions after the incident...... 8. Whether the plaintiff’s actions following the accident are consistent with those one might reasonably expect of a person in similar circumstances. 55 In this case, Mr. Jennings reported the existence of the unidentified vehicle as soon as reasonably possible to the police and to the Insurer. Mr. Jennings told drivers who stopped at the scene and the ambulance attendant - Mr. Simon - that a tractor-trailer unit had been involved and he attempted to make a report to police at the scene, but was prevented from doing so by the ambulance personnel who were concerned about his physical injuries. Mr. Jennings Sr. reported the involvement of a second vehicle to the Boston Bar RCMP Detachment on the day of the accident. Mr. Jennings Sr. reported the circumstances to the dial- a-claim adjuster by telephone and Mr. Jennings made a statement in person and in writing to an adjuster a few days after the accident. The evidence of Mr. Simon about Mr. Jennings’ anger and his physical condition when assessed at the accident scene is consistent with what one might reasonably expect of a person in similar circumstances. I believe Mr. Jennings, and I accept his testimony about how the accident happened. 56 I conclude also that the accident was caused solely by the negligence of the driver of the tractor-trailer unit who entered Mr. Jennings’ lane of travel when it was unsafe to do so. That driver failed to see Mr. Jennings’ vehicle when it was there to be seen, and changed lanes when it was unsafe to do so and without having signalled his intention to change lanes by activating his turn signal. 68 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

57 I am not persuaded that Mr. Jennings was negligent in failing to reduce his speed or brake earlier than he did, or in using or failing to cancel his cruise control. I am not persuaded that anything done by, or omitted to be done by Mr. Jennings made any difference to the outcome. 58 Counsel for the defendants introduced into evidence excerpts from the owner’s manual issued by Toyota for the year and model of the truck driven by Mr. Jennings. In reference to the use of cruise control, the manual included the following statement: Caution To help maintain maximum control of your vehicle, do not use the cruise control when driving in heavy or varying traffic, or on slippery (rainy, icy or snow-covered) or winding roads. 59 Mr. Jennings testified that although there was some light precipitation, the roadway was only damp. Counsel for the defendants points to the conclusion apparently reached by Constable Small that weather conditions contributed to the accident, but Constable Small did not testify and it is not clear what weather conditions he was referring to. There is no evidence that the road surface was “slippery”. No expert opinion evidence was tendered from which I could conclude that the use of cruise control in the circumstances was a breach of the standard of care expected of a reasonably prudent driver. 60 There is no expert opinion evidence from which I could conclude that had Mr. Jennings reduced his speed seconds earlier; or braked earlier; or cancelled his cruise control; or thought to honk his horn or activate his four way flashers; the accident would not have happened; and I am not persuaded I should draw such conclusions in the absence of evidence. The events culminating in Mr. Jen- nings’ truck striking the hydro pole happened unexpectedly and quickly. Mr. Jennings did slow his vehicle using the deceleration feature of his cruise control; pulled to the far side of his lane; then onto the shoulder and finally into the ditch in an attempt to avoid a collision with the much larger vehicle that was crowding him off the road. He considered applying his brakes but in the agony of the moment believed he might worsen his situation by doing so. His decision was not unreasonable. I am not persuaded that the defendants have proved negligence on the part of Mr. Jennings. 61 I turn now to the question of whether Mr. Jennings failed to make “all reasonable efforts” to ascertain the identity of the driver or owner of the tractor- trailer unit. 62 Section 24(5) of the Insurance (Motor Vehicle) Act, provides: In an action against the corporation as nominal defendant, a judgment against the corporation must not be given unless the court is satisfied that (a) all reasonable efforts have been made by the parties to ascertain the identity of the unknown owner and driver or unknown driver, as the case may be, and Jennings v. Doe W.G. Baker J. 69

(b) the identity of those persons or that person, as the case may be, is not ascertainable. 63 Counsel provided the court with many authorities on this point. The authorities referred to include: Leggett v. Insurance Corp. of British Columbia (1992), 18 B.C.A.C. 281 (B.C. C.A.); Mattu v. Insurance Corp. of British Columbia (1998), 52 B.C.L.R. (3d) 272 (B.C. C.A.); Cunningham v. Slubowski, 2003 BCSC 1979 (B.C. S.C.); Grant v. Slater, 2001 BCSC 1409 (B.C. S.C. [In Chambers]); Nelson v. Insurance Corp. of British Columbia, 2003 BCSC 121 (B.C. S.C.); Becker v. Insurance Corp. of British Columbia, 2002 BCSC 1106 (B.C. S.C. [In Chambers]); Fan v. John Doe, 2009 BCSC 568 (B.C. S.C.); Palmer v. John Doe I, 2005 ABQB 176 (Alta. Q.B.); Stanley v. Insurance Corp. of British Columbia, 2004 BCSC 1697 (B.C. S.C.); Goncalves v. John Doe, 2010 BCSC 1241 (B.C. S.C.); Warder v. Insurance Corp. of British Columbia [1993 CarswellBC 1717 (B.C. S.C.)], 1992 CanLII 724; Hough v. John Doe, 2006 BCSC 1450 (B.C. S.C.); Gill v. Insurance Corp. of British Columbia, 2007 BCPC 49 (B.C. Prov. Ct.); Hocaluk v. Insurance Corp. of British Columbia, 2007 BCSC 170 (B.C. S.C.); Filsinger v. Insurance Corp. of British Columbia, 2009 BCSC 232 (B.C. S.C.); Ingram v. Insurance Corp. of British Columbia (1994), 93 B.C.L.R. (2d) 267 (B.C. C.A.); and Dewart v. Insurance Corp. of British Columbia, 2005 BCSC 1293 (B.C. S.C.). 64 It cannot be said that reconciling all of these decisions is an easy task, but I must do the best I can. Several of the decisions cited involved plaintiffs who had refrained from recording the licence number of the other vehicle or obtaining the name of the other driver in circumstances in which they could easily have done so, or had neglected to even speak to available witnesses, including a person who was a passenger in the vehicle when the accident occurred. Some are cases in which the plaintiff failed to report the accident to the police, or the insurer, for weeks or even months. In some cases, the plaintiffs had provided inconsistent statements about how the accident happened, or had reported that the accident happened at a location other than the actual location. In other cases, expert testimony established that the accident could not have happened in the manner described by the plaintiff. 65 In Ingram v. Insurance Corp. of British Columbia, cited above, the Court of Appeal stated, at para. 3: The words “not ascertainable” in s. 23(5) of the Act (“his identity is not ascertainable”) have been held by this court to mean could not have been ascertained had the claimant made all reasonable efforts, having regard to the claimant’s position, to discover them. 66 The authorities appear to establish that a determination of what efforts are reasonable must be made with regard to the circumstances of each case, at the 70 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

time that the accident happened, and in the following weeks and months. In Hough v. John Doe, cited earlier, Mr. Justice Bernard said, at para. 24: In my view a proper determination of the efforts which might reasonably lead to discovering the identity of the unknown driver or owner must be made with due regard for the location where the collision occurred and the circumstances in which the collision occurred...... the instant collision occurred along an undeveloped and sparsely populated stretch of the Trans-Canada highway where there are no pedestrians and where vehicles travel at speeds in excess of 100 km/h. A collision which occurs in such a location and circumstances is likely to be witnessed by relatively few people, if any. The speed at which the offending vehicle would be travelling would seriously hamper the ability to observe and note a licence plate number. The likelihood that a witness would recognize the driver or the car is miniscule. In the days following the collision, the task of locating any witnesses would be daunting. The highway serves many people from far-off places travelling considerable distances to an array of destinations. It would be a far-fetched exercise to post a notice at the accident scene or advertise in a local newspaper and there would be no-on to canvass. 67 The majority of the authorities indicate that the assessment of the reasonableness of any actions the defendant submits the plaintiff could or should have taken must include consideration of the likelihood that the proposed action would or could have produced a favourable outcome. It would be incorrect, in my view, to conclude that the Legislature intend to impose on an insured the burden of actions that viewed objectively had such a remote prospect of success as to be merely “going through the motions” or an exercise in futility. 68 Some of the authorities say that an insured may not rely on the police to carry out an investigation; in other words, may not delegate to the police the duty that is imposed by the legislation on the insured. While I accept this proposition as I must, I am also of the view that where there is evidence that an insured has promptly reported to the police activity on the part of an unidentified driver that could constitute a criminal act; and the reasonable conclusion is that the police considered investigative efforts to identify the perpetrator would be futile, the court may take that evidence into account in assessing the nature of the efforts it is reasonable to require of an insured. 69 In this case, there were no pedestrians or other vehicles in the vicinity and the accident occurred on the Trans-Canada highway along a sparsely populated stretch of the road. There were no witnesses who could assist in identifying the driver of the tractor-trailer. It is true that Mr. Jennings failed to obtain the names of the passersby who stopped at the scene, but the evidence establishes that none of them were present when the accident happened and the first arrived approximately 15 minutes after the accident. I do not believe any of them could have assisted in identifying the driver or owner of the other vehicle. Jennings v. Doe W.G. Baker J. 71

70 There was nothing about the tractor-trailer unit that was likely to cause another driver on the Trans-Canada Highway to take note of it. Even if, as Mr. Jennings believed, there had been actual physical contact between the trailer and his truck, the minimal nature of the damage to his truck indicates it was unlikely the other vehicle would have had significant damage, or damage that would have been noticed by a passing motorist. Mr. Jennings had been unable to see any logos on the tractor or trailer and had no opportunity to see the vehicle’s licence number. 71 If the driver realized at the time that he had caused Mr. Jennings’ vehicle to leave the roadway and collide with the hydro pole, it is reasonable to assume the driver intentionally left the scene. It is highly unlikely that he or she would respond to signs posted at the accident scene asking the driver to identify him or herself. If the driver did not realize he or she had been involved in an accident, it is equally unlikely that the driver would reply to such signs or newspaper adver- tisements to similar effect. 72 Realistically, the only prospect of detecting the driver of the other vehicle lay in immediate pursuit and/or police roadblocks set up as soon as the accident came to their attention. Mr. Jennings was prevented from reporting to the officers at the scene by the well-intentioned actions of the ambulance crew who reasonably believed the police would go to the hospital to speak to Mr. Jennings. Mr. Jennings was sedated and underwent surgery, so soon after arriving at hospital he was probably in no position to be interviewed in any event. Mr. Jen- nings’ Sr. did speak to the Boston Bar RCMP officer within hours of the accident and he did tell police that a second vehicle had been involved. I conclude that the police thought there was so little prospect of identifying the perpetrator that they were not prepared to allocate police resources to the matter. Both Mr. Jennings and his father checked back with the police - I concede Mr. Jennings’ main purpose in doing so may have been his missing sunglasses - but they checked nonetheless. 73 Mr. Jennings had no reason to believe that the information relayed to the Boston Bar Detachment about the involvement of a tractor-trailer unit would not be passed along to the Chilliwack Detachment, or that police would file a report and purport to reach conclusions about how the accident had happened without at least speaking to him by telephone. By the time that Mr. Jennings realized that the police report, on which the Insurer subsequently relied, was incomplete and inaccurate, several months had elapsed. 74 Mr. Jennings Sr. made efforts to locate the tractor-trailer unit on his drive from Kamloops to Hope, and on his return journey, without success, and continued to watch for vehicles matching the description provided by his son during journeys made on the highway during the time period that it was most likely that the vehicle would still be in this part of the province. 72 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

75 The accident and the involvement of a second driver were reported to the Insurer promptly. Ignorance of the law is no defence, and the Act does not impose on the Insurer a positive obligation to tell a claimant about s. 24(5) of the Insurance (Vehicle) Act. However, Mr. Jennings was given no reason to believe, in any of his interactions with representatives of the Insurer that what he had reported to the Insurer would be challenged, or that he had should be making efforts to locate the other driver. To the contrary, he was led to believe that what he said had been accepted. He was reimbursed for the damage to his vehicle and for his medical expenses. 76 In my view, Mr. Jennings did make all efforts that were reasonable, in the circumstances of this case, to identify the driver of the tractor-trailer unit. I am persuaded that the identities of the unknown driver and owner are not ascertainable. Mr. Jennings is entitled to an order that the defendants, including the defendant Insurer, are liable for any damages payable to the plaintiff caused by the accident. 77 Mr. Jennings is also entitled to the costs of this action, on Scale B. Action allowed. R. v. Guardado 73

[Indexed as: R. v. Guardado] Her Majesty the Queen and Shandi Lynn Guardado Alberta Provincial Court J.D. Bascom Prov. J. Judgment: September 27, 2010 Docket: Calgary 090683806P10101-0103, 2010 ABPC 313 Jonathan Hak, Q.C. for Crown John Paul Brunnen for Defence Criminal law –––– Offences — Dangerous driving — Evidence –––– Divergent estimates as to vehicle speed — Accused charged with dangerous driving causing bodily harm — Accused drank some significant quantity of alcohol prior to driving — Ac- cused’s motor vehicle struck rear end of truck after accused apparently “ran” red stop signal, causing bodily harm to accused’s passenger — Eyewitnesses placed accused’s speed immediately prior to accident at between 50 km/h and 100 km/h — Accident reconstructionist estimated accused’s pre-accident speed at 107 km/h by use of “proven mathematical calculations based on the weight of both vehicles and the distance travelled after the collision” — Accused convicted — Eyewitness who placed accused’s pre-accident speed at 100 km/h had better opportunity to observe accused’s driving than did witnesses positing lower speeds — In any event, reconstructionist’s findings were not seriously challenged and based on that analysis accused’s pre-accident speed was likely at least 107 km/h — Taken together, accused’s alcohol consumption, “running” red signal light and pre-accident speed constituted dangerous driving conduct — Given admitted bodily harm caused by accident, offence charged was made out in present case. Criminal law –––– Offences — Impaired driving/care or control — Proof of impairment — General principles –––– Accused charged with impaired driving causing bodily harm — Accused consumed, on passenger’s evidence, at least six alcoholic drinks prior to driving motor vehicle, but passenger was uncertain inter alia as to whether any of accused’s drinks were “doubles” or of accused’s exact consumption — Passenger testified that accused seemed able to drive, but that they had offered keys to third party in search of ride home — After accused was involved in rear-end accident which caused bodily harm to passenger, police obtained search warrant for accused’s blood and obtained sample which was analysed as having blood/alcohol concentration of 301 mg/100mL — Crown adduced evidence from alcohol absorption expert who testified that accused’s blood/alcohol concentration at time of accident exceeded 301 mg/100mL and that any adult female with that blood/alcohol concentration would be impaired — Ac- cused adduced evidence from blood/alcohol concentration expert who opined that, on hypothetical amount of drinks consumed from passenger’s evidence, accused’s blood/alcohol concentration would actually be low enough that she would not have been impaired at time of accident — Accused convicted — Passenger’s reporting of accused’s pre-accident alcohol consumption was so uncertain as to negative opinion on hypothetical from accused’s expert — Having regard to very high blood/alcohol concentration in sam- 74 MOTOR VEHICLE REPORTS 4 M.V.R. (6th) ple taken from accused, accused’s impairment by alcohol was established beyond reasonable doubt and given admitted bodily harm offence charged was made out. Criminal law –––– Offences — Driving/care and control with excessive alcohol — Presumption of alcoholic content at time of offence — Evidence to contrary –––– Ac- cused charged with “over 80” — Accused consumed, on passenger’s evidence, at least six alcoholic drinks prior to driving motor vehicle, but passenger was uncertain inter alia as to whether any of accused’s drinks were “doubles” or of accused’s exact consumption — Empty alcohol bottles were found in accused’s vehicle, and passenger testified that they were “empties” to be taken to bottle recycling depot — After accused was involved in rear-end accident which caused bodily harm to passenger, police obtained search warrant for accused’s blood and obtained sample which was analysed as having blood/alcohol concentration of 301 mg/100mL — Accused adduced evidence from blood/alcohol concentration expert who opined that, on hypothetical amount of drinks consumed from passenger’s evidence, accused’s blood/alcohol concentration would have been lower than 80 mg/100mL — Accused convicted — Passenger’s reporting of accused’s pre-accident alcohol consumption was so uncertain as to negative opinion on hypothetical from accused’s expert — Empty bottles did not raise concern as to bolus drinking after accident, as passenger testified that bottles were empty prior to accused’s driving — Absent alternative blood/alcohol concentration, 301 mg/100mL result from blood test was conclusive proof that accused’s blood/alcohol concentration exceeded 80 mg/100mL and accused was properly convicted. Cases considered by J.D. Bascom Prov. J.: Frye v. United States (1923), 293 F. 1013, 34 A.L.R. 145, 54 App. D.C. 46 (U.S. D.C. Ct. App.) — considered R. v. Beatty (2008), 76 B.C.L.R. (4th) 201, 371 N.R. 119, [2008] 1 S.C.R. 49, 420 W.A.C. 7, 251 B.C.A.C. 7, 54 C.R. (6th) 1, 57 M.V.R. (5th) 1, 2008 CarswellBC 307, 2008 CarswellBC 308, 2008 SCC 5, 228 C.C.C. (3d) 225, 289 D.L.R. (4th) 577, [2008] 5 W.W.R. 1, 179 C.R.R. (2d) 247, [2008] A.C.S. No. 5, [2008] S.C.J. No. 5 (S.C.C.) — referred to R. v. Farrell (2007), 2007 CarswellAlta 801, 2007 ABPC 137 (Alta. Prov. Ct.) — considered R. v. Graat (1982), 1982 CarswellOnt 101, [1982] 2 S.C.R. 819, 1982 CarswellOnt 745, 18 M.V.R. 287, 31 C.R. (3d) 289, 2 C.C.C. (3d) 365, 144 D.L.R. (3d) 267, 45 N.R. 451, [1982] S.C.J. No. 102 (S.C.C.) — referred to Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 s. 249(1)(a) — referred to s. 249(3) — pursuant to s. 253(1)(b) — pursuant to s. 255(2) — pursuant to Traffic Safety Act, R.S.A. 2000, c. T-6 Generally — referred to

TRIAL of accused on charges of dangerous driving causing bodily harm, impaired driving causing bodily harm and “over 80”. R. v. Guardado J.D. Bascom Prov. J. 75

J.D. Bascom Prov. J.:

1 Shandi Lynn Guardado stands charged: Count 1: On or about the 2nd day of April, 2009, at or near Calgary, Alberta, did unlawfully operate a motor vehicle in a manner that was dangerous to the public and did thereby cause bodily harm to Sussy Valenzuela, contrary to Section 249(3) of the Criminal Code of Canada. Count 2: On or about the 2nd day of April 2009, at or near Calgary, Alberta, did unlawfully operate a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or a drug and did thereby cause bodily harm to Sussy Valenzuela, contrary to Section 255(2) of the Criminal Code of Canada. Count 3: On or about the 2nd day of April, 2009, at or near Calgary, Alberta, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did unlawfully have the care or control of a motor vehicle, contrary to Section 253(1)(b) of the Criminal Code of Canada.

Introduction 2 On April 2, 2009, the accused, Shandi Guardado was the operator of a motor vehicle with a passenger, Sussy Valenzuela. At approximately 9:45 p.m. just east of the intersection of 52nd Street S.E. and 72nd Avenue S.E., the vehicle operated by Ms. Guardado collided with the rear of the cab of a semi-trailer unit parked near the south curb of 72nd Avenue S.E. Ms. Valenzuela suffered a dislo- cated hip and scratches on her knee and forehead.

Evidence 3 Jason Evans and Christina McBeath were located in the parking lot of the Tim Hortons restaurant facing the intersection of 52nd Street and 72nd Avenue S.E. Mr. Evans testified that he heard a Honda motor vehicle accelerating as it travelled eastbound on 72nd Avenue. The Honda motor vehicle proceeded through the red light, which had been red for approximately five seconds. Mr. Evans estimated the speed of the Honda vehicle at 100 kilometres per hour. He saw no brake lights and the Honda vehicle collided with the rear of the Volvo semi-trailer cab. Ms. McBeath testified that she heard the acceleration from the westerly direction. She stated the light was red and the Honda vehicle swerved to the right just prior to driving into the back of the semi-tractor trailer unit. 4 Shane Stronach was a passenger in a vehicle driven by Graham Noble northbound on 52nd Street. They were initially stopped at a red light at the intersection of 52nd Street and 72nd Avenue S.E. Mr. Stronach testified that the light turned green and after about one or two seconds the vehicle in which he was a passen- 76 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

ger moved forward. He saw the Honda motor vehicle when it was right in front of him. He concluded the Honda vehicle ran the red light in that the light facing his vehicle was green. He watched the Honda motor vehicle drive into the back of the Volvo semi-tractor trailer. He saw no brake lights. Mr. Noble indicated that he and Mr. Stronach had been stopped at the red light for about 30 seconds. The light turned green and after about one or two seconds he inched forward and the vehicle passed in front of him. Both Mr. Stronach and Mr. Noble estimated the Honda vehicle speed to be between 50 and 80 kilometres per hour. 5 Benjamin Ryan was operating a motor vehicle northbound on 52nd Street in the right hand lane. He stopped for a red light at the intersection of 52nd and 72nd Avenue S.E. The light turned green and he started forward and stopped his vehicle at the crosswalk when he saw the Honda motor vehicle 150 to 200 metres away from the entrance to the Tim Hortons. He concluded that the Honda vehicle was not going to stop for the light. He estimated the Honda speed between 60 and 80 kilometres per hour. 6 Constable Chapman, a collision reconstruction expert, was qualified by the court to provide opinion evidence as to the speed of the Honda motor vehicle at the time of collision. Constable Chapman opined that the minimum speed was 107 kilometres per hour. 7 Pursuant to a search warrant a blood sample was drawn from the accused at 22:41 hours. The sample was sent to the RCMP forensic laboratory and was analyzed and found to contain 301 milligrams of alcohol in 100 millilitres of blood. Jean-Claude Landry was qualified as an expert to provide opinion evidence in the field of absorption and elimination of alcohol, the affects of alcohol on the human body and the ability to operate a motor vehicle after consuming alcohol. Mr. Landry was presented with a hypothetical involving an adult female whose blood alcohol level was 301 milligrams of alcohol in 100 millilitres of blood at 22:41 hours. Mr. Landry provided an opinion as to the blood alcohol level of the adult female at the time of the accident. Mr. Landry opined that the individual’s blood alcohol level was between 301 and 319 milligrams percent or milligrams of alcohol per 100 millilitres of blood. It was Mr. Landry’s opinion that the person with a blood alcohol concentration in this range would be impaired in their ability to operate a motor vehicle. 8 The Crown called Sussy Valenzuela, the passenger in the accused’s vehicle. Ms. Valenzuela testified that on April 2, 2009 the accused picked her up at approximately 4:00 p.m. in the accused’s silver Civic motor vehicle. The accused, Ms. Valenzuela and others attended a bar on 17th Avenue where the accused and Ms. Valenzuela consumed beer. They then attended a bottle depot to drop off boxes and bags of empty bottles that Ms. Valenzuela brought along. The bottle depot was closed. The accused and Ms. Valenzuela then attended a bar in the industrial part of the city. They consumed hard liquor and left at approximately R. v. Guardado J.D. Bascom Prov. J. 77

9:00 p.m. Ms. Valenzuela does not remember anything after leaving the bar, up to and including the motor vehicle accident.

Position of the Crown and Defence 9 The Crown’s position is that they have proven all essential elements and all three charges beyond a reasonable doubt. In relation to the Section 249(3) charge Mr. Brunnen argues that Constable Chapman’s opinion that the accused’s vehicle was travelling at a minimum of 107 kilometres per hour is flawed due to the fact that there is no evidence that the semi-tractor trailer unit was braked or in gear. Mr. Brunnen urges the court to accept the evidence of Shane Stronach, Graham Noble and Benjamin Ryan, who were all in vehicles facing northbound on 52nd Street S.E. They observed the accused’s vehicle pass in front of them at a speed they estimated between 50 and 80 kilometres per hour. Defence argues that these individuals were closest to the accused’s vehicle and therefore in the best position to provide an accurate estimate of speed. Mr. Brunnen argues that his client is guilty of an infraction pursuant to the Traffic Safety Act and not the offences charged. 10 On the issue of the Section 255(2) charge and the Section 253(1)(b) charge, Defence argues that based on the evidence of Sussy Valenzuela and that of Jean- Claude Landry, the alcohol expert, Ms. Guardado’s blood alcohol level was below .08 at the time of driving. He further argued that this position is supported by the evidence of Sussy Valenzuela who stated that she had no concern about Ms. Guardado’s driving and that there was nothing about the accused’s behaviour in her manner of walking or talking which concerned Ms. Valenzuela. De- fence further argues that the Crown lost continuity on the blood sample. Finally, the Defence argues that because of the number of bottles in the accused’s vehicle the Crown has not negated bolus consumption of alcohol.

Findings 11 Each Count on the Information must be considered individually. With regard to Count 1 and Count 2, it is clear that Sussy Valenzuela suffered injuries that equate to bodily harm as a result of the motor vehicle accident. The Crown argues that even without the evidence of the consumption of alcohol the driving pattern is a marked departure and fits into the definition of dangerous driving pursuant to Section 249(1)(a). R. v. Beatty (2008), 228 C.C.C. (3d) 225 (S.C.C.). The evidence in support of “marked departure” comes from the speed of the vehicle, the failure to stop for a red traffic light, and the collision with the rear of the stationary tractor trailer unit. 12 There is a divergence of opinion as to the speed of the accused’s vehicle as it passed through the intersection of 52nd Street and 72nd Avenue S.E. Jason Ev- ans’ evidence provides an opinion that the vehicle was travelling at a 100 kilometres per hour as it went eastbound through the red light on 72nd Avenue. 78 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

His passenger, Christina McBeath, also heard the acceleration and saw the vehicle pass through the red light and strike the rear of the tractor trailer unit. Mr. Evans’ estimate of speed is much higher than that of Shane Stronach, Graham Noble and Benjamin Ryan. An individual’s estimate of speed based simply on observation is at best a guess and has no scientific foundation. As stated in R. v. Farrell, 2007 ABPC 137 (Alta. Prov. Ct.), a person’s ability to estimate speed is not a recognized science. In an annotation prepared by Professor Don Stuart in R. v. Graat (1982), 31 C.R. (3d) 289 (S.C.C.), Professor Stuart mentions a case of Frye v. United States (1923), 293 F. 1013 (U.S. D.C. Ct. App.), at 1014, (1923), 54 App. D.C. 46 (U.S. D.C. Ct. App.): ...the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. 13 In this particular case Mr. Stronach, Mr. Noble and Mr. Ryan all had less time to observe the vehicle which they noticed as it passed in front of them through the intersection. Mr. Evans was in a location where he could observe the vehicle 150 - 200 feet before the intersection which allowed him a longer period of time to observe the vehicle and form an opinion as to speed. I find that Mr. Evans’ estimate of speed is more reliable than that of Stronach, Noble and Ryan. Constable Chapman, a qualified accident reconstructionist, testified that the minimum speed at which the vehicle was travelling was 107 kilometres per hour. This opinion was based on proven mathematical calculations based on the weight of both vehicles and the distance travelled after the collision. I find that there is evidence that the tractor trailer unit was parked with the vehicle either having the brakes engaged or being in gear, thereby preventing it from rolling forward. Constable Chapman testified about the skid marks depicted in Exhibit 1, photographs 17 - 21. These skid marks confirmed that the vehicle was stationary and either in gear or had the brakes engaged. 14 From the evidence I conclude that the vehicle operated by Shandy Guardado went through the red light at 52nd Street and 72nd Avenue S.E. at a minimum speed of 107 kilometres per hour. 15 Mr. Jean-Claude Landry, a qualified expert in absorption and elimination of alcohol, the effect of alcohol on the human body and the ability to operate a motor vehicle after consumption of alcohol, testified that based on an alcohol sample taken at 22:40 hours and an extrapolation calculation, he put the blood alcohol level at between 310 milligrams and 319 milligrams percent at the time of the accident. The blood sample which was interpreted by Mr. Landry was obtained as a result of a warrant executed by Constable Jackson on April 8, 2009 at the Foothills Hospital (Exhibit 2). Constable Jackson testified he received a plastic bag which contained four glass tubes. On the bag was the name Shandy Guardado, April 7, 2009. Constable Jackson transported the bag containing the vials to the evidence and property unit of the Calgary Police Service. There he tasks the unit to forward samples to the RCMP Forensic Laboratory. On June 3, R. v. Guardado J.D. Bascom Prov. J. 79

2009 Constable Jackson received a Certificate of Analysis which he provided to Constable Kurz who in turn served the accused, Ms. Guardado, with a copy of the Certificate of Analysis (Exhibit 8). This Certificate of Analysis indicates that one of the vials seized by Constable Jackson was analyzed and the result was 301milligrams of alcohol in 100 millilitres of blood. 16 The Defence argues that based on the evidence of Ms. Valenzuela and the Defence hypothetical put to Jean-Claude Landry, Ms. Guardado’s blood alcohol level would be below .08. The Defence hypothetical is contingent on the court finding Ms. Valenzuela’s testimony, concerning the amount of alcohol consumed, reliable. 17 Ms. Valenzuela testified that she and the accused first attended a bar on 17th Avenue where she and the accused consumed Corona beer. In response to a question as to how many Coronas she and the accused consumed she replied: “I think we had at least two each.” 18 On cross-examination she stated she and the accused had “about two Coro- nas each”. 19 The accused and Ms. Valenzuela then attended the second bar. Ms. Valenzuela testified as follows: Q What — what do you recall consuming? A I had another few more drinks Q I’m sorry? A Like, few more drinks. Q A few more drinks? A Another, like, three — three or more. I think it was about three. Q Three? A Three doubles I had, so. Q You had three doubles? Do you recall what they were? A I drink rye and ginger. Rye and ginger. Q Rye and ginger. Okay. And did you have anything more to drink than the three doubles? A Probably a few shots. Q Okay. And what about Ms. Guardado? Did she consume any alcohol? A Yes, she did. Q Do you know what she was drinking? A I believe it was — gin and tonics I think she drinks. Q And do you know how many gin and tonics she had? A Probably a few. About the same amount as me, like, three. 80 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

Q Okay. Now, you said yours were doubles. Do you know if hers were doubles? A I think she started with a single and then she had doubles. Q And, so far as you know, did she have anything to drink there other than gin and tonics? A She was having water as well. Q Okay. And, again, so far as you know, did she have anything else to drink besides gin and tonics and water? A No, I don’t believe so. Just what we had the same amount. Like, the shots, a few shots, with the guys. So shots, like about two. 20 It is clear from Ms. Valenzuela’s testimony she is uncertain as to what she and Ms. Guardado consumed at the two bars they attended. I find Ms. Valenzuela’s testimony as to the amount of alcohol consumed unreliable and I therefore cannot accept the hypothetical put to Mr. Landry by the Defence. Ms. Valenzuela testified as to her own concerns as to the condition of Ms. Guardado. At one point, prior to them leaving the second bar, Ms. Valenzuela provided the car keys to a gentleman who had offered to drive them home. In addition, Ms. Valenzuela offered to drive despite the amount of alcohol she consumed. I conclude from this that Ms. Guardado was showing signs of impairment which caused concern to the men they were with and to Ms. Valenzuela. 21 The Defence further challenges Mr. Landry’s opinion on the basis that the Crown has not negated a bolus consumption of alcohol prior to the accident. Numerous empty liquor bottles were found in the accused’s vehicle, however Ms. Valenzuela testified that these were previously empty and were to be taken to a bottle recycler. Bolus consumption of alcohol prior to the accident would affect the opinion of Mr. Landry, however there is no evidence to suggest bolus consumption. 22 Jean-Claude Landry testified that it is his opinion that anyone with a blood alcohol level in the area of 300 milligrams would be impaired by alcohol. Mr. Landry testified that everyone would show some degree of impairment with a blood alcohol concentration of 100 milligrams of alcohol per 100 millilitres of blood. 23 I find that the accused’s pattern of driving including speed, driving through a red light and the consumption of alcohol equate to operating a motor vehicle in a manner dangerous to the public. I further find that Ms. Valenzuela suffered bodily harm as a result of the accused’s dangerous operation of a motor vehicle. I find Ms. Guardado guilty of Count 1. 24 I further find that Ms. Guardado operated a motor vehicle while her ability to operate a motor vehicle was impaired by alcohol. I further find that Ms. Valenzuela suffered bodily harm as a result of the impaired operation of the motor vehicle. I find Ms. Guardado guilty of Count 2. R. v. Sanghera 81

25 I find that based on the analysis of the sample of blood taken from Ms. Guardado and the expert opinion as to the blood alcohol level at the time Ms. Guardado was in care and control, that the Crown has proven Ms. Guardado had care and control of a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. I find Ms. Guardado guilty of Count 3. Accused convicted.

[Indexed as: R. v. Sanghera] Regina v. Palwinder Singh Sanghera British Columbia Provincial Court B. Bastin Prov. J. Heard: February 11, 2010 Judgment: February 11, 2010 Docket: Vancouver 200832-1, 2010 BCPC 250 J. Neal, for Crown M. Bussanich, for Defendant Evidence –––– Privilege — Privileged communications — Solicitor and client — Waiver by client –––– Accused was charged with two offences contrary to s. 42.1(2)(a) of Insurance (Vehicle) Act of British Columbia — Crown sought to lead in evidence certain communications between accused and his lawyer and lawyer’s legal assistant — Rul- ing was made determining admissibility of evidence — Ruling was inadmissible — Crown was not permitted to question lawyer and assistant in proposed areas — Questions regarding communications between accused and lawyer or assistant regarding accused having returned to work were not allowed — Accused’s statement to insurer investigators to effect that he told his lawyer he was doing some work did not act as waiver to pierce accused’s solicitor-client privilege in relation to communications regarding that subject — Nor did accused’s statements to assistant constitute waiver of his solicitor-client privilege relating to communications about his application for benefits — Proposed questioning of Crown concerning any discussions about work that accused may have had with lawyer or assistant were clearly covered by solicitor-client privilege. Cases considered by B. Bastin Prov. J.: Descˆoteaux c. Mierzwinski (1982), 1982 CarswellQue 13, [1982] 1 S.C.R. 860, 28 C.R. (3d) 289, 1 C.R.R. 318, 44 N.R. 462, 141 D.L.R. (3d) 590, 70 C.C.C. (2d) 385, 1982 CarswellQue 291, [1982] S.C.J. No. 43 (S.C.C.) — considered R. v. Bennett (1963), 41 C.R. 227, 1963 CarswellBC 1, [1963] B.C.J. No. 67 (B.C. S.C.) — referred to 82 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

R. v. Fast (2009), 202 C.R.R. (2d) 356, 90 M.V.R. (5th) 233, 2009 CarswellBC 3286, 2009 BCSC 1671 (B.C. S.C.) — followed R. v. McClure (2001), 40 C.R. (5th) 1, 195 D.L.R. (4th) 513, 151 C.C.C. (3d) 321, 142 O.A.C. 201, 80 C.R.R. (2d) 217, 2001 SCC 14, 2001 CarswellOnt 496, 2001 Cars- wellOnt 497, [2001] 1 S.C.R. 445, 266 N.R. 275, REJB 2001-22807, [2001] S.C.J. No. 13 (S.C.C.) — followed R. v. Wijesinha (1995), 42 C.R. (4th) 1, 24 O.R. (3d) 802 (note), 100 C.C.C. (3d) 410, 127 D.L.R. (4th) 242, 186 N.R. 169, 85 O.A.C. 241, 32 C.R.R. (2d) 57, [1995] 3 S.C.R. 422, 1995 CarswellOnt 547, 1995 CarswellOnt 1171, EYB 1995-67671, [1995] S.C.J. No. 49 (S.C.C.) — referred to Todoruk v. Trapp (2005), 2005 CarswellBC 2899, 2005 BCSC 1702, 27 M.V.R. (5th) 246 (B.C. S.C. [In Chambers]) — referred to Statutes considered: Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 s. 42.1(2)(a) [en. 1997, c. 43, s. 56] — pursuant to Regulations considered: Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 Insurance (Vehicle) Regulation, B.C. Reg. 447/83 Pt. 7 — referred to

RULING regarding admissibility of evidence.

B. Bastin Prov. J. (orally):

1 Regina versus Palwinder Singh Sanghera, evidentiary ruling. The defendant, Palwinder Singh Sanghera, is charged in Information Number 200832 with two offences contrary to s. 42.1(2)(a) of the Insurance (Vehicle) Act of British Columbia. 2 Count 1 is a charge of providing to the Insurance Corporation of British Co- lumbia (ICBC) or its representative’s information material to a claim that Mr. Sanghera knew or ought to have known was false or misleading. Count 2 is a related charge of causing Bim Mahal and E. Anthony Thomas to provide the alleged false or misleading information to ICBC. The offences are alleged to have occurred at or near Surrey and elsewhere in the Province of British Colum- bia between August 21st, 2007, and January 24th, 2008. 3 To this point in the trial, the Crown has presented most of its case against the defendant. The Crown seeks to complete its case by leading in evidence certain communications between Mr. Sanghera and his lawyer, Mr. E. Anthony Thomas, and Mr. Thomas’ legal assistant, Ms. Bim Mahal. Counsel for the defence objects to the admissibility of the communications on the basis of solicitor-client privilege. This ruling is to determine the admissibility of the challenged evidence. R. v. Sanghera B. Bastin Prov. J. 83

4 It is necessary to review the trial evidence heard to this point in order to put in context the communications between Mr. Sanghera and his counsel. The Crown has called six witnesses to this point in a trial. In addition, extensive admissions of fact have been made by both counsel and are contained in the booklet that is filed as trial Exhibit Number 1. 5 Ms. Manpreet Sidhu testified that as a claims adjuster she dealt with an insurance claim made to ICBC by Mr. Sanghera as a result of injuries suffered by Mr. Sanghera in a motor vehicle accident that occurred in Surrey on August 22nd, 2007. The claim was commenced on August 23rd, 2007. Ms. Sidhu identified the insurance claim application at tab C of Exhibit 1 as that filed by Mr. Sanghera on August 23rd, 2007. That application is made on a form known as a “CL24.” 6 Ms. Sidhu testified that Mr. Sanghera’s claim in part was for what is known as “Part 7 benefits.” Those benefits are paid pursuant to the provisions of Part 7 of the Insurance (Vehicle) Regulation of the Insurance (Vehicle) Act. Ms. Sidhu also testified that Mr. Sanghera’s claim related to total temporary disability (TTD) benefits within the Part 7 benefits. Ms. Sidhu testified that a claimant may be eligible for TTD benefits up to a maximum of $300 per week providing the claimant is not able to work and that the receipt of Employment Insurance benefits has expired for the claimant. 7 Ms. Sidhu identified tab A of Exhibit 1 as Mr. Sanghera’s report of his accident. She identified tab D of Exhibit 1 as a letter received by ICBC from Mr. Sanghera’s lawyer, Mr. Thomas. That letter enclosed a claim form designated as a “CL22” that was apparently signed by Mr. Sanghera and dated September 1st, 2007. Ms. Sidhu identified the medical report at tab E of Exhibit 1 as being provided to ICBC in relation to Mr. Sanghera’s claim. 8 Ms. Sidhu’s involvement with Mr. Sanghera’s claim ended in October of 2007 and management of the file was transferred to Ms. Michelle Maglio at that time. Ms. Maglio also testified as a Crown witness and she confirmed her involvement in dealing with Mr. Sanghera’s claim as a claims adjuster with ICBC. 9 Ms. Maglio assumed conduct of Mr. Sanghera’s file on October 29th, 2007. At that time, Mr. Sanghera was undergoing therapy treatments with a firm known as Karp Rehabilitation. The physiotherapist in charge of Mr. Sanghera’s treatment was Ms. Lindsay Kupskay. Ms. Maglio received a communication from Karp to the effect that there were concerns about Mr. Sanghera’s conduct in his rehabilitation program. 10 As a result of that information, Ms. Maglio retained the firm of Dolo Investi- gations to investigate the activities of Mr. Sanghera. That firm videotaped Mr. Sanghera appearing to be working on December 3rd and December 4th of 2007. That video is at tab Q of Exhibit 1. Dolo Investigations reported their observations to Ms. Maglio and Ms. Maglio then involved the Special Investigations Unit of ICBC. 84 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

11 Ms. Maglio identified documents at tabs G, H, I, J, and K of Exhibit 1 as documents she was familiar with in relation to Mr. Sanghera’s file. Of particular note, Ms. Maglio identified tab H as an email she sent to Mr. Thomas on De- cember 19th, 2007, in relation to Mr. Sanghera’s claim for TTD benefits. Ms. Maglio identified the email of January 8th, 2008, at tab N of Exhibit 1 as that which came to her that date from Ms. Bim Mahal in response to the email at tab H. 12 The content of tab N is a statement from Mr. Sanghera to ICBC through Ms. Mahal to the effect that he, Mr. Sanghera, had not worked or volunteered or assisted any employer since the accident and also had not received any compensation or earnings since the accident. Tab N of Exhibit 1 is an item of considerable importance in this trial. 13 Ms. Maglio also testified that she spoke to Ms. Mahal by telephone on Janu- ary 14th, 2008, and confirmed that Mr. Sanghera had told her what was contained in the email at tab N. Ms. Maglio testified that she again spoke to Ms. Mahal by telephone on January 23rd, 2008, and that the issue of Mr. Sanghera working was discussed and that Ms. Mahal said Mr. Sanghera was not working and was just assisting his wife by carrying a vacuum. 14 Two special investigators with ICBC have given evidence in this trial. They were Mr. Christopher Rinke and Mr. Darryl Mathieson. They testified as to their roles in investigating the work activities of Mr. Sanghera. They also gave evidence on a voir dire as to a conversation they had with Mr. Sanghera on January 10th, 2008, concerning his work activities. 15 Although that conversation was found to be admissible in evidence, the Crown to this point in the trial has not chosen to have the conversation admitted as part of its case. The defence takes the position that the conversation of Janu- ary 10th, 2008, cannot be considered on the subject ruling because it is not trial evidence. The Crown submits that the conversation can be considered because it could have been called on a separate evidentiary voir dire. 16 On this issue, I rule in favour of the Crown. In my opinion, the conversation of January 10th, 2008, is important evidence relating to the subject ruling and it will be considered. In that conversation, Mr. Sanghera admitted to the investigators that he worked at times at a janitorial job that involved cleaning at certain automobile dealerships. Mr. Sanghera told the investigators that, “He told his lawyer he does work sometime,” and that, “His lawyer was aware he had this contract.” 17 Ms. Lindsay Kupskay also testified as a Crown witness. She testified that she treated Mr. Sanghera as a physiotherapist for several weeks after his accident. Ms. Kupskay testified at some length as to her dealings with Mr. Sanghera. Ms. Kupskay’s evidence was generally to the effect that Mr. Sanghera was not trying as hard as he could to improve his physical condition and return to work. R. v. Sanghera B. Bastin Prov. J. 85

18 In the course of her evidence, Ms. Kupskay viewed the videos of December 3rd and December 4th of 2007 that are entered as part of Exhibit 1 at tab Q. The videos show Mr. Sanghera apparently working as a cleaner on those two dates. Ms. Kupskay testified as to the comparison between how she observed Mr. Sanghera at the therapy sessions and how he appeared on the video. 19 The last witness called by the Crown to this point in the trial was Ms. Bim Mahal. She testified that she is a legal assistant with the law firm of Simpson Thomas & Associates and has been so since 1998. She testified that she worked as a legal assistant to Mr. Anthony Thomas and that in that capacity she had dealings with Mr. Sanghera and his insurance claim. Ms. Mahal testified that her firm represented Mr. Sanghera in relation to an insurance claim for damages against ICBC made by Mr. Sanghera. 20 Ms. Mahal testified that her firm was retained by Mr. Sanghera on Septem- ber 1st, 2007, and has acted for him continuously. She testified that the only lawyer involved in the file was Mr. Anthony Thomas and that she was the primary legal assistant dealing with the file. 21 Ms. Mahal identified the email that is at tab H of Exhibit 1 as being received by Mr. Thomas from ICBC on December 19th, 2007, in relation to Mr. Sanghera’s claim for Part 7 benefits. Ms. Mahal testified that she spoke to Mr. Sanghera by telephone on a date she believed to be January 8th, 2008, and that she asked Mr. Sanghera questions related to the issues identified in the ICBC email of December 19th, 2007. 22 Ms. Mahal testified that Mr. Sanghera answered the questions and that his answers essentially were as she set out in her email of January 8th, 2008, sent to ICBC. That email is tab N of Exhibit 1. Ms. Mahal testified that she told Mr. Sanghera she had to ask the questions in order for him to get disability benefits and that she would send his responses to the adjuster. 23 Ms. Mahal identified the documents at tab J, K, L, and M of Exhibit 1 as documents related to Mr. Sanghera’s claim. Ms. Mahal agreed that she had a telephone conversation with Ms. Maglio after January 8th, 2008, wherein she confirmed the contents of her email at tab N. Ms. Mahal testified that she spoke to Ms. Maglio on January 23rd, 2008, to follow up with Mr. Sanghera’s claim. Ms. Mahal testified that she did not recall telling Ms. Maglio in that conversation that Mr. Sanghera had told her that he had only been helping his wife by carrying a vacuum. 24 Crown counsel sought to ask Ms. Mahal several questions about communications between members of her law firm and Mr. Sanghera. The defence objected to those questions on the grounds of solicitor-client privilege. It is the admissibility of the subject matter of those questions that is to be decided in this ruling. 25 Crown counsel has furnished the court and defence counsel with a written summary of the areas of communication between Mr. Sanghera and his counsel 86 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

upon which the Crown seeks to question Ms. Mahal or Mr. Thomas. Some of the areas were not contested by the defence and evidence related to those areas has already been given in the trial by Ms. Mahal. The three remaining areas that are contested by the defence are as follows: 1. “Communications between Sanghera and Mahal, Thomas, or anyone else in the firm regarding having returned to his janitorial work in December ’07 to January ’08”; 2. “Instructions to Mahal or Thomas to apply for TTD benefits on his behalf”; and 3. “Discussions and advice to Sanghera regarding the legality of working while applying for or being in receipt of TTD benefits including any discussions as to the meaning of ‘work’ and the scope of what must be disclosed to ICBC.” 26 I will refer in this ruling to those areas of proposed questioning by their numerical designation. Counsel for the defence did not challenge the admissibility of what information Ms. Mahal gave to Ms. Maglio on behalf of Mr. Sanghera on January 8th, January 14th, and January 23rd of 2008. That information related to what Ms. Mahal had been told by Mr. Sanghera on certain sub- jects that were addressed earlier in this ruling. 27 The defence does contest the admissibility of any evidence that would come in response to the three areas of proposed questioning of Ms. Mahal or Mr. Thomas by Crown counsel. Those three areas have been set out above. The defence position in respect of those three areas is simply that they are the subject matter of solicitor-client privilege and cannot be accessed by the Crown. 28 The law relating to solicitor-client privilege was fully and clearly set out by the unanimous decision of the Supreme Court of Canada in the case of R. v. McClure, [2001] S.C.J. No. 13 (S.C.C.). At paragraph 2 of that judgment, this was said by the court: Solicitor-client privilege describes the privilege that exists between a client and his or her lawyer. This privilege is fundamental to the justice system in Canada. The law is a complex web of interests, relationships and rules. The integrity of the administration of justice depends upon the unique role of the solicitor who provides legal advice to clients within this complex system. At the heart of this privilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented. 29 The court in McClure held that solicitor-client privilege is a substantive rule of law in Canada and has a unique status within our legal system. The court stated that solicitor-client privilege is not absolute, but must be as close to absolute as possible. The law is clear that the privilege is exclusively that of the client. R. v. Sanghera B. Bastin Prov. J. 87

30 There is a difference in how solicitor-client privilege applies in a criminal case as opposed to a civil case. This was noted by Mr. Justice N. Brown in the case of R. v. Fast, 2009 BCSC 1671 (B.C. S.C.), where at paragraph 38, he said: ... judges should consider civil law cases on privilege with caution when applying the principles to a criminal case. 31 The difference between civil and criminal cases in relation to solicitor-client privilege is that the defendant in a civil case is a compellable witness, but is not in a criminal case. The subject prosecution is a quasi-criminal case wherein the defendant is not a compellable witness. 32 There are three circumstances well recognized by the authorities and relevant to this case where solicitor-client privilege does not apply. The first is where the communication between the solicitor and the client is not made in confidence; that is, the communication is made in circumstances where the parties did not intend to keep the communication secret or confidential. 33 The second circumstance is where the client has waived the privilege. It was noted at paragraph 39 of the Fast case: Waiver can be voluntary, implied or inadvertent. Waiver may be viewed in some cases as the loss of solicitor-client privilege. 34 The third circumstance where solicitor-client privilege is pierced or is lost or does not apply and that is relevant to this case is known at law as the “criminal purpose exception” or the “future crimes and fraud exception.” This exception was considered by the Supreme Court of Canada in the case of Descˆoteaux c. Mierzwinski, [1982] S.C.J. No. 43 (S.C.C.), where it was held that communications between a lawyer and a client which are criminal in themselves or that are made with a view to obtaining legal advice to facilitate the commission of a crime will not be privileged. I will refer to this exception to solicitor-client privilege as the fraud or criminal purpose exception. 35 The law relating to solicitor-client privilege is clear that the privilege ex- tends to communications between the client and an assistant of his lawyer provided that the assistant is acting in a professional capacity at the time of the communication (see Descˆoteaux c. Mierzwinski at page 8). Therefore, the solicitor-client privilege in this case applies to communications between Mr. Sanghera and Mr. Thomas’ legal assistant, Ms. Mahal. 36 I will now deal with each of the three areas of questioning of Ms. Mahal and/or Mr. Thomas that the Crown seeks to pursue. The first of these areas concerns communications between Mr. Sanghera and Mr. Thomas or Ms. Mahal regarding Mr. Sanghera having returned to work in the time period from Decem- ber 2007 to January 2008. 37 The Crown submits that the solicitor-client privilege of Mr. Sanghera in relation to those communications has been lost or does not apply because of Mr. Sanghera’s statement to the ICBC investigators on January 10th, 2008, to the 88 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

effect that he told his lawyer that he did work sometime. The Crown also submits that the communications about returning to work are admissible in evidence pursuant to the fraud or criminal purpose exception to solicitor-client privilege. Counsel for the Crown also argues this exception in relation to other areas of proposed questioning of Ms. Mahal or Mr. Thomas. 38 The position of the Crown in relation to the fraud or criminal purpose exception begins with the submission that a claimant for TTD benefits pursuant to Part 7 of the Insurance (Vehicle) Regulation is not legally entitled to work or receive income while in receipt of those benefits. It is submitted that as at De- cember 3rd, 2007, because of what is shown of Mr. Sanghera on the video of that date (tab Q of Exhibit 1), Mr. Sanghera was working and receiving income. Therefore, it is submitted that a prima facie case of fraud exists after that date to permit the Crown to question Mr. Sanghera’s legal advisors on all communications related to that subject matter. 39 The Crown submits that the evidence of fraud is strengthened by Mr. Sanghera’s statements to Ms. Mahal on January 8, 2008, to the effect that he was not working; by the video of an ICBC investigator showing Mr. Sanghera apparently working on January 9, 2008; and by Mr. Sanghera’s statements of January 10, 2008, to the ICBC investigators to the effect that he did work at times. 40 Counsel for the Crown has referred the court to the following authorities that deal with the fraud or criminal purpose exception to solicitor-client privilege: 1. R. v. Bennett, [1963] B.C.J. No. 67 (B.C. S.C.); 2. R. v. Wijesinha, [1995] S.C.J. No. 49 (S.C.C.); and 3. Todoruk v. Trapp, 2005 BCSC 1702 (B.C. S.C. [In Chambers]). 41 I will now return to address area number 1 of the Crown’s proposed questioning. The position of the defence in this area is that Mr. Sanghera’s statement about telling his lawyer about working only came to light as a result of questioning by ICBC investigators. The defence submits that by application of the reasoning of the court in the Fast decision, the Crown should not be permitted to use Mr. Sanghera’s statements to ICBC investigators to, in effect, open the door to question his legal advisors about communications related to Mr. Sanghera’s return to work. 42 The defence also submits that the fraud or criminal purpose exception does not apply to this proposed area of questioning. In the Fast decision, Mr. Justice Brown commented as follows at paragraph 56: However, both civil law and criminal cases invoke the principle of trial fairness to protect privilege in cases where counsel manoeuvres a witness into referring to a privileged document while under cross-examination. 43 In my opinion, that principle is analogous to the circumstances of the case at bar and ought to be applied to this case. I, therefore, rule that Mr. Sanghera’s R. v. Sanghera B. Bastin Prov. J. 89

statement to ICBC investigators on January 10th, 2008, to the effect that he told his lawyer he was doing some work does not act as a waiver to pierce Mr. Sanghera’s solicitor-client privilege in relation to communications regarding that subject. I, therefore, rule that the Crown will not be permitted to question Ms. Mahal or Mr. Thomas about communications with Mr. Sanghera regarding the subject matter of area number 1 of the Crown’s proposed questioning. 44 I turn now to address area number 2 of the Crown’s proposed questioning which relates to Mr. Sanghera’s instructions to counsel to apply for TTD benefits on his behalf. Here, the Crown submits that such instructions must have been given in light of all the communications between Mr. Thomas’ office and ICBC. The Crown submits further that solicitor-client privilege is waived or does not apply to these instructions because they were clearly intended to be communicated to a third party, that is, ICBC. 45 This submission by the Crown would appear to have merit, but the Crown goes further and submits that any communication between Mr. Sanghera and his counsel after December 3rd, 2007, concerning his application for TTD benefits can be accessed by Crown questioning by application of the fraud or criminal purpose exception to solicitor-client privilege and/or by application of the principle of waiver. The Crown submits that waiver flows from Mr. Sanghera’s statements to Ms. Mahal on January 8th, 2008. 46 The defence strongly objects to this submission and counters by submitting that the Crown is speculating as to the existence of any such communications. The defence submits that waiver and the fraud or criminal purpose exceptions for solicitor-client privilege do attach to the communication of January 8th, 2008, between Mr. Sanghera and Ms. Mahal, but that that circumstance does not entitle the Crown to question Ms. Mahal or Mr. Thomas on any or all communications related to Mr. Sanghera’s application for TTD benefits. The defence submits that the Crown cannot go beyond the actual statements made by Mr. Sanghera and their immediate context. 47 In this area, I uphold the position of the defence. I agree with the defence submission that Mr. Sanghera’s statements to Ms. Mahal on January 8, 2008, did not constitute a waiver of his solicitor-client privilege relating to communications about his application for TTD benefits. 48 I also agree with the defence submission that the fraud or criminal purpose exception to solicitor-client privilege applies only to the actual communication of January 8, 2008, and does not permit the Crown to explore other possible communications related to Mr. Sanghera’s application for TTD benefits. 49 In my opinion, it would violate the law of solicitor-client privilege to permit the Crown to question Mr. Sanghera’s legal advisors about all communications related to his application for TTD benefits simply because he made that application on or about September 7th, 2007, and made statements to Ms. Mahal about it on January 8th, 2008. To permit the Crown to ask the questions sought to be 90 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

asked in this area would open up questioning of Ms. Mahal and Mr. Thomas on virtually the whole of their relationship with Mr. Sanghera. In my opinion, that is simply not appropriate or permissible. I, therefore, rule that all questions sought to be asked by Crown counsel of Ms. Mahal and Mr. Thomas in relation to what has been designated as area number 2 will not be permitted. 50 I turn finally to area number 3 of the proposed questioning of the Crown which concerns any discussions about “work” or “working” that Mr. Sanghera may have had with Ms. Mahal or Mr. Thomas. In my opinion, these areas of communication, if they occurred, are clearly covered by solicitor-client privilege. 51 In my opinion, it cannot be said that any such communications were not covered by solicitor-client privilege because the privilege was waived by Mr. Sanghera or because the fraud or criminal purpose exception applies. As I have ruled above, waiver does not flow from Mr. Sanghera’s statement to Ms. Mahal on January 8, 2008, or from Mr. Sanghera’s statement to ICBC investigators on January 10th, 2008. The existence of any communications between Mr. Sanghera and his legal advisors concerning “work” or “working” is speculative. That speculation is not sufficient to invoke the fraud or criminal purpose exception to solicitor-client privilege. 52 I rule that the Crown will not be entitled to question Ms. Mahal or Mr. Thomas concerning the subject matter of area number 3 of the proposed questioning. 53 For the reasons set out herein, I rule that the Crown will not be permitted to question Ms. Mahal or Mr. Thomas in any of the three proposed areas of questioning that have been referred to in this ruling. Accordingly, I rule that all of the defence objections to the questions put to Ms. Mahal by Crown counsel are sustained and those questions will not be permitted. Evidence inadmissible. Knechtel Brothers Ltd. v. Portside Enterprises 91

[Indexed as: Knechtel Brothers Ltd. v. Portside Enterprises] Knechtel Brothers Ltd., Plaintiff and Portside Enterprises and Michael Travani, Defendants Ontario Superior Court of Justice Robert Lefebvre D.J. Heard: September 15, 2010 Judgment: September 16, 2010 Docket: Brantford SC-09-205 Dayna Gulka, for Plaintiff Michael Travani, for himself Contracts –––– Performance or breach — Breach — Miscellaneous –––– Defendant sold used vehicles, including vehicles that had been “branded”, meaning that vehicle had been insurance total loss and could only be transferred as unfit vehicle until rebuilt, inspected for structural integrity and certified as such — Defendant had branded truck for sale for $16,900 “as is” — Plaintiff and defendant came to verbal agreement on sale of branded truck, and then discussed option for rebuild of truck — Meeting of minds resulted in written contract to sell “rebuilt” truck for $20,000 plus applicable taxes — Par- ties were both aware that truck would not be repaired immediately, but it was expected to be repaired in reasonable time — Plaintiff became impatient and located replacement doors, then, after waiting 10 weeks, plaintiff demanded possession of truck — After obtaining several quotes, plaintiff returned to defendant to come to new agreement regarding rebuild — Defendant contracted with different body shop to expedite process — When work was completed, body shop contacted defendant for payment but he did not respond to calls so plaintiff attended and paid for repair work and took truck into his own custody — Plaintiff paid additionally for work required for truck to pass safety inspection, as well as towing charges — Plaintiff brought action for damages — Action allowed in part — First breach of contract was defendant’s failure to have truck’s repair started within 6 weeks of contract — First breach was addressed by defendant arranging for repairs to be started at another body shop, then plaintiff breached contract by seizing possession and control of truck — Plaintiff’s breach was motivated by investment he made in untraceable replacement doors and not by delay, and by this he effectively abandoned his claims against defendant — Defendant failed to complete his obligations under “rebuild” contract in reasonable time, and would have been required to pay damages equal to cost of renting replacement vehicle from September to January — While both parties were equally at fault for breach for delay in starting repair process, plaintiff was completely responsible for second breach, and his action in forcing delivery of truck was not justified — Defendant was ordered to refund plaintiff sum of $3,500 which was estimate of unearned portion of original rebuild contract, plus $1,000 for defendant’s half share of responsibility for initial delay. Remedies –––– Damages — Damages in contract — Sale of goods –––– Defendant sold used vehicles, including vehicles that had been “branded”, meaning that vehicle had been 92 MOTOR VEHICLE REPORTS 4 M.V.R. (6th) insurance total loss and could only be transferred as unfit vehicle until rebuilt, inspected for structural integrity and certified as such — Defendant had branded truck for sale for $16,900 “as is” — Plaintiff and defendant came to verbal agreement on sale of branded truck, and then discussed option for rebuild of truck — Meeting of minds resulted in written contract to sell “rebuilt” truck for $20,000 plus applicable taxes — Parties were both aware that truck would not be repaired immediately, but it was expected to be repaired in reasonable time — Plaintiff became impatient and located replacement doors, then, after waiting 10 weeks, plaintiff demanded possession of truck — After obtaining several quotes, plaintiff returned to defendant to come to new agreement regarding rebuild — Defendant contracted with different body shop to expedite process — When work was completed, body shop contacted defendant for payment but he did not respond to calls so plaintiff attended and paid for repair work and took truck into his own custody — Plain- tiff paid additionally for work required for truck to pass safety inspection, as well as towing charges — Plaintiff brought action for damages — Action allowed in part — First breach of contract was defendant’s failure to have truck’s repair started within 6 weeks of contract — First breach was addressed by defendant arranging for repairs to be started at another body shop, then plaintiff breached contract by seizing possession and control of truck — Plaintiff’s breach was motivated by investment he made in untraceable replacement doors and not by delay, and by this he effectively abandoned his claims against defendant — Defendant failed to complete his obligations under “rebuild” contract in reasonable time, and would have been required to pay damages equal to cost of renting replacement vehicle from September to January — While both parties were equally at fault for breach for delay in starting repair process, plaintiff was completely responsible for second breach, and his action in forcing delivery of truck was not justified — Defen- dant was ordered to refund plaintiff sum of $3,500 which was estimate of unearned portion of original rebuild contract, plus $1,000 for defendant’s half share of responsibility for initial delay. Statutes considered: Courts of Justice Act, R.S.O. 1990, c. C.43 Generally — referred to Highway Traffic Act, R.S.O. 1990, c. H.8 Generally — referred to s. 100 — referred to Rules considered: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 Generally — referred to Regulations considered: Highway Traffic Act, R.S.O. 1990, c. H.8 Safety Inspections, R.R.O. 1990, Reg. 611 Generally — considered

ACTION by buyer for damages arising from breach of contract for purchase of vehicle. Knechtel Brothers Ltd. v. Portside Enterprises Robert Lefebvre D.J. 93

Robert Lefebvre D.J.:

1 This matter was tried on Wednesday Sept. 15, 2010 at Brantford. Mr. James Knechtel testified for the plaintiff company. Mr. Michael Travani testified as the representative of the unincorporated defendant and on his own behalf. 2 The defendant has been in business 16 years and offers vehicles for sale to the public as a used car dealer licence holder. 3 His business specializes in offering “branded” vehicles for rebuild and resale to the public. Ontario’s Highway Traffic Act and the regulations promulgated under section 100 define when a vehicle will be considered legally “written off” for Highway Traffic Act purposes. This is not necessarily the same as “written off for insurance settlement purposes, which has an additional economic viabil- ity aspect. 4 To protect the highway system and its users from encountering structurally unsafe vehicles, and to protect the public from unsuspectingly buying vehicles that have suffered damages of the type set out in R. R. O. 611, the Act and the regulations require that any vehicle that has been inspected after an accident or immersion or a fire and on which the inspector finds prescribed damage be branded, that is, its title records for Ontario will show the vehicle was found to be an insurance total loss, and the vehicle can only be transferred as an unfit vehicle not for on road use, unless and until the vehicle is rebuilt, inspected for structural integrity and certified as to its structural integrity by a person authorized to do so under the Highway Traffic Act. When this structural integrity is resolved it can then be sold, and after a normal safety check and e-test, it can be registered and sold to the consuming public for on road use. The vehicle’s per- manent record will always show the “branding” episode henceforth, hopefully protecting all subsequent potential Ontario buyers. 5 I find that the defendant took possession of salvaged, branded vehicles, thought to be candidates for structural re-certification on a consignment basis. They held some of these vehicles on their lot for show to the public. 6 In June of 2008 their inventory included a Gold 2006 Dodge Ram 2500 VIN 3D3KS28C96G251432 which had been T-boned and written off. Knechtel Brothers found the truck as an appealing option to its vehicle fleet needs. James Knechtel spotted it on the lot and made further inquires. The truck was adver- tised and offered for sale at $16,900.00 “as is”. 7 In regard to this Gold 2006 Dodge Ram 2500 I find the defendant clearly disclosed the key detail of the vehicle history; that is this Gold 2006 Dodge Ram 2500 vehicle that was the subject of an insurance total loss, and was therefore “branded.” 8 Being un-repaired, the photos show the vehicle was hit solidly from the passenger side, and damaged doors, and cab structure would need repairing. Tape 94 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

held the doors closed, and attempted to provide some seal for the truck’s interior decor. 9 The defendant does not only resell branded vehicles. The defendant also, on average of five times a month, takes the damaged vehicles in hand for their buyers, and gets them repaired, repainted, structurally recertified and safety checked. 10 I have interpreted the evidence that, with his contacts in the industry and his volume, and his inventory and supply lines for parts, the defendant finds he can get this work done economically, and increase his margin on sales. Travani testifies his body shop contact, Tony at T & T provides him with a flat rate for each type of body style and related damage. T & T, we are advised, provides Portside with one price for a full sized pick-up truck and another price for a “Toyota Corolla”, etc. Travani testified that he knew when he negotiated with Knechtel that his paint and body work would cost $2,500.00, but to access that price he would have to take his turn in the queue, and could not expect priority treatment, overnight service or rush service. (My words, not the words of any of the witnesses.) 11 After coming to a verbal agreement on the vehicle sale in “as is” condition Travani offered or Knechtel inquired about the rebuild option. A meeting of the minds resulted in a written contract to sell the ”rebuilt” vehicle to Knechtel Brothers Limited for $20,000.00 plus applicable taxes, for a grand total of $22,600.00. 12 I find the contract on the UCDA form for a used Vehicle Bill of Sale, form 25762.01/36769 was completed on the three part white / canary / pink triplicate form and executed by the parties on June 30, 2008. The words “truck is rebuilt, “Insurance Total Loss” and “MTO Brand” all appear on the contract, each time, I find as notice or warning to the buyer that this vehicle has a branded history. 13 There was testimony led to suggest the plaintiff thought the contract form had been manipulated by the defendant. I see no evidence of that whatsoever. The highlighting and signature detail do not raise any suspicious circumstances for me. The highlighted portions photocopy differently than non-highlighted portions and I saw no evidence of attempted obliteration. Signatures, the evidence says, on the three-colour UDCA form are not automatically duplicated on the canary copy. 14 Sadly there was another contract between the vendor and the purchaser no part of which was reduced to writing. The UCDA form has the standard “whole contract” and “no verbal promises” language but we are forced to examine parole evidence to establish the “real” contract. The vehicle was not “rebuilt” as set out in the warnings in the written contract but clearly “to be rebuilt.” 15 Mr. Travani testified and argued that he has been told he had two contracts, one to sell and one to rebuild, and that his shortcut in combining all of the concepts into one document is at least partly to blame for the dispute between the Knechtel Brothers Ltd. v. Portside Enterprises Robert Lefebvre D.J. 95

parties. The “two contract” concept rings true for me here, and I find I must look beyond the UDCA contract to find its terms, and the rights that flow from the facts that follow. 16 I find both parties knew the vehicle would not be ready immediately. I find that both parties knew from their discussions that the vehicle would be in a queue to get access to the body shop for the straightening, parts replacement, and paint it would need to be “rebuilt.” Travani testifies he told Knechtel the vehicle would not enter the body shop for three to six weeks, and he would have to be patient. Knechtel testified that he was told the vehicle would first enter the body shop within three weeks. I find that Travani’s evidence on this point is more credible, at least so far as the mentioned period of three to six weeks. If he mentioned “patience” at the time of contracting, I am far less certain. 17 Travani testifies he does not own the body shop. He testifies his business once owned and operated a body shop, and that he trained with his father, a licensed body shop professional. His new, smaller location and his confidence in Tony at T & T helped him make the business decision not to have a body shop on site. 18 This court finds that the repair contract between Portside and Knechtel consists of the following terms: Included in the purchase price will be a rebuilding of the vehicle so that it is road worthy, safety checked, with fresh new looking bodywork and paint. The body work will start within 6 weeks of June 30, 2008, and will eventually be completed in a reasonable time, but with no agreed delivery date. 19 I find as a fact that Knechtel started to lose patience and had a reduced level of comfort with the “rebuild” contract when the vehicle was still on the Portside lot three weeks after the deal was signed. By six weeks he was out of patience and really frustrated. His business e-mails exude irritation. Travani comments on Knechtel’s imposing size and “in your face” demeanour, neither of which was hidden from the court today, and Travani admits he too found the deal exasper- ating. Travani does not seem to do all he could to keep Knechtel informed, but his e-mails are, in my opinion many degrees cooler than those of the plaintiff. Travani should have been updating Knechtel on parts sourcing efforts, and providing Knechtel with the best most accurate and up to date information he could gather from T & T about the queue. When Tavani minimized his customer service obligation, it was, in part due to Knechtel’s hostility, but it was a public relations or entrepreneurial failure. Businesses prosper when they get paid for their work and focus on customer needs. 20 I find it was part of Travani’s unwritten “rebuild” contract that he source the parts needed to do this job. A flow chart of the job would seem to indicate that we will need Dodge doors and a Dodge pick up centre right door post and miscellaneous body panels to finish this job, and that we would need them on hand before the frame straightening, bodywork and paint work could go ahead. 96 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

21 The evidence is not clear on when, but Travani testifies and I find that he sourced and received passenger side Dodge pick-up truck doors, and a stripped down Dodge pick-up truck passenger compartment from which a door post could be extracted and he obtained these items at his own expense to be used in the restoration or rebuilding of the Knechtel truck. 22 Working separately, Knechtel seems to have concluded getting the doors may be slowing things down, so he too bought two doors. He informed Travani he had the replacement doors, and asked that they be used in the rebuild. Travani agreed, on condition he would have enough data to properly fill in the VIN number of the vehicle from which the doors were sourced, or at least a written receipt from the provider. 23 This testimony has a strong ring of credibility to it, because Travani’s experience made him well aware that he was going to have to sign off on Ontario Ministry of Transport structural re-certification form on which an authorized person must record the parts in this fashion. Ontario regulates the movement of vehicle parts, like it regulates the branded vehicle rebuilding process, no doubt in an effort to curb “chop shop” activity. He also pointed out he would be looking at a 20% restocking charge of the doors he had received. He also knew that the stripped down Dodge passenger compartment would cost him $1,000.00, but after he cut off what he needed he would be able to get back something for the usable parts he returned. His e-mail shows he raised this point immediately when the issue of doors in the possession of Knechtel came to light. 24 I conclude that Knechtel made some effort to supply the needed data, as he forwarded photographs of various other Dodge parts he acquired, showing, for instance a code number on a sticker on a pick-up truck box, hoping it would be accepted as the VIN number for the doors. While he did this, the truck waited. 25 Knechtel eventually became frustrated, whether by the fact that ten weeks had passed and the vehicle was not yet in the shop, or because his parts investment was starting to look useless, and he attended and demanded possession of his truck. Travani found there was no talking to him, and turned it over to him. Knechtel drove the truck away without plates, down the streets of Brantford foregoing, for this trip, the use of a tow truck or a flat bed. 26 I find as a fact that Knechtel took the vehicle to many area shops to get quotes on the work to be done to rebuild his Dodge. Knechtel found the quotes were not to his liking, that is, the quotes for mechanical repairs and bodywork were much higher than the notional repair budget that arose from his negotia- tions at the time of the purchase. The notional repair budget I find, as testified to by Travani, was $5,000.00 plus tax. 27 I find that Travani was aware from his industry contacts that quotes were being obtained, and he concluded that he would not have the opportunity to compete the rebuild contract. I find he recognized he was indebted to Knechtel because he had been paid to rebuild the car, and he had not done it. I find he was Knechtel Brothers Ltd. v. Portside Enterprises Robert Lefebvre D.J. 97

uncertain exactly how much he was indebted to Knechtel, but he did not think it was zero. 28 After Knechtel saw the quotes, he also determined that he was indeed going to have to supply VIN numbers for doors and the door post to get through the administrative process of structural certification. He returned to Portside prepared to have Portside undertake the rebuild, again. Travani agreed, and also agreed to send the vehicle to CT or Car & Truck Auto Collision at 663 Col- borne, Brantford. Travani testifies he would accelerate the rebuild process by sending the Dodge and his stripped down Dodge passenger compartment frame to Stacey at CT, and have them start the process. It is the evidence of Travani that he agreed to pay $1,000.00 for this work and he expected it would result in no savings in the subsequent body shop costs he would incur on this job at T & T, because of their flat pricing agreement. It would, however, kick start the rebuild, might save time at T & T, and would accomplish that one term we have for the parole contract, that the work would start, if not in three weeks or six weeks at least in a reasonable time, given all that had happened. I see here an honest effort to provide good customer service, above and beyond the motiva- tion of profit. 29 CT had lots of input from Knechtel. He was an active and invested customer. He arranged the delivery of the truck to them for repair. He expedited things by arranging the delivery of the Dodge pick-up passenger compartment from a private location where Travani had it, to CT. When the CT personnel advised they needed doors to properly install the doorpost, he produced his doors with the missing VIN history and they installed them. When the work was done and CT contacted Portside for payment, he was informed by CT that Mr. Travani was not responding to their call for payment. Mr. Travani testified he was absent from work due to holidays, but Knechtel concluded or suspected Travani’s financial difficulties were the cause. Knechtel attended and paid in cash the price demanded by TC. 30 Stacey Cromwell swears in an affidavit accepted as an exhibit that their firm replaced a rocker panel, replaced the sheet metal on the right side of the cab, clipped the right door opening with the rocker panel and installed used doors on the right side of the vehicle. The Cars Trucks & Auto Collision (CT) invoice states they set and pulled the right cab sheet metal, repair right door opening with rocker panel repaired by installing right doors, all on a 2006 Dodge Ram pick-up VIN 3D3KS28C96G251432, and that customer supplied parts were being installed. 31 When Knechtel personally paid CT he realized he did not have to take the truck back to Travani, and I think he saw a method of salvaging his investment in parts, to wit, the doors, and perhaps a better box, that being a box that had never been penetrated by the holes on which a fifth wheel hitch is attached to a 98 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

pick-up. The subject truck had been mounted with a fifth wheel hitch at some time. 32 After paying the bill at CT, Knechtel took the truck into his own custody, permanently. He paid the Auto Clinic to try to safety it, and to quote on the work needed to safety check it. Knechtel paid for it to be towed from place to place, yet it accumulated 70 additional kilometres on its odometer. 33 He got a body shop quote, he got body shop work done, and he got mechanical work done to get the vehicle safety checked. 34 Knechtel also took the vehicle to Brant Auto and asked them to issue under their authorization under the Highway Traffic Act the special form called a Structural Certificate to advise and inform the MTO that the repairs that branded this vehicle had been repaired, and sale and registration for on road use will be allowed. Knechtel admits he fraudulently provided clean VIN numbers for the parts incorporated in the rebuild to secure the needed structural certificate from Brant Auto. Structural Certificate # 1142621 was issued for Dodge Ram VIN 3D3KS28C96G251432 referencing supporting documents which referenced VIN numbers for parts not incorporated into the final rebuild. 35 To get his truck on the road I find Knechtel spent $1,522.68 at Cars Trucks & Auto Collision (CT) for repairs discussed previously, $5,957.13 at Brant Auto Painting for repair to doors, cab box, windshield and paint. Knechtel paid Alex Zahrybelny to repair bearings, u-joint, tire, and e-test, and to safety certify the vehicle, all in furtherance of obtaining a safety certificate. A claim for an air filter was abandoned. 36 Knechtel paid $210.00 for a structural check to Brant Auto painting, and paid $101.70 to Auto Clinic for an estimate and a failed safety test, July 17, 2009. He testifies he paid Diamond Towing, $157.50 and $89.25 for tows needed to accomplish the relocation of his truck to accommodate his repairs, and Canada Post $8.00 for registered mail and Ontario Ministry of Transportation $10.00 to transfer the vehicle into his name, in unfit status. 37 He has estimates for further expenses, that being to replace a muffler, identified in the Auto Clinic estimate, but not found necessary for the Zahrybelny safety check of 08/24/2009 and $766.23 for a pair of matching running boards, used to replace (and leave him with matched) running board knocked out of service in the total loss crash. 38 Travani spent $1,000.00 plus unspecified tax, due on an unspecified billing date, for the Dodge pick-up passenger compartment, and two $200.00 restocking charges for two Dodge doors. He was not required to spend the sum of $2,500.00 at T and T, and had no evidence about the inside or outside costs, if any, he might have experienced in finishing the rebuild after the paint was applied. I conclude all of the bearing, tire and u-joint work Zahrybelny found to issue a safety certificate was required. I find that Knechtel’s claim for tire work is resolved by the Zahrybelny tire work, as billed. Knechtel Brothers Ltd. v. Portside Enterprises Robert Lefebvre D.J. 99

39 The legal dispute arises from experienced businessmen taking far too much for granted. They took no time to address what was expected by the contracting parties, what might go wrong, and things that should have been the subject of negotiation in a written agreement become the subject of parole evidence. 40 I must determine how to distribute the blame for this short sightedness. The first breach is Travani’s failure to get this vehicle in the shop within six weeks. No penalty is provided for this breach but it contributes to the problem, and highlights the failure of their contract to supply needed terms. I find they share this short sightedness equally. 41 This failure set up what could have been a second failure, which was to deliver in a reasonable time. 42 I find they put the deal back together, and Travani attempts to jump start the solution by getting things going at CT, curing or at least addressing his first breach, then Knetchal breaches the contract by seizing possession and control of the vehicle, and “general contractor” status on the remainder of the rebuild. I find he was motivated by the investment he made in untraceable Dodge doors, and not by delay, and with that step he effectively abandoned his claims against Travani. 43 As a result I hold that Travani failed to complete his obligations under the parole “rebuild” contract in a reasonable time when he failed to have the work started within ten weeks of June 30, 2008. No one expected the work to be done instantly once started, but I find a reasonable additional time would have been three more weeks, or Oct, 8, 2008. 44 He would have been required to pay damages to Knechtel equal to the cost of renting a replacement full size, similarly luxurious or simple pick-up truck from Sept. 15, 2008 until such time as he delivered the truck. Knechtel removed the truck not once, but twice, in January 2009, after the CT repairs, Sept. 15, 2008, making it impossible for Travani to ever complete. 45 The contract is not frustrated in the statutory sense. Although this is a supervening event, the removal of the vehicle from Travani’s control, the supervening event must be beyond the control of both parties. 46 Knechtel’s removal of the vehicle was a breach of contract. Unlike the breach for delay in starting the repair process, for which both parties are equally at fault, Knechtel is completely responsible for this breach. His only justification is delay, and his action of forcing delivery of the vehicle to himself from CT, was, in hindsight, not justified. Knechtel convinced himself, but not the court, that there was evidence of forgery, financial instability and misconduct beyond delay in completing a parole, unwritten contract to rebuild the Dodge pick-up. I am aware he testified that he found evidence of financial failures by Travani, and asked the court to conclude Travani’s credit and payment problems contributed to the delay, but I was not persuaded by his uncorroborated evidence, not explored at all on cross examination. 100 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

47 I therefore order and adjudge that the defendant, Portside / Travani, refund to the plaintiff, Knechtel, the sum of $3,500.00 as my best estimate of the unearned portion of the original rebuild contract. Further, for the initial delay for which Travani is one half responsible. I find that a reasonable portion of the delay could have been offset by $2,000.00 worth of rental payments, covering approximately two months, one half for which Travani will be held responsible. In reaching this conclusion I am taking judicial notice of a fact not entered into evidence by the parties. I do so on the basis that I am charged by the Rules and the Courts of Justice Act to fairly and efficiently adjudicate the matters before me, in the most expeditious manner. I find the total to be paid by the defendant to the plaintiff will not include any further recovery, 48 The defendant will pay the plaintiff the sum $4,500.00. Parties may make one page or 250 words of written submissions on the question of costs and their costs submission can be submitted to me by fax at 519-756-2250 or by e-mail at [email protected]. within 10 days, after which I will consider a costs order. Action allowed in part. R. v. Mario 101

[Indexed as: R. v. Mario] Her Majesty the Queen and Michael Joseph Mario Alberta Provincial Court W.J. Cummings Prov. J. Judgment: September 17, 2010 Docket: Calgary 081184236P101001-002, 2010 ABPC 305 M. Juzwiak for Crown I. MacKay for Accused Criminal law –––– Offences — Driving/care and control with excessive alcohol — Presumption of alcoholic content at time of offence — Sample taken as soon as practicable –––– Accused was driving on highway when he was stopped by police who had followed him after another driver told them his driving was erratic — Accused was arrested at 1:52 a.m. and caution was read one minute later — Accused refused lawyer — Officers made arrangements for technician to meet them at station and for tow truck — Officers left location at 2:07 a.m. and arrived at station one minute later — Accused provided first sample at 2:32 a.m. and second sample at 2:54 a.m. — Accused was charged with driving with excessive blood alcohol level and impaired driving — Accused acquitted — Crown failed to prove breath sample was taken as soon as practicable as required by s. 258(1)(c)(ii) of Criminal Code — Twenty-two minute delay between accused arriving at police station and giving first breath sample was unreasonable — No evidence was presented as to reason for delay — Time it took for technician to arrive and for sample to be taken was not explained by any testimony and it would be inappropriate for court to draw inferences as to reasons for delay — Objective assessment of reasonableness of delay was not possible so court could not find sample was taken as soon as practicable. Criminal law –––– Offences — Driving/care and control with excessive alcohol — Proof by certificate of analysis of bodily substances — Admissibility of certificate — Effect of viva voce testimony –––– Accused was driving on highway when he was stopped by police who had followed him after another driver told them his driving was erratic — Accused was arrested at 1:52 a.m. and caution was read one minute later — Accused refused lawyer — Officers made arrangements for technician to meet them at station and for tow truck — Officers left location at 2:07 a.m. and arrived at station one minute later — Accused provided first sample at 2:32 a.m. and second sample at 2:54 a.m. — Accused was charged with driving with excessive blood alcohol level and impaired driving — Accused acquitted — Crown failed to prove they delivered certificate of analysis to accused as required by s. 258(7) of Criminal Code — Officer who testified as to delivery of certificate was inconsistent in his testimony about circumstances of accused’s arrest and processing — Officer did not make note of giving accused certificate of analysis and could not confirm he did it when testifying — Officer could not confirm form of certificate — Officer could not remember comparing original with copy — Of- ficer’s later testimony on giving accused certificate was not believable given his earlier uncertainty — Officer’s confusion and hesitancy on issue of what happened when he allegedly gave certificate to accused gave rise to concern about all of his evidence — 102 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

Crown could not prove certificate of analysis was delivered to accused beyond reasonable doubt — Crown failed to prove delivery even on lower standard and certificate could not be received into evidence — As Crown was unable to rely on certificate of analysis to prove alcohol content, accused was acquitted. Criminal law –––– Offences — Impaired driving/care or control — Elements — Im- pairment –––– Accused was driving on highway when he was stopped by police who had followed him after another driver told them his driving was erratic — Accused was arrested at 1:52 a.m. and caution was read one minute later — Officers made arrangements for technician to meet them at station and for tow truck — Officers left location at 2:07 a.m. and arrived at station one minute later — Accused provided first sample at 2:32 a.m. and second sample at 2:54 a.m. — Accused was charged with driving with excessive blood alcohol level and impaired driving — Accused acquitted — Crown failed to prove they delivered certificate of analysis to accused as required by s. 258(7) of Criminal Code and evidence was excluded — There was no other evidence of impaired driving other than excluded breath samples — Officers did not require intervention due to speeding but did observe some weaving — Officers actually found accused’s driving to be “not bad” — That officers noticed alcohol on accused’s breath was not proof of impairment — Minor weaving in accused’s driving pattern was insufficient to prove impairment without any other evidence. Criminal law –––– Charter of Rights and Freedoms — Onus and standard of proof –––– Accused was driving on highway when he was stopped by police who had followed him after another driver told them his driving was erratic — Accused was arrested at 1:52 a.m. and caution was read one minute later — Accused refused lawyer — Officers made arrangements for technician to meet them at station and for tow truck — Officers left location at 2:07 a.m. and arrived at station one minute later — Accused provided first sample at 2:32 a.m. and second sample at 2:54 a.m. — Accused was charged with driving with excessive blood alcohol level and impaired driving — Accused acquitted — Crown could not prove it delivered copy of certificate to accused — Section 258(1)(c) of Criminal Code allows certificates of analysis to be admitted as conclusive proof of accused’s alcohol level at time of driving but also requires proof of receipt of certificate by accused — Proof of compliance with s. 258(7) raises such important issue that proof on criminal standard should be required — Accused should have benefit of knowing s. 258(7) requirements are proved on criminal standard. Evidence –––– Proof — Standard — Proof beyond reasonable doubt –––– Accused was driving on highway when he was stopped by police who had followed him after another driver told them his driving was erratic — Accused was arrested at 1:52 a.m. and caution was read one minute later — Officers made arrangements for technician to meet them at station and for tow truck — Officers left location at 2:07 a.m. and arrived at station one minute later — Accused provided first sample at 2:32 a.m. and second sample at 2:54 a.m. — Accused was charged with driving with excessive blood alcohol level and impaired driving — Accused acquitted — Crown could not prove it delivered copy of certificate to accused — Section 258(1)(c) of Criminal Code allows certificates of analysis to be admitted as conclusive proof of accused’s alcohol level at time of driving but also requires proof of receipt of certificate by accused — Proof of compliance with s. 258(7) raises such important issue that proof on criminal standard should be required — R. v. Mario 103

Accused should have benefit of knowing s. 258(7) requirements are proved on criminal standard. Cases considered by W.J. Cummings Prov. J.: Miller v. Minister of Pensions (1947), [1947] 2 All E.R. 372 (Eng. K.B.) — followed R. v. Andrews (1996), 46 C.R. (4th) 74, 104 C.C.C. (3d) 392, 178 A.R. 182, 110 W.A.C. 182, 20 M.V.R. (3d) 140, 1996 CarswellAlta 7, [1996] A.J. No. 8 (Alta. C.A.) — referred to R. v. Bacon (2006), 2006 CarswellAlta 2432, [2006] A.J. No. 821 (Alta. Q.B.) — distinguished R. v. Buffalo (2009), [2010] 4 W.W.R. 675, 13 Alta. L.R. (5th) 180, 252 C.C.C. (3d) 390, 2009 ABPC 261, 2009 CarswellAlta 1372, 87 M.V.R. (5th) 129 (Alta. Prov. Ct.) — considered R. v. Buffalo (2010), 98 M.V.R. (5th) 229, 28 Alta. L.R. (5th) 136, 480 A.R. 284, 2010 ABQB 325, 2010 CarswellAlta 951, [2010] A.J. No. 553 (Alta. Q.B.) — considered R. v. Cambrin (1982), [1983] 2 W.W.R. 250, 1982 CarswellBC 671, 18 M.V.R. 160, 1 C.C.C. (3d) 59, [1982] B.C.J. No. 1989 (B.C. C.A.) — distinguished R. v. Chorney (2008), [2009] 3 W.W.R. 524, 175 C.R.R. (2d) 44, 452 A.R. 1, 2008 ABPC 206, 2008 CarswellAlta 967, 70 M.V.R. (5th) 286, 99 Alta. L.R. (4th) 375, [2008] A.J. No. 794 (Alta. Prov. Ct.) — considered R. v. Cosgrove (1993), 46 M.V.R. (2d) 99, 1993 CarswellAlta 383 (Alta. C.A.) — considered R. v. Duplessis (March 9, 2006), Doc. Edmonton 020805776S1, [2006] A.J. No. 660 (Alta. Q.B.) — followed R. v. Egger (1993), 21 C.R. (4th) 186, 15 C.R.R. (2d) 193, 141 A.R. 81, 46 W.A.C. 81, 45 M.V.R. (2d) 161, [1993] 2 S.C.R. 451, 153 N.R. 272, 82 C.C.C. (3d) 193, 103 D.L.R. (4th) 678, 1993 CarswellAlta 410, 1993 CarswellAlta 561, EYB 1993-66890, [1993] S.C.J. No. 66 (S.C.C.) — followed R. v. Goss (2008), 2008 ABPC 10, 2008 CarswellAlta 145, [2008] A.J. No. 116 (Alta. Prov. Ct.) — distinguished R. v. Hey (2009), 81 M.V.R. (5th) 130, 2009 CarswellAlta 776, 2009 ABCA 204 (Alta. C.A.) — considered R. v. Hiebert (2003), 237 Sask. R. 41, 2003 SKPC 89, 2003 CarswellSask 401, [2003] S.J. No. 398 (Sask. Prov. Ct.) — followed R. v. Jonasson (1997), 1997 CarswellAlta 647, [1997] A.J. No. 585 (Alta. Prov. Ct.) — considered R. v. Kicovic (2004), 2004 ABPC 190, 2004 CarswellAlta 1673, 377 A.R. 176, 25 C.R. (6th) 265, [2004] A.J. No. 1429 (Alta. Prov. Ct.) — considered R. v. Lifchus (1997), 118 C.C.C. (3d) 1, 216 N.R. 215, 150 D.L.R. (4th) 733, 1997 Car- swellMan 392, 1997 CarswellMan 393, 9 C.R. (5th) 1, 118 Man. R. (2d) 218, 149 W.A.C. 218, [1997] 3 S.C.R. 320, [1997] 10 W.W.R. 570, [1997] S.C.J. No. 77 (S.C.C.) — considered R. v. Mackinnon (2003), 177 O.A.C. 188, 2003 CarswellOnt 3827, 42 M.V.R. (4th) 205, [2003] O.J. No. 3896 (Ont. C.A.) — distinguished R. v. Mokelky (2008), 2008 CarswellAlta 1858, 2008 ABPC 343, 451 A.R. 346, [2008] A.J. No. 1317 (Alta. Prov. Ct.) — referred to R. v. Mudry (1979), 19 A.R. 379, 1979 CarswellAlta 156, 5 M.V.R. 23, 50 C.C.C. (2d) 518, [1979] A.J. No. 613 (Alta. C.A.) — considered 104 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

R. v. Nelson (2006), 2006 ABQB 297, 2006 CarswellAlta 519, [2006] A.J. No. 467 (Alta. Q.B.) — distinguished R. v. Nitschke (2006), 2006 CarswellAlta 661, 2006 ABPC 116, [2006] A.J. No. 609 (Alta. Prov. Ct.) — referred to R. v. Nitschke (2007), 2007 CarswellAlta 1874 (Alta. Q.B.) — followed R. v. Northcott (1995), 1995 CarswellAlta 913, 177 A.R. 94, [1995] A.J. No. 1015 (Alta. Q.B.) — followed R. v. Oleksyn (2004), 2004 CarswellAlta 1708, 2004 ABCA 407, [2004] A.J. No. 1468 (Alta. C.A.) — considered R. v. Oslowski (2006), 2006 CarswellOnt 8079, 2006 ONCJ 488, [2006] O.J. No. 5036 (Ont. C.J.) — considered R. v. Pearce (1984), 27 M.V.R. 128, 1984 CarswellBC 482, [1984] B.C.J. No. 1612 (B.C. C.A.) — considered R. v. Starr (2000), 2000 CarswellMan 449, 2000 CarswellMan 450, 36 C.R. (5th) 1, 2000 SCC 40, 190 D.L.R. (4th) 591, [2000] 2 S.C.R. 144, [2000] 11 W.W.R. 1, 147 C.C.C. (3d) 449, 148 Man. R. (2d) 161, 224 W.A.C. 161, 258 N.R. 250, [2000] S.C.J. No. 40, [1998] S.C.C.A. No. 141, REJB 2000-20233 (S.C.C.) — considered R. v. Van der Veen (1988), 89 A.R. 4, 1988 CarswellAlta 131, 61 Alta. L.R. (2d) 175, 44 C.C.C. (3d) 38, 11 M.V.R. (2d) 251, [1988] A.J. No. 710 (Alta. C.A.) — distinguished R. v. Wallace (2010), 2010 CarswellAlta 212, 2010 ABPC 38, [2010] A.J. No. 136 (Alta. Prov. Ct.) — followed R. v. Walsh (1980), 53 C.C.C. (2d) 568, 1980 CarswellOnt 16, 6 M.V.R. 125, [1980] O.J. No. 809 (Ont. C.A.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 8 — referred to s. 24(2) — considered Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 253(1)(a) — considered s. 253(1)(b) — considered s. 253(a) — referred to s. 253(b) — referred to s. 258 — considered s. 258(1)(c) — considered s. 258(1)(c)(ii) — considered s. 258(1)(c)(iv) — considered s. 258(1)(d) — considered s. 258(7) — considered

TRIAL of accused on charges of impaired driving and driving with excessive alcohol. R. v. Mario W.J. Cummings Prov. J. 105

W.J. Cummings Prov. J.: Introduction 1 Michael Joseph Mario is charged with the Criminal Code offences of driving with blood alcohol “over 80” and impaired driving. 2 On the “over 80” charge, the Crown argues they have proved delivery of the Certificate of Analysis on Mr. Mario under s.258(7) of the Criminal Code on what they say is the necessary standard of proof, the balance of probabilities. The Court disagrees and finds the criminal standard of proof should apply. On that standard, the Crown has failed to prove compliance with the section and the Certificate of Analysis is excluded from evidence. 3 If the Court errs in arriving at that conclusion, an extended analysis leads to the finding that a breath sample taken from Mr. Mario in the context of an unexplained 22 minute delay was not taken “as soon as practicable” under section 258(1)(c)(ii) of the Criminal Code. 4 The Crown is precluded from relying upon Criminal Code presumptions which might otherwise flow from the reception of the Certificate of Analysis relative to the “over 80” charge. 5 The Court also finds the Crown has failed to meet its onus on the impaired driving charge. 6 Acquittals are directed on both counts.

Facts 7 Mr. Mario stands charged on the information as follows: Count 1: On or about the 16th day of September, 2008, at or near Calgary, Alberta, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did unlawfully operate a motor vehicle, contrary to Section 253(a)(b) of the Criminal Code of Canada; and that he: Count 2: On or about the 16th day of September, 2008, at or near Calgary, Alberta, did unlawfully operate a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or a drug, contrary to Section 253(1)(a) of the Criminal Code of Canada. 8 The Crown called two witnesses, Calgary Police Service Constables Bruce Robinson and Robert Albers. Defence called no evidence. 9 No Charter argument was advanced but by agreement of Counsel, all evidence was heard in the context of a voir dire to consider the admissibility of a Certificate of Analysis. The Crown asks for a ruling on both counts, the impaired driving included, once that issue is determined. 10 I make the following findings of fact where the evidence is not in dispute. 106 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

11 On September 16, 2008, Constables Robinson and Albers were on duty in a marked police unit driven by Constable Robinson southbound on Macleod Trail South, Calgary. At 86th Avenue, a motorcyclist came to a stop alongside their vehicle at a red light and alerted them to the movements of red truck directly behind him. The Crown introduced hearsay evidence concerning the motorcyclist’s comments to the Constables which I decline to incorporate into these findings. 12 The motorcyclist left and the Constables decided to pull away slowly to allow the red truck to get ahead of them. The Constables pulled away reaching a speed of about 40 kilometres per hour (kph) with the truck lagging behind at a speed of about 20 kph an hour as if it was trying to avoid overtaking their vehicle. The red truck was driven by the accused. 13 The Constable’s vehicle slowed further and the accused’s vehicle accelerated and eventually passed them at a speed of about 60 kph. 14 At about 90th Avenue S., the accused again increased his speed to the posted speed of 70 kph about 200 metres prior to the permitted increase. 15 In the area of 92nd and 94th Avenue S., the accused’s vehicle weaved within its lane and made contact with the solid white line on the accused’s left hand side about two to three feet from the center median. 16 The Constable’s vehicle pulled alongside the accused’s vehicle before An- derson Road. The accused’s vehicle again accelerated to 80 kph about 400 metres before the permitted increase in speed limit. At that point, the accused’s vehicle went over the solid white line along the southbound off ramp from Midlake Boulevard, moving about a foot to either side to make contact. The accused’s vehicle corrected itself but was followed by more weaving. The accused’s vehicle left its lane a couple of times and at almost hit the curb at two points. On two occasions in the whole sequence, the accused’s vehicle increased its speed in advance of a posted permitted increase in speed. 17 The Constables followed the accused’s vehicle for approximately 10 kilometres and for a period of about 10 minutes. Excessive speed was not a factor. On one occasion, the truck lagged behind police and on another occasion, the accused’s vehicle accelerated and eventually passed them within the speed limit. 18 I accept Constable Robinson’s assessment when he puts all of this in context in cross-examination by saying that the weaving over the 10 kilometres, was “minor “ and that the accused’s driving was “not bad.” I also accept that had he thought anything more of it, he would have pulled the vehicle over earlier than he did. 19 At 1:46 a.m., the Constables stopped the accused’s vehicle near the Shawn- essy strip mall and approached. 20 At 1:47 a.m., Constable Robinson requested the accused, the sole occupant, to step outside the vehicle from his driver’s position to provide a roadside breath R. v. Mario W.J. Cummings Prov. J. 107

sample. Constable Robinson detected a slight odour of alcohol coming from the accused’s breath when he asked the accused to leave his vehicle leading him to believe there was alcohol in his body. Constable Albers testified the accused didn’t seem confused over the course of time he dealt with him but he also smelled alcohol on the accused’s breath. The accused admitted consuming three beers over a four hour time frame. 21 At 1:52 a.m. Constable Robinson read the Roadside Screening Device demand. The accused provided a sample of his breath into an Intoxilyzer 400D resulting in a fail reading meaning 100 mg percent or higher. 22 The fail reading led him to believe the accused’s ability to operate a motor vehicle was impaired by alcohol. 23 At 1:52 a.m., the accused was placed under arrest. 24 At 1:53 a.m., Constable Robinson read the Charter and Caution to the accused. The accused answered “yeah” in response to whether he understood he had the chance to contact a lawyer and if charged, to apply to Legal Aid. 25 The accused answered “no” in response to being asked about whether he wished to call a lawyer. 26 Between 1:53a.m. and 2:08 a.m., the Constables made arrangements for a qualified technician to meet them at the District 8 Office and for another police unit to come to their location to stay with the accused’s vehicle until the tow truck arrived. 27 At 2:07 a.m. the Constables left the arrest location with the accused. 28 At 2:08 a.m., they all arrived at the District 8 Office which was located a couple of hundred metres from where the Constables pulled the accused’s vehicle over. 29 At 2:10 a.m. after arriving at the district office, the accused was placed in a holding room and remained there until the breath technician arrived. There is no evidence when the breath technician appeared and the only direct evidence is that he did at some point arrive to set up the machine. 30 Constable Robinson accompanied the accused to the qualified breath technician, Constable Bengoechea, in the breath tech room. Constable Bengoechea had to travel from the District 6 Office. 31 At 2:32 a.m., the accused provided the first sample of his breath, a period of 22 minutes after being placed in the holding room. 32 At 2:54 a.m. the second test was administered, approximately 22 minutes after the first sample was taken. 33 The breath technician provided Constable Robinson with documents. Con- stable Robinson, in turn provided the accused with a number of documents. 108 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

Issues On Count 1 34 Firstly, has Notice of Intention and a copy of the Certificate of Analysis been given to the accused in accordance with s.258(7) of the Criminal Code to allow it to be received in evidence? The most contentious issue relates to which standard of proof applies to allow for the determination. 35 Secondly, if the certificate is admitted into evidence, were samples of the accused’s breath taken “as soon as practicable” to allow the Crown to rely on the statutory presumptions set forth in s.258(1)(c) and (d) of the Criminal Code?

On Count 2 36 The sole issue is whether the Crown has proved the elements of the offence beyond a reasonable doubt.

Positions of the Parties Count 1 Notice and Delivery 37 Crown argued the pre-requisites of service of the Notice of Intention and delivery of a copy of the Certificate of Analysis provided for under s.258(7) of the Criminal Code have been proved on the balance of probabilities and the Certificate should be admitted in evidence. 38 Defence argued the Crown has failed to prove those pre-requisites on the criminal standard of proof beyond a reasonable doubt and the Certificate should be excluded from evidence.

As soon as practicable 39 Crown argued the first breath sample was taken as soon as practicable in accordance with s.258(1)(c)(ii) of the Criminal Code. They argued if proper inferences are drawn, there is no reason to question the reasonableness of a 22 minute delay. 40 Defence argued the absence of any explanation for the delay entirely precludes that finding.

Count 2 41 Crown argued the tests in law have been met to ground a conviction. De- fence responded by saying there is insufficient evidence to prove the offence beyond a reasonable doubt. R. v. Mario W.J. Cummings Prov. J. 109

Law Delivery of the certificate 42 Section 258(7) of the Criminal Code provides the following: 258(7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (h) or (i) unless the party intending to produce it has, before the trial, given to the other part reasonable notice of his intention and a copy of the certificate. R.S.C. 1985, c. 27 (1st Supp.), s. 36; c. 32 (4th Supp.), s. 61; 1994, c. 44, s. 14; 1997, c. 18, s. 10; 2008, c. 6, s. 24. 43 The section requires proof of the pre-conditions prior to the certificate being used in evidence to allow the Crown to later rely on the presumption provided for in s.258 of the Criminal Code.

Standard of Proof 44 What standard of proof should apply to prove compliance with s.258(7) of the Criminal Code? 45 I refer firstly to R. v. Egger, [1993] 2 S.C.R. 451 (S.C.C.), a decision of the Supreme Court of Canada where the issue arose as to whether a Certificate of Qualified Technician in a blood sample case could be served as late as the day of trial. At para. 32, Mr. Justice Sopinka discussed the admissibility of that Cer- tificate and drew the following conclusions: 32 I have referred to the fact that the criminal standard of proof applies. When notice is given by means of service of the CQT, there will usually be no difficulty in meeting this standard. It may assume greater significance in a case such as this in which notice is alleged to have been given orally or by means other than service of the CQT. While proof on a balance of probabilities in an acceptable standard in deciding a preliminary question of fact with respect to the admissibility of evidence (see R. v. B. (K.G.), [1993] 1 S.C.R. 740), the general rule with respect to determination of vital issues in the criminal process requires proof beyond a reasonable doubt. See R. v. Gar- diner, [1982] 2 S.C.R. 368, at p. 415. The issue here is very different from a question of admissibility of evidence. The effect of satisfying the burden of proving preliminary facts to the admissibility of evidence is only that the evidence is admitted: it determines neither the weight of the evidence nor the guilt of the accused. This occurs in the next step in the process during which the Crown must satisfy its legal burden. When admission of the evidence may itself have a conclusive effect with respect to guilt, the criminal standard is applied. This accounts for the application of this standard with respect to the admission of confessions (see Ward v. The Queen, [1979] 2 S.C.R. 30, at p. 40 [page 475] per Spence J., for the Court, and Roth- man v. the Queen, [1981] 1 S.C.R. 640, at pp. 670, 674-75, per Mar- tland J., for the majority, and at p. 696, per Lamer J. (as he then 110 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

was), concurring). Establishing the facts which trigger a presumption with respect to a vital issue relating to innocent or guilt is a step further advanced than the admissibility of evidence and is only reached after crossing the hurdle of admissibility. The effect of the presumption in this case is to provide conclusive proof of the accused’s blood alcohol concentration at the critical time, in the absence of evidence to the contrary. This conclusion respecting the application of the criminal standard is supported by the view which has been taken relating to the presumption which arises by virtue of s. 258(1)(a). ... [Emphasis Added Mine] 46 The following Alberta Court of Queens Bench authorities address the issue more specific to delivery of Certificates resulting from breath samples. 47 In R. v. Northcott (1995), 177 A.R. 94 (Alta. Q.B.), compliance with s.258(7) of the Criminal Code was brought in issue by virtue of the certificate being slid to the accused over a table with other documents with no conclusive proof he had picked them. Mr. Justice Moshansky referred to the application of the reasonable doubt standard by the trial Judge and compared the service of process in civil matters requiring personal service absent a court order. At para. 18, the Court concludes: 18 . . . It is simply not arguable that the standard for proof of service in criminal matters, which could deprive an accused of his liberty, should be less than that in civil suits. 48 The court added the following concluding comment: 20 Surely it is not placing an undue burden upon the police to require that they physically hand the Certificate, or any other document being served, to an accused person. Here there was not even a statement made to the accused to indicate that the copy of Certificate, which was slid across the table, was his to take. 49 In R. v. Duplessis, [2006] A.J. No. 660 (Alta. Q.B.), a decision of Mr. Justice Murray, the uncertain testimony of an officer as to whether he handed a copy of a Certificate of Analysis to the accused or slid it on a table along with other documents came into issue. The court adopted R. v. Northcott, supra, by saying: 13 Given the circumstances in the case before me, and keeping in mind that, quite often, Certificates given to accused persons pursuant to s. 258(7) will follow directly on the heels of a charge under s. 253, I cannot, with respect, classify procedural breaches of the kind before me as mere technicalities. The law is clear that the Court must be satisfied beyond a reasonable doubt that the Certificate was given to the accused person (see R. v. Northcott, supra, and R. v. Barratt (1977), 35 C.C.C. (2d) 174 (Ont. H.C.)). R. v. Mario W.J. Cummings Prov. J. 111

50 The Court went on to say: 17 As I interpret Northcott, supra, and indeed the law as I understand it to be, it is necessary for the officer to physically hand over the Cer- tificate and Notice to the accused and to indicate that the document is for him to take with him when he leaves. 51 In R. v. Nitschke, 2007 CarswellAlta 1874 (Alta. Q.B.), a decision of the Alberta Court of Queen’s Bench, affirming [2006] A.J. No. 609 (Alta. Prov. Ct.) regarding non-compliance with s.258(7) of the Criminal Code, McIntrye J. referred to the trial Judge’s reliance on R. v. Northcott, supra. The Court’s curios- ity concerning the applicable burden of proof was engaged and approached the issue on this basis: 12 There was some discussion during the course of the appeal, which discussion was prompted by me, as to the standard of proof on the Crown to prove that reasonable notice has been given of an intention to produce the certificate and to give a copy of it pursuant to section 258(7) of The Criminal Code. I wondered whether the burden was on a balance of probabilities or beyond a reasonable doubt. 13 I asked for supplemental argument. The Crown pointed out in the supplemental argument that the Supreme Court of Canada case of R. v. Egger, [1993] 2 S.C.R. 451 held that proof of service of this kind of certificate, (it was not the same certificate in that case) is on a criminal standard. At paragraph 32 Justice Sopinka stated; While proof of the balance of probabilities is an acceptable standard in deciding a preliminary question of fact with respect of the admissibility of evidence. See R. v. B(K.G.), [1993] 1 S.C.R. 740. The general rule with respect to determination of vital issues in the criminal process requires proof beyond a reasonable doubt. See R. v. Gardiner, [1982] 2 S.C.R. 368 page 414. The issue here is very different from a question of admissibility of evidence. 52 McIntyre J. in Nitschke, supra, was careful to consider R. v. Egger, supra, and the two opposing considerations referred to where proof of preliminary questions attract the lesser standard and vital issues the higher standard. After doing so, the Court provided this unqualified conclusion at para. 14: 14 Clearly proof of service of the certificate of analysis therefore must be proven on the standard of beyond a reasonable doubt. 53 The Crown referred me to the following decisions: 54 In R. v. Oleksyn, [2004] A.J. No. 1468 (Alta. C.A.), the Court declined to grant leave to appeal where an agreement between counsel permitted application of the standard of proof beyond a reasonable doubt when applying section 258 of the Criminal Code. The Crown points out the Court did so in saying there then appeared to be no one decided case in Canada making that the standard. 112 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

55 In R. v. Hey (2009), 81 M.V.R. (5th) 130 (Alta. C.A.), the nature of the certificate served, be it photocopy or carbon copy was in issue and while the civil standard of proof was referred to, no conclusive finding was made concerning it. 56 R. v. Cosgrove (1993), 46 M.V.R. (2d) 99 (Alta. C.A.) and R. v. Walsh (1980), 53 C.C.C. (2d) 568 (Ont. C.A.) both cases where carbon copies were found to be original copies for service purposes. 57 In R. v. Oslowski (2006), 72 W.C.B. (2d) 432 (Ont. C.J.) [2006 CarswellOnt 8079 (Ont. C.J.)] the court held that reasonable notice under s.258(7) need only be proven on the balance of probabilities.

Recent jurisprudence: R. v. Buffalo 58 In the course of hearing argument in this case, my learned colleague Rosbor- ough PCJ., delivered a decision in R. v. Buffalo (2009), 252 C.C.C. (3d) 390 (Alta. Prov. Ct.) (the “Trial decision”) dealing in part with the applicable standard of proof under s.258(7) of the Criminal Code. 59 In that case, Defence argued unsuccessfully against the admission of a Cer- tificate of Analysis in an “over 80” prosecution on the basis that neither a copy of the Certificate nor reasonable notice of its intended use had been given to the accused in accordance with s.258(7) of the Criminal Code. Rosborough PCJ. undertook an extensive review of the law and concluded the pre-conditions contained in the section do not invite determination of a “vital issue” and need only be proved on the balance of probabilities, not the criminal standard. 60 Rosborough PCJ. distinguished R. v. Egger, supra, by saying the case involved a blood sample where the accused’s right to a fair trial had been compro- mised by failing to notify him of the existence of a second blood sample and concluded service of the necessary Certificate required the application of the higher standard of proof. 61 Rosborough PCJ. also distinguished R. v. Nitschke, supra, by saying the Court effectively conceded the application of the criminal standard without hearing argument. I’ll digress by saying I do not read Nitschke in that same light. While the Court’s reasons in R. v. Nitschke, supra are not extensive, the learned Justice was express in saying he had invited submissions from counsel prior to rendering his decision. On my reading, the learned Justice quite clearly arrived upon his own considered finding. 62 The Crown in this case distinguishes the decisions in R. v. Egger, supra, on the same basis, that is, the decision concerning the standard of proof resulted from a concession made by counsel. The Crown additionally says Nitschke following Egger must be distinguished knowing Egger involved a blood sample and attracted the higher standard because of the time limit that follows for an accused to be notified of a second sample of blood. R. v. Mario W.J. Cummings Prov. J. 113

63 On my reading of Supreme Court of Canada’s decision in Egger and both the trial and the Alberta Court of Queen’s Bench decision in Nitschke, I find no comparison drawn nor finding made to say that delivery of Blood Sample Certif- icates deserved greater scrutiny than Certificates resulting from breath samples. 64 At para. 45 in the Trial decision, Rosborough PCJ. cited R. v. Mokelky, [2008] A.J. No. 1317 (Alta. Prov. Ct.), a decision of Fraser PCJ. of this Court which followed R. v. Mackinnon (2003), 42 M.V.R. (4th) 205 (Ont. C.A.) to conclude that proof of delivery of a Certificate under s. 258(7) need only be proved on the balance of probabilities. 65 The Trial decision was subsequently appealed and ultimately upheld by the Alberta Court of Queens Bench in a decision delivered by Mr. Justice Binder and is now reported at [R. v. Buffalo] [2010] A.J. No. 553 (Alta. Q.B.) (the “Queen’s Bench decision”). I again invited submissions from Counsel upon its release. 66 At para. 21 in the Queen’s Bench decision, the learned Justice determined the trial Judge was correct in finding that no particular method of discharging s.258(7) requirements must be followed nor any particular words used. Evidence of standard practice was sufficient to establish proper service. 67 More pertinent to this case, however, the learned Justice went on to conclude the trial Judge was also correct in finding notice under s.258(7) of the Criminal Code need only be proved on the balance of probabilities. 68 At paragraph 30-33 in the Queen’s Bench decision, the Court employed the following reasoning: 30 The Appellant argues that the trial judge was bound by the Duples- sis decision in which Murray J. stated that the law is clear that the court must be satisfied beyond a reasonable doubt that the certificate was given to the accused person. I agree that technically (on the basis of stare decisis) the trial judge was so bound, however I find that the comments of Watson J. (as he then was) in Nelson cast doubt on the binding authority of Duplessis. 31 In my view, s. 258(7) does not give rise to a presumption. Both ss. 258(g) and (c) contain pre-conditions which must be satisfied in order for the Crown to be able to rely on the presumptions contained therein which in my view are vital issues proving guilt, whereas s. 258(7) deals with service of notice which in my view does not prove guilt. In this regard, I agree with the conclusion of the Ontario Court of Appeal in MacKinnon: 2 ... we wish to make it clear the in order to meet the requirements of s. 58(7), a provision that addresses the admissibility of the certificate into evidence, it is only necessary that the trial judge be satisfied, on a balance of probabilities, that the certificate given to the accused is a copy. 114 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

With respect, the learned Justice on appeal erred in applying the criminal standard of proof to that question. and the opinion of Watson J. (as he then was) in Nelson: 14 I would mention in passing that it seems to me, as a matter of law, the Crown would only have to establish on a balance of probabilities the occurrence of giving of fair notice and reasonable notice within the meaning of the Criminal Code on this particular issue ..... 32 Accordingly, in my view, the trial judge was correct in stating that notice pursuant to s. 258(7) need only be proved on a balance of probabilities. 33 In any event, as previously stated the trial judge was satisfied beyond a reasonable doubt the service had been effected, and I find that he did not err in this respect. 69 In the Queen’s Bench decision, Mr. Justice Binder referred to R. v. Egger, supra, R. v. Duplessis, supra, R. v. Northcott, supra and R. v. Nitschke, supra in addressing the applicable burden of proof but questioned the binding effect of R. v. Duplessis, supra by narrowing the enquiry to two isolated authorities, R. v. Nelson [2006 CarswellAlta 519 (Alta. Q.B.)], supra and Mackinnon, supra. I note that while persuasive, neither of those two decisions were binding upon the learned Justice. 70 In my view, the facts in Nelson, supra and Mackinnon, supra and the approaches taken by each of those Courts are distinguishable. 71 In Nelson, supra, the Court was asked to decide a s.8 Charter of Rights and Freedoms breach and in the course of that decision, makes an obiter dicta statement concerning the applicable standard of proof on the service issue. It did so without reference to the jurisprudence and without any specific argument. The Court said the following at para. 14: 14 I would mention in passing that it seems to me, as a matter of law, the Crown would only have to establish on a balance of probabilities the occurrence of giving of fair notice and reasonable notice within the meaning of the Criminal Code on this particular issue. ... [Emphasis added Mine] 72 The sole issue before the Court in Mackinnon, supra related to the nature of the certificate, be it a copy or original, not the more fundamental issue surrounding its delivery, as is the case here. The Court appeared to have simply endorsed the standard as being on the balance of probabilities without reference to Su- preme Court of Canada authority in R. v. Egger, supra and without providing specific reasons. R. v. Mario W.J. Cummings Prov. J. 115

73 Mackinnon, supra may have apparent persuasive authority but in my respectful view should not be relied upon by this Court in the absence of due consideration of the overarching principle enunciated in Egger, supra, and the companion cases that followed. 74 Even though the learned Justice in the Queen’s Bench decision chose not to follow Egger, Duplessis, Northcott and Nitschke, supra, in my respectful view, that Court has nonetheless left the binding effect of all of those authorities open to interpretation. 75 As a result and with great respect, I do not read the Queen’s Bench decision as binding this Court to require I decide the issue of proof of delivery of the certificate and Notice of Intention under s.258(7) of the Criminal Code on the balance of probabilities. 76 Section 258(1)(c) of the Criminal Code permits the Certificate of Analysis to constitute “conclusive proof” of an accused’s alcohol level at the time of driving. Compliance with s.258(7) and receipt of the Certificate of Analysis in evidence determines whether the presumption contained in s.258(1)(c) will apply. Without compliance with s.258(7), the presumption cannot operate. 77 Knowing this, I am unable to conclude proof of compliance with s.258(7) does not raise a sufficiently vital issue for it not to be proven on the criminal standard. True, compliance with the section is not determinative of guilt. But without the Crown satisfying the section to bring the Certificate in evidence, the Crown’s case structured around the receipt of the Certificate without the benefit of expert evidence is effectively stalemated. On this one basis alone, it seems to me to be as vital a step in the Crown proving a charge under s.253(1)(b) of the Criminal Code as any other. 78 In my respectful view, this accused should have the benefit of knowing the pre-requisites of section 258(7) of the Criminal Code are proved on the criminal standard. 79 Accordingly, I interpret Egger, Duplessis, Northcott and Nitschke as binding authority that directs that I am to decide the issue of delivery of the Certificate of Analysis in this case on the basis of proof beyond a reasonable doubt. 80 If I err in moving to the higher standard, no doubt Courts above will be quick to correct me. 116 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

The standards of proof 81 Some mention should be made of how these separate standards compare. Proof beyond a reasonable doubt is described by Cory J. in R. v. Lifchus, [1997] 3 S.C.R. 320 (S.C.C.) at para.39: 39 ..... What does the expression “beyond a reasonable doubt” mean? The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is so engrained [sic] in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt. 82 Mr. Justice Iacobucci in R. v. Starr, [2000] 2 S.C.R. 144 (S.C.C.) defines the distance between the two standards by saying at para. 242: 242 In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty that to proof on a balance of probabilities. ... 83 In contrast, a description of the balance of probabilities is enunciated in Mc- William’s Canadian Criminal Evidence, 4th ed., vol. 2 (Aurora: Canada Law Book 2010) at para. 25:30:10: In this section, we identify the role of the balance of probabilities standard of proof in criminal trials. The standard is markedly different for the reasonable doubt standard. As the Supreme Court noted in 1921 in R. v. Clark, “[i]t is, generally speaking, sufficient of he has produced such a preponderance of evidence as to shew that the conclusion he seeks to establish is substantially the most probable of the possible views of the facts”. Application of this standard means a disputed fact can be proved despite the existence of a rea- R. v. Mario W.J. Cummings Prov. J. 117

sonable doubt as to the existence of that fact. We mad three points by way of introduction to this section. First, it is important to identify why the use of a civil standard in a criminal case is unuasual. Any time an accused faces conviction depite the existence of reasonable doubt it violates the presumption of innocence and the concomitant requirement in Canadian Law of proof beyond a reasonble doubt. ... 84 In R. v. Kicovic (2004), 377 A.R. 176 (Alta. Prov. Ct.) at para. 13, Semenuk PCJ of this Court adopted a succinct explanation of the lesser standard as enunciated in Miller v. Minister of Pensions, [1947] 2 All E.R. 372 (Eng. K.B.), a decision of Denning J.(as he then was), at para. 13, as follows: 13 ..... “In cases falling under art. 4(2) and art. 4(4) (which are generally ones where the man was fit on his discharge, but incapacitated later by a disease) there is no compelling presumption in his favour, and that case must be decided according to the preponderance of probability. If at the end of the case the evidence turns the scale defi- nitely one way or the other, the tribunal must decide accordingly, but if the evidence is so evenly balanced that the tribunal is unable to come to a determinate conclusion one way or the other, then the man must be given the benefit of the doubt. This means that the case must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge a burden in a civil case. That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not,’ the burden is discharged but, if the probabilities are equal, it is not.” [Emphasis added Mine]

The Related Evidence 85 The facts surrounding the purported delivery of the Certificate of Analysis are in dispute largely from the imprecision and inconsistencies contained throughout the entirety of Constable Robinson’s evidence. 86 Isolated examples arise with him not knowing when the qualified technician arrived at the scene (Trial Transcript, July 28, 2009, at p. 21, l. 15), the breath technician’s name without his notes (Ibid, at p. 21, ll. 29-31 and p. 24, ll. 27-28), if there had been a conversation between the breath technician and the accused (Ibid, at p. 22, ll. 24-36) what documents he served the accused without his notes. (Ibid, at p. 24, ll. 8-34); and 118 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

87 The Court’s concern compounds as the Constable Robinson describes his specific efforts with service. I refer firstly to portions of his examination-in-chief with emphasis added where he testifies as follows: Q All right and did you give any documents to the accused? A I gave him an appearance notice, after we left him, and — along with the, I believe the certificate of analysis. Q Okay so you gave him the certificate of analysis, is that right? A I believe so. Q Sorry, was there anything that would refresh your memory because you said you believe so? A My notes would — I am pretty sure I have it in my notes of what I exactly provided him when he left — when he left the office. Q Okay can you tell me whether or not you provided him the certificate of analysis? A I will. Actually sorry just to — I can tell you the name of the officer, it’s Bengoechea. Q Okay so Constable ‘B’ is Constable Bengoechea. A That’s correct. Q And I understand that is spelled B-E-N-O-E-C-H-E-A? A B-E-N-G-O-E-C-H-E-A, yeah, that’s correct. Q Okay. And so Constable Bengoechea has provided you with a certificate of analysis, and you were going to tell me whether or not you gave that to — A Yes. I can explain exactly — I gave him a certificate of analysis, yes. I gave him a promise to appear, notice of intention, AALS, and a copy of a tow bill form, which we towed his vehicle. Q Okay can you comment on the certificate of analysis that you gave the accused, relative to the one that the breath technician gave you? A It would have been a copy — a duplicate that I made myself, which I have the original I believe in here. Q Okay and when you say you made the duplicate yourself, how did you make it? A in the — with a photocopy machine at the district office. I might be mistaken, sorry. Q Okay. AI— Q Do you — A — am trying — trying to remember if it — if they are tear off sheets which I — I don’t recall — Q Do you have the certificate of analysis — R. v. Mario W.J. Cummings Prov. J. 119

A—If I open it up I can tell you.1 [Emphasis added Mine] 88 At this point, Constable Robinson’s examination is interrupted while an envelope containing the certificate is opened and he took the opportunity to review the contents. He continued by saying: A Sorry. It would have been a carbon copy. Q It’s a carbon copy, okay. A Carbon copy.2 [Emphasis added Mine] 89 The confidence he seemed to express just seconds before dissipates. His testimony becomes even more hesitant. Q Can you comment on how the carbon copy that the accused got, compared to the original? A It would have been an exact duplicate of this one, which was behind it, with carbon paper and would have — Q Okay and how do you know that? A Because I believe I removed the carbon copy from this copy and I compared it to — Q Okay you compared it. A Well — yeah. Q Okay and you — you made a conclusion about how it compared to the original, what was the conclusion? A That they were one in the same. Q Okay. A Other than the fact that it was a carbon copy. Q All right, now I understand that there is something written on the bottom of the certificate of analysis, could you please read that for the Court? A The bottom of — under the line? Q Yes. A Is that what you’re requesting? (As read), Notice of intention to produce certification, to Michael Joseph Mario, of Calgary, take notice that the prosecution intends to produce, in evidence, a certificate, a copy of which above appears — sorry, above — appears above. Dated the 16th day of September, 2008.

1See Trial Transcript, July 28, 2009, at p. 24, l. 8 to p. 25, l. 12. 2See Ibid, at p. 25, ll.14-17. 120 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

Q All right. A Which I signed. Q And before you gave that certificate of analysis to the accused, did you do anything else with it, did you — did you have any conversation with the accused? A At that — yeah I would have —I would have gone over the entire paperwork, all of the paperwork which I provided to him, reading over it, explaining it to him. Q Now you’ve indicated that you gave him the certificate of analysis, do you know what he — what he did with it while he was at the detachment? A When he left the office, he had all the paperwork which I had provided to him in his right hand. Q Okay and what time did he leave? AI believe the exact time in my notes is stated. 03463 [Emphasis added Mine] 90 In cross-examination, he then testified to not having any related independent recollection of him comparing the copies but knows he removed the copy from the original and that the only way the copy could be made was through the carbon copy. 91 He testified as follows: Q You don’t actually have an independent recollection, ho how you compared those copies, do you? A An independent recollection? No. Q Yes. A That’s correct, no. Q So you can’t say what you did in the case to compare one copy of the other, can you? A I can say I removed the copy from the original copy which would have been — the only way for it to have been made, would be through the carbon copy. Q Okay but you can’t say whether or not you compared on to the other, can you? A I don’t recall, no. Q You don’t recall, okay fair enough. And fair to say that you can’t recall — you don’t have an independent recollection, of actually providing that copy to the accused, do you? A I do have.

3See Ibid, at p. 25, l. 19 to p. 26, l. 29. R. v. Mario W.J. Cummings Prov. J. 121

Q You have an independent recollection? A I recall giving him several pieces of paper at the time, and I have it in my notes that I had provided him with the certificate of analysis. Q But you wouldn’t have said anything to — did you say anything to him once you gave him those copies? A I would have given him a copy while seated in the — in holding room number one, when I gave him everything and we read over everything, at which point I gave him a copy — copies of the paperwork. Q Okay. But you didn’t say anything to him about, take these to your lawyer or anything, did you? A No.4 [Emphasis added Mine] 92 The difficulty with Constable Robinson’s testimony concerning service starts with his considerable uncertainty over whether he was dealing with a photocopy or carbon copy. The contents of the envelope as opened while he was on the witness stand containing the original copy of the Certificate was the only catalyst that jogged his memory. Neither his notes nor his independent recall could assist. The contents of the envelope came as complete surprise to him. 93 The fact the Constable Robinson could not recall comparing the original Certificate with the copy placed even more question on his testimony. His notes simply recite the fact that he provided the accused with the Certificate but say nothing about the nature of the document, whether it was a carbon copy or a photocopy, or anything about the manner of its delivery. This bare entry in the midst of a body of confused testimony gives me little comfort in knowing what might have been provided to the accused and on what terms. A quick comparison of the documents he was dealing with and a brief entry in his notes would have gone a long way to resolve any doubt on this issue. 94 Constable Robinson couches his evidence in terms of what he thought happened with this Certificate or what ought to have happened. This is not sympto- matic of his manner of expression but rather his patent uncertainty in relaying information. I note as well where he had no specific recall, he made no effort to tie his actions to his routine practices. 95 In all of these circumstances, I seriously question his later testimony given in cross examination when he professed to have an independent recollection of giving the accused the Certificate. His memory concerning duplication of the document failed him entirely earlier in his testimony. He testified to having given the accused several pieces of paper without referencing the Certificate as being part of that package. His note saying he provided the Certificate to the accused is

4See Trial Transcript of July 28, 2009 at p. 34, l. 12. 122 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

generic and non-descriptive. It does nothing to particularize this document among all of the other documents he said he simultaneously passed to the accused. In these circumstances, any suggestion he had independent recall of giving the certificate is simply a guess on his part. 96 I do not doubt the officer’s honesty but his confusion and hesitancy on this issue leaves me concerned about all of his related evidence. I am not at all convinced on proof beyond a reasonable doubt that Constable Robinson gave the accused a true copy of the Certificate of Analysis taken in the course of investigation to satisfy the section. 97 Given the level of Constable Robinson’s uncertainty, I am also not able to say even on the balance of probabilities that delivery of the certificate occurred. The Constable may have delivered the Certificate to the accused, he may not have. The possibility exists he was mistaken such that the Certificate was not included in the several pieces of paper he says he handed to the accused. On the facts before me, one outcome is not more probable than the other. 98 Northcott, supra, and Duplessis, supra, also held that the accused should be left with a few words indicating the documents are his to take. Given my finding concerning service of the certificate, I needn’t go further with addressing this aspect of those decisions. 99 On either standard of proof, the Crown has failed to prove compliance with an essential pre-condition set forth in s.258(7) of the Criminal Code. On this basis alone, the Certificate of Analysis ought not to be received in evidence. 100 Accordingly, the Crown is unable to rely upon the Certificate of Analysis to support the presumptions provided for under the provisions of s.258(1)(c) the Criminal Code to establish the accused’s blood alcohol content.

As soon as practicable 101 If I am wrong in reaching this conclusion and the Certificate ought to be entered in evidence, the question of whether samples of the accused’s breath were taken “as soon as practicable” in accordance with s.258 of the Criminal Code arises that subsection reads as follows: 258.(1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2), ..... (c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3)., if ..... (ii) each sample was taken as soon as practicable after the time when the offence R. v. Mario W.J. Cummings Prov. J. 123

was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, ..... (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician evidence of the results of the analysis so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things – that the approved instrument was malfunctioning or was operated improp- erly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the 124 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

concentrate io alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed; . . ., [Emphasis Added Mine] 102 I provide this analysis knowing that recent judicial authority suggests this enquiry ought properly be brought under a section 8 Charter application, the outcome of which may then be subject to a full section 24(2) analysis. No Char- ter notice was brought nor was any related argument heard on that basis in this case. I provide the following analysis knowing full well that succeeding Courts dealing with this issue may see the discipline of the Charter superimposed. 103 The facts relevant to this specific issue are these. 104 The accused was stopped by the Constables at 1:46 a.m., provided a Road- side Screening Device demand at 1:47a.m., provided a Breath Demand at 1:52 a.m. and Chartered and cautioned at 1:53 a.m. The Constables and he arrived at the District 8 office at 2:08 a.m., about one minute after their departure from the scene at about 2:07 a.m. 105 Between 1:53 a.m. and 2:08 a.m., the Constables made arrangements for a qualified breath technician to travel from District 6 to meet them at District 8 and for another police unit to stay with the accused’s vehicle until a tow truck arrived. 106 There is no direct evidence when the breath technician arrived or how long he might have been available before the first test was administered. Constable Robinson thought the technician needed time to set up the equipment but didn’t know specifically what time he arrived at the District office. 107 The accused was placed the accused in a holding room at 2:10. The first breath sample was taken at 2:32 a.m., a delay of 22 minutes from the time of the accused’s arrival at District 8, a distance of a couple of hundred metres from where he was stopped. That isolated period is under consideration. The time between the second test administered at 2:54 a.m., 22 minutes after the first sample is not in issue.

Applicable Law 108 Section 258 sets out a regime which allows the Crown to rely on an evidentiary presumption that breath tests taken after driving are the same as when the driving occurred if the statutory pre-conditions in s.258(1)(c) are met. The condition under consideration here is found in s.258(1)(c)(ii) which requires that R. v. Mario W.J. Cummings Prov. J. 125

each breath sample be taken “as soon as practicable” after the time of the alleged offence. 109 The Crown directs me to R. v. Van der Veen (1988), 44 C.C.C. (3d) 38 (Alta. C.A.) a decision of the Alberta Court of Appeal as being the leading case on this issue. At paras. 32 to 34, the majority says “as soon as practicable” means within a reasonably prompt time in the circumstances, referring to R. v. Mudry (1979), 5 M.V.R. 23 (Alta. C.A.). An examination of the circumstances involves determining whether police acted reasonably, one of several factors both subjective and objective which can be considered. 32 It is not disputed that the phrase “as soon as practicable” means “within a reasonably prompt time under the circumstances”. (See Mudry v. R. (1979), 5 M.V.R. 23, (sub nom. R. v. Mudry; R. v.Coverly) 50 C.C.C. (2d) 518, 19 A.R. 379 (C.A.).) 33 In my view, an examination of the circumstances involves a determination as to whether the police officer involved acted reasonable. This is one, but only one, of the circumstances to be considered. Whether breath samples have or have not been taken as soon as practicable is to be decided having regard to both subjective and objective factors. 34 In determining whether the police officer involved has acted reasonable, statements made to the police officer are admissible, not to prove the truth of the contents of the statements, but to establish the state of mind of the officer. It was not therefore, improper for the trial judge in this case to consider evidence as to the information given to the police officer, even though it was hearsay evidence. 110 At para. 34, the majority in Van der Veen, supra also held that in determining whether police acted reasonably, statements made to police are admissible to establish the officer’s state of mind but not for the truth of their contents. The court found it was not improper for an officer to consider evidence given to him even though it might amount to hearsay. 111 The Crown also directs me to R. v. Bacon, [2006] A.J. No. 821 (Alta. Q.B.). The Court there assessed a 20 minute time period between the time the officer assessed the accused’s impairment and making a first demand. There was no explanation of what happened over that time period and no evidence of why the demand could not have been made sooner. The only evidence of what occurred related to questioning the accused about medications and whether or not he had consumed alcohol. The court still found the 20 minute period to be reasonable measured on the subjective and objective tests in Van der Veen, supra. The Court also noted the officer’s evidence in chief was not challenged on cross examination and stood as the only evidence of the delay. 112 The Court approved a comment by the British Columbia Court of Appeal in R. v. Pearce (1984), 27 M.V.R. 128 (B.C. C.A.) whereby the intention of the 126 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

statute was to require tests be taken with reasonable promptness but that an explanation for delay is not always necessary. 113 In R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C. C.A.) an unexplained delay between the accused’s arrival at the police station and samples being taken was still seen as being taken as soon as practicable. The court noted this does not require samples be taken as soon as possible. 114 The Crown relies upon the comments of Anderson J.A. at para. 19 in R. v. Cambrin, supra : 19 I would add that in my view, as a matter of law, it cannot be said that on the facts of this case the tests were not taken as soon as practicable. With respect, any other finding fails to come to grips with reality. The Code does not require the tests be taken as soon as possible. The police are not required to account for every moment spent by them during the interval between the arrest and the taking of the test. The law must be interpreted in the background of the facts of every day life, including the fact that police and Breathalyzer techni- cians are not required to engage in some sort of speed test in order to make certain that the Breathalyzer tests are taken as soon as reasonably practicable. 115 Defence brought to my attention two decisions of this Court. 116 In R. v. Goss, [2008] A.J. No. 116 (Alta. Prov. Ct.), Ogle PCJ. assessed a 20 minute delay from the time of a demand until the accused was walked to a check stop bus. The delay was explained by the officer making notes while seated in his police vehicle in circumstances where the equipment and technician were available a distance of metres and approximate 20 seconds away. The reasons were found not to be valid and the associated time delay resulted in the breath tests not having been taken “as soon as reasonably practicable”. The Court explained the operation of the section by saying the following (at paragraph 53): 53 The legislative scheme set out in Section 258 of the Criminal Code allows the Crown the benefit of a presumption that the results of breath tests taken after driving are the same as the blood alcohol level of the Accused at the time of driving. This evidentiary presumption - sometimes described as an evidentiary “shortcut” for the Crown - is available to the Crown only if all the pre-conditions in Section 258(1)(c) have been met. One of those essential pre-conditions contained in Section 258(1)(c)(ii), is that both breath samples be taken “as soon as practicable”. 117 In R. v. Jonasson (1997), 35 W.C.B. (2d) 60 (Alta. Prov. Ct.) [1997 CarswellAlta 647 (Alta. Prov. Ct.)], Daniel PCJ. assessed a 14 minute unexplained delay between a first and second breath sample after subtracting the 15 minute statutory period from a 29 minute delay and found the sample not to have been taken as soon as practicable. The Court noted the test can apply to both the first and the second sample. The absence of any explanation for the R. v. Mario W.J. Cummings Prov. J. 127

additional 14 minutes between the samples precluded any objective basis to find the time lapse was reasonable. 118 Defence also relies upon R. v. Hiebert, [2003] S.J. No. 398 (Sask. Prov. Ct.) a decision of the Saskatchewan Provincial Court. Kolenick PCJ. considered the effect of having no available reference point to determine whether or not breath samples had been taken as soon as practicable. The Court relied on authority to say the determination of whether samples are taken on this basis requires investigating officers keep reasonable track of times and key matters to put consideration of any apparent delay in proper context.

Standard of proof 119 Brief submissions were received concerning the standard of proof relative to the “as soon as practicable” issue. I will restrict my comments to say the Crown relies upon R. v. Chorney (2008), 452 A.R. 1 (Alta. Prov. Ct.) a decision of Allen PCJ. to define the standard as being on the balance of probabilities. De- fence argues the case concerned a Charter issue heard in the context of a voir dire, not an issue concerning statutory pre-conditions unrelated to the Charter, as was the case here. 120 I note, however, Daniel PCJ. in Jonasson, supra, applies the criminal standard when dealing with the “as soon as practicable” issue by saying the following at paragraph 15: 15 Section 285(1)(c)(ii) of the Criminal Code provides that breathalyser readings are evidence of alcohol concentration in the accused’s blood at the time of the alleged offence, if, among other things, “each sample was taken as soon as practicable after the time when the offence was alleged to have been committed.” The Crown must establish beyond a reasonable doubt, not just that the first sample was taken as soon as practicable, but that both samples were so taken. [Emphasis added Mine] 121 I note as well that Cambrin, supra at paragraph 20 also employs the criminal standard of proof on this issue. 122 My finding on the “as soon as practicable” issue does not turn on which standard of proof should prevail and I need not go further in addressing that issue.

Analysis 123 The Crown argues I should take the entire continuum of time into account to make sense of the delay. They draw this time line. 124 Twenty two minutes lapsed between the time the accused was stopped by police and when they arrived at the District 8 office. Other necessary steps taken by officers intervened over this period. The first sample was taken 46 minutes 128 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

after the initial stop and the second within 66 minutes. The accused was released exactly two hours after being stopped by police. 125 In context, the Crown says the 22 minute delay to the point of the first breath sample is not unreasonable and should not require any particular explanation. 126 The Crown argues even though there is no evidence to show how long the breath technician took to travel from one district office to another and prepare his equipment, the delay does not venture into the realm of it being unreasonable so as to require an explanation. They say realistically the technician needed some period of time to get to a point of being able to take the first breath sample and direct evidence is not needed to allow that inference to be drawn. 127 Respectfully, I disagree. 128 There is no explanation at all for the 22 minute delay on the available evidence. Constable Robinson testified they made a call from the scene for a technician to meet at the closest district office, the District 8 office located a couple of hundred meters from the scene. There is, however, no evidence whether he arrived before or after the accused, his actual time of arrival and how long it may have been before he was in a position to take samples from the accused after his arrival at the District office. 129 On these facts, it was entirely possible time was needed to await the technician’s arrival and allow him an opportunity to set up equipment. On the other hand, it may be that the technician was ready to take samples on the accused’s arrival at the District 8 office but for any number of reasons, he and the arresting constables remained inattentive to this investigation for all or some portion of 22 minutes. On the available evidence, neither possibility can be discounted. 130 The Crown draws my attention to the fact that neither officer was cross- examined on this particular issue, leaving it open for the Court to accept their unchallenged evidence and draw appropriate inferences. They rely on the approach taken by Court in Bacon, supra, where reasonable inferences could be drawn from proven facts. 131 Any attempt to draw inferences on this issue from what the Crown says are the realities of this situation without a proper foundation of proven facts would allow this issue to be decided on conjecture. In my view, that required foundation is absent and I decline to draw any related inferences as a result. 132 This case is unlike Van der Veen, supra, Goss, supra, Bacon, supra and Cambrin, supra. In all of those cases, the respective Courts were able to identify the parameters of time within which the question of reasonableness might be assessed. For their various reasons, the Courts either accepted or rejected the reasons for the delay or found no particular need to question it at the outset. 133 I refer once again to Van der Veen, supra. There, the Court found the unavailability of a breath technician for a period of 40 minutes after the accused’s arrival at the police station did not require an explanation, noting not every sta- R. v. Mario W.J. Cummings Prov. J. 129

tion can have a technician available at all times. No explanation was available for the technician’s delay, although the court accepted hearsay evidence that the street was busy that evening to allow an assessment of the reasonableness of officer’s subjective viewpoint. 134 In this case, however, there is every reason to question what transpired over the 22 minute period. The time and circumstances surrounding the technician’s arrival and set up at the District 8 office is unknown. The earlier the technician and his equipment became available, the greater the concern there would be over the use of time leading up to the first sample. Without knowing his time of arrival and his circumstances leading up to it, an objective assessment of whether the 22 minute time lapse was reasonable is not possible. 135 The reasoning in Hiebert, supra, applies to these facts. Without proper reference points relating to times within the chain of events, there is no basis at all for making any sort of objective assessment of the reasonableness of this 22 minute delay. 136 No matter what standard of proof might be employed, there is no basis at all upon which I could make a judicial finding that the first breath sample was made “as soon as practicable” as required under s.258(1)(c)(ii) of the Criminal Code. 137 Even had the Certificate of Analysis been received in evidence, the Crown would still be precluded from relying upon the statutory presumptions contained in s.258 of the Criminal Code concerning the accused’s blood alcohol at the time of the alleged offence.

Impaired Driving - Count 2 Law 138 Section 253(1)(a) of the Criminal Code provides the following: 253. (1)Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; . . . 139 I refer to a case decided by Shriar PCJ. of this Court, R. v. Wallace, [2010] A.J. No. 136 (Alta. Prov. Ct.) for the purpose of reciting the Court’s very succinct summary of the necessary legal tests applicable to the offence of impaired driving. At paras. 28 to 30, the Court says: [28] The legal test for impairment under what is now Section 253(1)(a) of the Criminal Code was definitively stated in the case of R. v. Stel- lato (1993), 78 C.C.C. (3d) 380; aff’d 90 C.C.C. (3d) 160, where the Ontario Court of Appeal, alter approved by the Supreme Court of 130 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

Canada held that a trial judge must consider the whole of the evidence and decide whether it is safe to infer that the accused’s ability to operate a motor vehicle was impaired by alcohol. It does not matter if the degree of impairment is light or great. As long as the inference of impairment of the ability to drive can be made beyond any reasonable doubt, the charge is made out. [29] The Alberta Court of Appeal in R. v. Andrews (1996), AR. 182;104 C.C.C. (3d) 392, reminds of the need to be cognizant of the distinction between slight impairment of one’s ability to drive a motor vehicle, and slight impairment generally. The legal question does not concern impairment of a person’s functional abilities in general, but rather specifically the ability to drive. [30] Though the impairment of the driving ability can be slight in order to prove the charge, the conclusion that the driving ability is impaired should not be based on circumstances which differ only slightly from the norm.

Analysis 140 The driving evidence in this case is unremarkable. Speed was not a factor. Objectively, the accused’s driving did not invite intervention from police over a distance of a full 10 kilometres and for a 10 minute period from the point of their first observations. The Constables allowed the accused’s vehicle to track along over this distance accelerating and decelerating without a decision by either Constable to bring his driving to a halt until well after their first sighting. 141 Subjectively, the accused’s driving was characterized by police to be “not bad” after they had a full opportunity to make an evaluation. They quite clearly saw his driving to be within tolerable limits even after they observed minor weaving. 142 Granted, the officers also detected the odour of alcohol on the accused’s breath. This is simply indicative of consumption where the central issue sur- rounds the effect of that alcohol on Mr. Mario’s ability to operate his vehicle: R. v. Andrews [1996 CarswellAlta 7 (Alta. C.A.)], supra, para. 34. 143 Beyond this, minor weaving in the accused’s driving pattern is effectively all the Court has to assess possible impairment. There is no evidence related to the accused’s co-ordination, balance, gait, speech, eyes, attention span, mood, atti- tude or anything else for that matter to allow for an assessment of whether the accused’s ability to drive a motor vehicle was impaired by alcohol. 144 On the whole of the evidence, it would be unsafe to draw any inference the accused’s ability to drive a motor vehicle was even slightly impaired by alcohol. The limited foundation of proven facts would not support any such inference. R. v. Mario W.J. Cummings Prov. J. 131

Decision Count 1 145 On Count 1, the Crown has failed to prove beyond a reasonable doubt that the accused operated a motor vehicle having consumed alcohol in such a quantity that the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to s.253(1)(b) of the Criminal Code. 146 I find the accused not guilty on Count 1.

Count 2 147 On Count 2, the Crown has failed to prove beyond a reasonable doubt that the accused’s ability to drive a motor vehicle was impaired by alcohol contrary to section 253(1)(a) of the Criminal Code. 148 I find the accused not guilty on Count 2. 149 I thank Counsel for their helpful and thorough submissions. Accused acquitted. 132 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

[Indexed as: R. v. Mejias] HER MAJESTY THE QUEEN and GIANPIERO MEJIAS Ontario Superior Court of Justice R.G. Thomas J. Judgment: November 12, 2010 Docket: 3854/09, 2010 ONSC 6199 John Raftery for Crown S. Feldman, J. Milligan for Defendant Criminal law –––– Offences — Dangerous driving causing death — Miscellane- ous –––– Accused had two drinks before leaving to drive in slushy and slippery post- storm conditions — Accused swerved out of his lane to avoid another car and hit median — Passenger in accused’s van was killed — Accused was charged with dangerous driving and impaired driving causing death — Accused convicted of dangerous driving causing death and acquitted of impaired driving causing death — Witnesses testified that accused was driving too quickly for conditions — Tail lights accused claimed were not visible were seen by other drivers — Accused was not focused on his driving as he approached other car — Evidence showed accused was driving in dangerous manner with regard to all circumstances — Accused’s conduct was marked departure from that of reasonable person — Accused’s driving caused victim’s death. Criminal law –––– Offences — Impaired driving causing death — Miscellaneous –––– Accused had two drinks before leaving to drive in slushy and slippery post-storm conditions — Accused swerved out of his lane to avoid another car and hit median — Passen- ger in accused’s van was killed — Officer did not notice accused was walking unsteadily or behaving in any way to indicate impairment on way to police car — In car, officer did not notice slurred speech, watery or glassy eyes, or flushed face — Officer noticed accused’s breath smelled of alcohol — Accused admitted he had drunk two drinks and officer made breath demand — Accused registered .82 and .72 on breathalyzer tests — Technician noticed there were no gross indicators of impairment — Accused was charged with dangerous driving and impaired driving causing death — Accused convicted of dangerous driving causing death and acquitted of impaired driving causing death — Officers noticed few indicia of impairment including odour of alcohol on accused’s breath and slightly red eyes — Accused displayed no impairment of his gross motor skills — There could be many other explanations for accused’s eyes as he was likely in state of shock — Lower breath reading was taken as part of usual practice and was below legal limit — Other passenger testified accused only had two drinks before leaving — Evidence was insufficient to show impairment beyond reasonable doubt. Cases considered by R.G. Thomas J.: R. v. Beatty (2008), 76 B.C.L.R. (4th) 201, 371 N.R. 119, [2008] 1 S.C.R. 49, 420 W.A.C. 7, 251 B.C.A.C. 7, 54 C.R. (6th) 1, 57 M.V.R. (5th) 1, 2008 CarswellBC 307, 2008 CarswellBC 308, 2008 SCC 5, 228 C.C.C. (3d) 225, 289 D.L.R. (4th) 577, R. v. Mejias R.G. Thomas J. 133

[2008] 5 W.W.R. 1, 179 C.R.R. (2d) 247, [2008] A.C.S. No. 5, [2008] S.C.J. No. 5 (S.C.C.) — referred to R. v. Stellato (1994), [1994] 2 S.C.R. 478, 1994 CarswellOnt 1159, 3 M.V.R. (3d) 1, 72 O.A.C. 140, 31 C.R. (4th) 60, 90 C.C.C. (3d) 160, 18 O.R. (3d) 800, 168 N.R. 190, 1994 CarswellOnt 84, EYB 1994-67659, [1994] S.C.J. No. 51 (S.C.C.) — referred to Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 s. 249 — referred to s. 249(4) — pursuant to s. 255(3) — pursuant to

TRIAL of accused on charge of impaired driving causing death and dangerous driving causing death.

R.G. Thomas J.:

1 Gianpiero Mejias is charged with dangerous driving and impaired driving causing death. 2 The indictment against the defendant Mejias charges as follows: (1) On or about the 2nd day of February, 2008, at the City of Missis- sauga, in the Central West Region, unlawfully did operate a motor vehicle on a street or road or highway or public place in a manner that was dangerous to the public and did thereby cause death to Yesenia Toala, contrary to section 249(4) of the Criminal Code of Canada. (2) On or about the 2nd day of February, 2008, at the City of Missis- sauga, in the Central West Region, unlawfully did, while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle and did thereby cause the death of Yesenia Toala, contrary to section 255(3) of the Criminal Code of Canada. 3 The focus of counsel throughout the trial and in their closing submissions was on the following crucial issues: has the Crown established beyond a reasonable doubt (1) that, viewed objectively, the defendant was driving in a manner that was dangerous to the public having regard to all the circumstances? (2) that the defendant’s conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the defendant’s circumstances? (3) that the ability of the defendant to operate a motor vehicle was impaired by alcohol or a drug at the time of the collision? 4 Causation was not addressed during the trial or in the submissions of counsel. 134 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

Dangerous Driving 5 The onus lies on the Crown to prove both the actus reus and the mens rea of the offence of dangerous operation of a motor vehicle. 6 With respect to the actus reus, the defendant’s conduct must be measured as against the wording of s. 249. The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the defendant was driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably be expected to have been at that place”. It is the manner in which the motor vehicle was operated that is at issue, not the consequence of the driving. Where death is caused, the consequence may make the offence a more serious one under s. 249(4), but it has no bearing on the question of whether the offence of dangerous operation of a motor vehicle has been made out or not. 7 The trier of fact must also be satisfied beyond a reasonable doubt that the defendant’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the defendant’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the defendant’s circumstances. Moreover, if an explanation is offered by the defendant, then in order to convict the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the defendant and would not have undertaken the activity. The objective test with respect to mens rea must be modified to give the defendant the benefit of a reasonable doubt about whether a reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger. Short of incapacity to appreciate the risk or incapacity to avoid creating it, the defendant’s personal attributes such as age, experience and education are not relevant. The standard against which the conduct must be measured is the conduct expected of the reasonably prudent person in the circumstances. The reasonable person, however, must be put in the circumstances the defendant found himself in when the events occurred in order to assess the reasonableness of the conduct. 8 If the conduct does not constitute a marked departure from the standard expected of a reasonable prudent driver, there is no need to pursue the analysis. The offence will not have been made out. If, on the other hand, the trier of fact is convinced beyond a reasonable doubt that the objectively dangerous conduct constitutes a marked departure from the norm, the trier of fact must consider evidence about the actual state of mind of the defendant, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the defendant’s position would have been aware of the risk created by this conduct. R. v. Mejias R.G. Thomas J. 135

9 It is not necessary for the Crown to prove that the defendant had a positive state of mind, such as intent, recklessness or wilful blindness. Evidence about the actual intention of an accused is relevant to a court’s objective assessment of whether or not conduct constitutes a marked departure from the norm. The presence of objective mens rea is determined by assessing the dangerous conduct as against the standard expected of a reasonably prudent driver. If the dangerous conduct constitutes a marked departure from the norm, the offence will be made out; see R. v. Beatty, [2008] 1 S.C.R. 49 (S.C.C.). 10 There is no doubt that conduct occurring in a few seconds can constitute a marked departure from the standard of a reasonable person.

Impaired Driving 11 The offence of impaired operation of a motor vehicle is established by proof of any degree of impairment ranging from slight to great. The prosecution need not establish a marked departure from normal behaviour. Impairment is an issue of fact for the trier of fact. see R. v. Stellato (1994), 31 C.R. (4th) 60, 90 C.C.C. (3d) 160 (S.C.C.). 12 The onus is upon the prosecution to establish beyond a reasonable doubt that the defendant’s ability to operate a motor vehicle at the time of the driving was impaired by alcohol or a drug. 13 Operating a motor vehicle requires a person to exercise both physical and mental ability. 14 Physical ability refers to the ability of the driver to perform normal driving functions in a proper and timely way, for example, steering, braking, and react- ing to changing circumstances and conditions. 15 Mental ability has to do with perception, judgment, prompt and accurate assessment of existing or changing circumstances and conditions. 16 Impairment is a matter of degree for which there is no specific test or precise measure. It may be slight. It may be great. Or, it may be somewhere in between. It may involve the physical or mental ability to operate a motor vehicle or some of both. 17 The prosecution does not have to prove a marked departure from normal driving behaviour or even improper driving. A person’s ability to drive may be impaired by alcohol even though there is no evidence of bad driving. On the other hand, people may drive badly without being impaired. The issue to decide is not whether the defendant drove badly. The issue is whether the defendant’s ability to drive the motor vehicle was impaired by alcohol at the material time. 18 It is necessary to consider all the evidence. It is important to take into account, for example, what and how much the defendant had to drink and how quickly he did so. It should be borne in mind, as well, the actual manner in which the defendant drove; the physical symptoms displayed; the defendant’s 136 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

general conduct and appearance; the presence or absence of a smell of alcohol on the defendant’s breath; the results of any scientific tests; and the evidence of an expert about blood concentration and the effect of alcohol consumption on physical and mental abilities.

Overview 19 On February 2, 2008, the defendant was driving his 1996 van on Highway 403 between Hurontario Street and Mavis Road at 1:13 a.m. when he lost control of the vehicle as he tried to change lanes to avoid a collision with a vehicle in front of him. The van crossed from lane 3 to lane 1 and collided with the concrete median. The impact propelled the van back across the four lanes at a 90 degree angle. It came to rest in the ditch near Mavis Road. A female passenger, Yesenia Toala, who was seated on the rear bench seat of the van, and likely not wearing a seat belt, was ejected upon impact and died at the scene. There were two other passengers in the van, Nicole Spinelli, who was seated in the front passenger seat and the defendant’s male roommate who was seated on the rear bench seat behind Ms. Spinelli. The deceased woman had been sitting behind the defendant on the rear seat. 20 The roads were snow-covered and the lanes of traffic were slushy and slippery. There had been numerous motor vehicle property damage accidents in the immediate area which kept police officers very busy. 21 Highway 403 in the vicinity of the collision was very well lit because of lights at Square One mall. The road is quite straight and level and visibility was good because the snow storm had ceased and there was only a light flurry of snow in the air. Traffic was light. Road conditions had been very poor but they were starting to improve. Tire tracks were visible in the lanes. Slush was between the tracks and also there was slush outside the tire tracks. Pavement was visible inside the tire tracks. The same conditions existed in lanes 2, 3 and 4. 22 The Crown called three civilian witnesses, Carl de Munck, a veteran limousine driver, Michelle Price, a passenger in a motor vehicle driven by her husband and Nicole Spinelli, who had met the defendant at a night club and had been in his company a few times. The Crown also called a police officer who dealt with the defendant at the scene, an intoxilyzer officer who took samples of the defendant’s breath at the OPP Port Credit detachment some two hours after the collision, two officers who examined the van at the scene and later and a toxicologist. 23 The defence did not call any witnesses.

The Evidence 24 The defendant picked up Nicole Spinelli at her mother’s house in Missis- sauga. He was driving a van. It was snowing and she described the weather as “bad”. The windshield wiper on the driver’s side was moving but it did not clean R. v. Mejias R.G. Thomas J. 137

the window properly. It did not affect the defendant’s ability to drive en route to his house in the Jane Street and Wilson Avenue area. They arrived there at about 10:45 p.m. and she made no complaint about the windshield wiper at that time. 25 At the defendant’s house, they both consumed two rum and coke drinks. The defendant poured the drinks and she carefully watched him pouring them because she knew he would be driving. They intended to pick up one of her friends and go to a night club. 26 They left at some time between midnight and 12:30 a.m. They were en route to pick up her friend and were travelling in the van on Highway 403. The windows of the van were down somewhat because they were smoking. The music on the radio was loud. The defendant was slouched in the driver’s seat. 27 She testified that the defendant was driving fast and a couple of minutes before the collision he was swerving the van from one lane to another. 28 She explained that when they were driving from her mother’s house to the defendant’s residence he was in fine condition. When they left the defendant’s house to drive to her friend’s residence, she felt that the defendant was slurring his words and that he was not paying as much attention when he was driving. She observed no signs of impairment except slurring of words. 29 She felt that the weather was just as bad as it was when they drove to his house at 10:45 p.m. She said she was nervous and the road conditions were slippery. She said the defendant was driving between 110 and 120 km/hr. She felt he was going pretty fast and asked him to slow down just before the crash. She said the defendant was swerving in and out and she did not trust his driving. She claims she put on her seatbelt a couple of minutes before the collision. She did not know if the other three persons in the vehicle were wearing seatbelts. 30 She said that she saw a car in front of the van which was driving much slower than they were. Both vehicles were in the third lane. She said she could hardly see the car in front but she added that she was not able to see the tail lights. When she saw the vehicle ahead, which had no rear tail lights, she told the defendant to get out of the way and swerve and he responded immediately. She asked him to change lanes because they were moving quickly as they approached the slower vehicle. She had earlier asked him to slow down. 31 The defendant pulled the driver’s wheel quickly to the left and the van smashed into the cement guardrail and turned quickly to the right and ended up in the ditch on the far side of the road. 32 She stated that she noticed the car before they approached but did not say anything until the van was really close to the slower vehicle. On cross-examination she was reminded once again that she had stated that as soon as she recognized that a car with no lights was ahead of the van she told the defendant to get out of the way and he did so immediately. The defendant slammed on his brakes, the van slipped and skidded before crashing into the concrete median. 138 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

33 She further stated that the car in front of her, which was going slowly, was either a Honda or an Acura with four doors. It was not a van or an SUV. She said she saw the car before the collision but could not see tail lights. She told a man at the scene that the car in front of the van had no tail lights, which she repeated to police. 34 After the collision, she went to hospital and had a CAT scan on her knee. Subsequently she was released. She gave a statement to police at 4:43 a.m. at hospital. She agreed the report was accurate. She adopted it. She read it before she testified. In her testimony, she said it did not seem that he was intoxicated when they left the defendant’s residence but when he was driving she believed he was intoxicated. There was nothing in the police statement about the defendant being intoxicated. Her only explanation was that she was in shock and scared. Her concerns were about the defendant’s driving. She said that the driver’s wiper blade was defective and not cleaning the window properly and that he was speeding. Also, there was no mention in the statement that the defendant was swerving the van in and out of lanes prior to the collision. Again, her only explanation was that she was frightened and in shock. 35 She acknowledged that she had commenced a lawsuit against the defendant as a result of the collision. 36 Carl de Munck is a veteran limousine driver. He has operated his own business for some 10 years. On February 2, 2008, he left the Toronto International Airport at 1:00 a.m. with a female customer en route to her residence in Burling- ton. There had been a snow storm and it was just starting to lift when he left the airport. There was a light flurry of snow in the air. 37 Road conditions on Highway 403 were very poor but they were starting to improve. The roads had been snow-covered. At the material time, the roads were still covered with some snow. Tire tracks were visible with slush in between the tracks. There was slush outside the tire tracks and pavement was visible inside the tracks. The conditions in lanes 2, 3 and 4 were the same – slush and black pavement were evident and the roads were still wet. His wiper blades were operating intermittently. 38 He said the traffic was light. He passed an accident on Highway 403 within one kilometre of the area where the van collided. The car was in a ditch and police were present. He said the conditions were very treacherous. 39 He saw a vehicle which was at least 500 metres in front of him. All traffic in front of him was in lane 3. He saw headlights behind him but he said the vehicles were a fair distance away. The defendant’s van passed the limo on the left side. The limousine was in lane 3 and the van was in lane 2 when it passed him. He estimated that the van, which he saw for the first time when it was beside him, was travelling at approximately 120 km/hr. No other vehicle had passed him. He exclaimed to his fare “Look at this crazy fool”. He said he was travel- R. v. Mejias R.G. Thomas J. 139

ling at approximately 90 km/hr. on Highway 403. He wanted to stay at no more than 90 km/hr. because of the existing conditions. 40 He said the van maintained its speed and he was shocked that some person would pass his vehicle given the road conditions. However, he was surprised that the driver managed to be in control of the van as he passed and moved into lane 3. 41 He said the visibility was relatively clear and good. He could see clearly in the area of Hurontario Street and Mavis Road. The area was brightly lit. High- way 403 was perfectly straight in this area. 42 He described the lane change of the van from lane 2 to lane 3 as an aggressive manoeuvre as it entered into lane 3 in front of him. 43 Mr. de Munck stated that there was a car ahead of him in lane 3 between 400 and 500 metres away. He said he could see the tail lights of the vehicle. The van maintained its high rate of speed and pulled away from the limousine. There was a gap of approximately 500 metres between the van and the limo when the van made an abrupt lane change from lane 3 to lane 2. Again, he described this second lane change as aggressive. The van’s brake lights came on and he described it as a hard braking. 44 Within a very short time, a matter of a few seconds, the van swiftly moved from lane 3 to lane 2, apparently to avoid colliding with the car in front of him. It was a very short time between the two manoeuvres – almost immediate. The defendant lost control of the van, hit the centre cement barrier, spun around and went at a 90 degree angle across all traffic lanes and across “off lane and ramps of Mavis Road into a ditch”. He said to his passenger as the defendant lost control – “Well here he goes.” 45 As a result of the collision with the cement barrier, the van was operating at approximately 20 km/hr. and there was no change of speed of the van thereafter until it ended up in a ditch. 46 Mr. de Munck stopped the limo and attempted to assist at the scene. He did not smell alcohol on the defendant but stated that he did not get close enough to him to notice whether there was an odour of alcohol on his breath. He said that the defendant was distraught after the collision stating “I killed her – take my life”. 47 At the time of the collision, the markings between the lanes were obscured. You could see them in some areas but in others, where the slush had been pushed to the side, you could not. There was more slush down the centre of each lane and on the lines dividing the lanes. It appeared to him that the defendant was possibly trying to avoid the vehicle in front of him or may have been trying to pass it. He could not say for certain. 140 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

48 He was certain that the vehicle that the defendant attempted to either avoid or pass, which was in front of him, was the same vehicle he had seen in front of him earlier. He said that he could see the tail lights and he was certain of that. 49 Michelle Price was in a vehicle driven by her husband. She was interviewed by police and gave her statement approximately one year after the collision she observed. She made no notes at the material time or shortly thereafter. In fact, she made no notes at all. 50 She said that she saw the van pass their vehicle which was in lane 3 strike the median, come in front of their vehicle, and end up in the ditch. 51 She said that she stated to her husband, when the van passed her vehicle, “What is he doing” because the van was going so fast, some 30 or 40 kilometres faster than they were driving. She remembers very little else other than the roads were slippery and she could see where tires had left their marks. She was not certain whether her husband was driving the van or their Altima. Both vehicles are silver. She acknowledged that her memory was unfortunately a problem. She felt that her husband was driving approximately 60 to 70 km/hr. She had no recollection of seeing any other vehicles. 52 Fawn James was an Ontario Provincial Police constable at the relevant time for approximately 14 years. She explained that there were quite a few property damage accidents in the immediate area and she set up a makeshift collision reporting centre in a Tim Horton’s parking lot at Courtney Park and Kennedy Road. 53 She attended the scene of the collision at 1:30 a.m. The roads were slick, slushy and snow covered. 54 At the scene, she asked the defendant if he had been drinking or had consumed alcohol and he said no. She had detected a pungent odour of alcohol on the breath of the male passenger in the van. 55 She took the defendant to her police cruiser. She noticed nothing unusual about the way he walked to the cruiser. She placed him in the front seat. When they arrived at the station, he was steady on his feet and there was nothing unusual about his walking. 56 When they were in the cruiser, she detected a slight odour of an alcoholic beverage on the defendant’s breath. She said that his speech was not slurred and his eyes were not watery or glassy. His eyes were slightly red but his pupils were not dilated. Eventually, he admitted he had had a couple of drinks of rum and cokes at his house earlier in the evening. His face was not flushed. 57 At the scene, she made a breath demand for the alcohol screening device and a fail was recorded at 1:45 a.m. 58 At the scene she received information from another officer that the defendant was under arrest for dangerous driving causing death and impaired opera- R. v. Mejias R.G. Thomas J. 141

tion of a motor vehicle causing death. When told of the charges, the defendant replied, “Whatever you say, I was not driving recklessly”. 59 At the detachment at 2:24 a.m., the defendant appeared to be in shock. The defendant was turned over to Constable Tamara Beckers, the intoxilyzer technician at 2:25 a.m. He spoke to duty counsel thereafter. 60 Constable Tamara Beckers joined the Ontario Provincial Police in 2004. She qualified as an intoxilyzer technician in 2007, some months prior to the collision in this case. 61 She obtained samples of the defendant’s breath. The first sample was completed at 3:16 a.m. and the reading recorded was 82 milligrams of alcohol in 100 millilitres of blood. The second test was started at 3:37 a.m. The sample provided a reading of 72 milligrams of alcohol in 100 millilitres of blood. 62 At first, she observed no gross indicators that the defendant was impaired. She acknowledged that his fine motor coordination was good from conduct she observed in the station such as removing his belt, obtaining his wallet, emptying his pockets and placing the mouthpiece of the intoxilyzer in his mouth. 63 She detected a strong odour of alcohol on the defendant’s breath. His face was flushed and his eyes were watery and bloodshot. However, his words were not slurred and he was not stumbling. He was walking fine. He was quiet and it appeared he was in shock. He was completely cooperative and his speech was good. 64 Constable Jeff Bast, an Ontario Provincial Police collision reconstructionist and Adrian Perry, a technical collision investigator who assisted Constable Bast, concluded, after their examinations, that none of the four occupants were wearing seatbelts at the time of the collision. The van was in good mechanical condition. 65 Jean Paul Palmentier, a toxicologist called by the Crown, related back the readings taken at 3:16 a.m. and 3:37 a.m. After taking into account certain as- sumptions, including the rate of elimination for most adults being at 10 to 20 milligrams of alcohol per hour, and truncating the lowest reading to 70 milligrams, he concluded that an appropriate range of blood alcohol concentration (“B.A.C.”) at the time of the collision was 70 to 115 milligrams of alcohol in 100 millilitres of blood. He did not have any information about weight, gender or height of the individual. 66 He acknowledged that the blood-breath ratio could overestimate the B.A.C. by 10 per cent. Therefore, it would not be inappropriate to reduce the B.A.C. range, after truncation, to 60 and 105 if the readings were overestimated by 10 per cent. 67 He stated that he would expect an individual would be impaired in one or more of the faculties necessary to operate a motor vehicle if the individual had a B.A.C. of 70 to 115. 142 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

68 He added that a B.A.C. of 105 would make it likely that an individual’s ability to drive would be impaired by alcohol, but he could not be sure. He did say that as the blood alcohol concentration rises the likelihood an individual is not impaired decreases because more facilities are affected.

Analysis Impaired Driving 69 It is acknowledged that the defendant, his male roommate and Nicole Spinelli were very upset after the collision. His roommate’s girlfriend, who was likely not wearing a seatbelt, was ejected from the van and died immediately. A man who stopped at the scene to assist saw two males crying. They were the defendant and his roommate. He saw Nicole Spinelli on the road crying. He asked her what happened and she told him there was a car with no lights and they swerved out of the way and her friend flew out the window. She was not wearing a seatbelt. Both the defendant and the roommate were very emotional which was observed by others. 70 Constable James, who is an experienced police officer, noticed few indicia of impairment. She was with the defendant at the scene of the collision, in the police cruiser at the scene, en route to the detachment and for some time at the detachment. She detected a slight odour of an alcoholic beverage on his breath and his eyes were slightly red. 71 Constable Beckers said at first there were no gross indicators that the defendant was impaired and his fine motor coordination was good. She said she detected a strong odour of alcohol on his breath and that his face was flushed and his eyes were watery and bloodshot. His speech was good, he was not slurring his words, he was walking fine and not stumbling in any way. He was quiet and likely in a state of shock. 72 Obviously, if in fact the defendant’s eyes were watery and bloodshot and his face was flushed, there are many other explanations in the evidence to account for those indicators. Constable James said she detected a slight odour of an alcoholic beverage on his breath whereas Constable Beckers claims there was a strong odour of alcohol on his breath. In view of the low intoxilyzer readings, it is doubtful he would have a strong odour of alcohol on his breath when she observed him. 73 The breath readings were low by any standard. Whether the range of B.A.C. is 70 to 115 or 60 and 105, toxicologists normally take the lower of the two readings. That means that the readings would be below the maximum limit of 80 milligrams of alcohol in 100 millilitres of blood. The toxicologist acknowledged that he could not be sure that an individual’s ability to drive would be impaired when the B.A.C. is between 60 and 105. R. v. Mejias R.G. Thomas J. 143

74 Nicole Spinelli stated that the defendant had only two drinks of rum before they left his house sometime between 12:00 midnight and 12:30 a.m. There was nothing to indicate the defendant was impaired at the time they left. It was her opinion that thereafter he did not keep the same focus on his driving that he did earlier in the evening. At the time of the collision, it was her opinion that he was intoxicated. She noticed that he was slurring his words. That said, however, she did not tell the police in her statement taken at the hospital later on in the morning that the defendant was intoxicated. She made no mention of his condition. Also, she said he was swerving when driving the van a few minutes before the collision. Once again, she made no mention of this to the police when she provided her statement. Her only explanation was that her main focus was on speed. She said the defendant was driving at an excessive rate of speed and his windshield wiper on the driver’s side was not cleaning the window properly. These were her main concerns. Constable James said the defendant’s speech was not slurred. Constable Beckers said his speech was good and he was not slurring his words. 75 Ms. Spinelli has commenced an action for damages against the defendant. Obviously that is her perfect right but one must be careful in examining her testimony in that light. 76 I conclude that the totality of the evidence falls considerably short in establishing beyond a reasonable doubt that the defendant’s ability to operate a motor vehicle was impaired by alcohol at the time of the collision.

Dangerous Driving 77 I was impressed by the testimony provided by Carl de Munck. He was an experienced veteran limousine driver who had an excellent view of what took place. When the van initially passed the limousine, Mr. de Munck exclaimed to his passenger, “Look at this crazy fool”. He estimated that the van was travelling at a high rate of speed, approximately 120 km/h. He was travelling at no more than 90 km/h. Within a matter of seconds, the van, which had been in control, made another aggressive lane change and again he exclaimed, “Well, here he goes” to his passenger. 78 Mr. de Munck saw tail lights on the vehicle in front of him. He was certain that no other vehicle passed him and that the vehicle that the van attempted to pass was the same vehicle he had seen earlier. I accept his evidence that the tail lights were operating and that visibility was very good and that he could see the lights from at least 500 to 700 metres away. Mr. de Munck is an independent witness with a great deal of driving experience and he was very careful and thorough in the manner in which he gave his testimony. He was very surprised that the driver of the van was able to keep it under control when he initially passed the limousine. But, in a matter of seconds, the van was out of control 144 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

after it came close to the vehicle in front of him and aggressively swerved to avoid striking it. 79 The evidence of Nicole Spinelli is not as reliable, in my opinion, as the testimony provided by Mr. de Munck, in particular concerning the tail lights of the vehicle in front of them. The radio was on loud and all four occupants were smoking in the van. The windows were down slightly. They were on their way to pick up Ms. Spinelli’s friend and then proceed to a nightclub. They were in the party mood. 80 I am satisfied that the tail lights were visible on the vehicle in front of the limousine and the van. It may very well be that Ms. Spinelli did not see the tail lights but that does not mean they were not operating. She said the vehicle had no tail lights when she was at the scene and very upset. Perhaps she experienced pangs of guilt because she was in the van when the deceased was ejected and killed. The defendant was driving very fast prior to reaching the scene of the collision. She told him to slow down. She was nervous and did not trust his driving. The road conditions were slippery. She estimated he was driving between 110 and 120 km/h. She said that he was swerving before passing the limousine. It seems he did not heed her advice to slow down. Although she saw the vehicle in front of the van after they passed the limousine she did not tell the defendant to slow down until the van was quite close to the car in front. At that moment, she warned the defendant to get out of the way and swerve. He responded immediately by aggressively attempting to move into lane 2. The van went out of control and crashed. 81 Mr. de Munck stressed that the driver of the van did not reduce speed as he approached the vehicle in front of him in lane 3. The visibility was good, and the area was well lit. It is apparent the defendant was not as focused as he had been earlier. There were distractions in the van and the occupants were in the party mood. The defendant was driving at a high rate of speed. The vehicle in front of him was driving much slower. The defendant made his movement to pass the slower vehicle too late. The other vehicles in lane 3, with the exception of the defendant, were travelling cautiously. The defendant rammed on his brakes and aggressively steered to the left trying to avoid colliding with the vehicle in front. He lost control of the van and although he did not strike the vehicle in front of him, the van careened to the left, smashed into the cement barrier and was propelled to the right at a 90 degree angle across all four lanes of Highway 403 coming to rest in a ditch near Mavis Road. 82 I am satisfied beyond a reasonable doubt that the defendant was driving in a manner that was dangerous to the public having regard to all of the circumstances. I am also satisfied beyond a reasonable doubt that the defendant’s conduct amounted to a marked departure from the standard of care that a reasonable person would have observed in the circumstances existing at the material time. The defendant’s dangerous driving caused the death of the deceased woman. R. v. Drake 145

Conclusion 83 In the result, the defendant is found guilty of dangerous driving causing death. I find him not guilty of impaired driving causing death. Accused convicted of dangerous driving causing death and acquitted of impaired driving causing death.

[Indexed as: R. v. Drake] Her Majesty the Queen against Ogus Francis Drake Newfoundland and Labrador Supreme Court (Trial Division) Garrett A. Handrigan J. Heard: April 20, 2010 Judgment: April 20, 2010 Written reasons: April 22, 2010 Docket: 200906T0194, 2010 NLTD 82 Alison Manning, for Her Majesty the Queen Marcus Evans, for Ogus Francis Drake Criminal law –––– Offences — Operation of motor vehicle while disqualified — Sen- tencing –––– Accused was arrested for driving while disqualified — Accused had been prohibited from driving six times in last 20 years, for periods ranging from two to ten years — At trial, accused pleaded guilty — Sentencing hearing was held — Accused was sentenced to 12 months’ imprisonment and ten-year driving prohibition — Most noteworthy fact about accused was his prior criminal record, particularly as it related to driving offences — Overriding consideration throughout relevant sections of Criminal Code is protection of public and how that can be achieved in context of legislation and in circumstances of offence — Sentence of 12 months’ imprisonment was warranted — Ac- cused’s previous record was particularly serious because of many driving-related offences on it, for most of which accused had received jail terms, ranging from seven days to six months — It is mandatory for court that convicts person of driving while disqualified to impose driving prohibition of at least three years, according to s. 259(1) of Code — Prohibitions that had been imposed on accused were aimed at eliminating risk he posed to public for periods of time stated in prohibitions, as much as they were aimed at deterring accused’s behaviour — Public should be protected as far as possible from risk presented to it when accused gets behind wheel of motor vehicle. Criminal law –––– Sentencing — Types of sentence — Prohibition — Driving –––– It is mandatory for court that convicts person of driving while disqualified to impose driving prohibition of at least three years. 146 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

Criminal law –––– Sentencing — Principles — Deterrence — Specific –––– Specific deterrence of accused repeatedly convicted of driving offences was primary principle of sentencing. Criminal law –––– Sentencing — Principles — Aggravating factors –––– Most noteworthy fact about accused was his prior criminal record, particularly as it related to driving offences. Criminal law –––– Sentencing — Principles — Miscellaneous –––– Protection of public prime consideration in sentencing for repeat offender for driving while disqualified. Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 s. 259(1) — referred to s. 259(1)(c) — referred to s. 259(4) — referred to s. 718 — considered

SENTENCING of accused on charge of driving while disqualified.

Garrett A. Handrigan J. (orally): Introduction 1 Ogus Francis Drake pleaded guilty to driving a motor vehicle while disqualified contrary to section 259(1) of the Criminal Code of Canada1. The facts, which the Crown submitted and Mr. Drake accepted, indicate that a judge of the Provincial Court prohibited Mr. Drake from driving for ten years on September 20, 2007; and, of course, Mr. Drake was still subject to that prohibition when the police found him operating an unregistered motor vehicle in Marystown, NL on October 21, 2009.

The Issue 2 I have to decide, what is the appropriate sentence for this offence.

The Law General Principles 3 Any discussion of sentences for criminal offences must start with the statement of principles that appears in section 718 and following sections of the Criminal Code. It is not necessary to reprint the statutory provisions here. I note that the principles stated in those sections encompass a broad spectrum of considerations from denunciation, through deterrence, reparation, rehabilitation and

1S.C. 1985, c. C-46. R. v. Drake Garrett A. Handrigan J. 147

the general promotion of a sense of responsibility in offenders for the losses experienced by their victims. 4 Also of concern are proportionality, the alternatives to incarceration where they are both available and appropriate, and the factors that mitigate or aggra- vate the offence. The overriding consideration throughout these sections is the protection of the public and how that can be achieved in the context of the legislation and in the circumstances of the offence. Ultimately, the sentence must fit both the offence and the offender. 5 Communicating to accused persons and others of like mind that they must refrain from criminal activity is one of the primary goals of sentencing. Denun- ciation is also important, especially for driving offences which cause serious bodily harm to third parties. It is generally felt that deterrence and denunciation of criminal behaviour involving offences of that magnitude can be achieved best if custody is ordered.

The Offence 6 Driving while disqualified is punishable under section 259(4) of the Crimi- nal Code, both by summary conviction and by indictment, at the Crown’s elec- tion. The maximum punishment when, as here, the Crown proceeds by indictment is five years’ imprisonment. There is no minimum sentence.

Analysis Background 7 The RCMP at Marystown received an anonymous tip at approximately 2:50 pm on October 21, 2009 that Mr. Drake was operating a green Chevrolet Malibu, licence number HBD 723. The tip indicated that Mr. Drake had no driver’s licence. Cst. Broomfield of the RCMP confirmed that Mr. Drake was prohibited from driving a motor vehicle anywhere in Canada until 2017. 8 Cst. Broomfield patrolled to the area and saw the vehicle which Mr. Drake was reported to be driving leaving Reddy Subdivision in Marystown and entering Marine Drive. Cst. Broomfield followed the vehicle until it pulled into a driveway at 152 Marine Drive. Cst. Broomfield approached the vehicle when it came to a stop and confirmed that Mr. Drake was the driver. Mr. Drake acknowledged that he had neither a driver’s licence nor registration for the vehicle when Cst. Broomfield asked him to produce his driver’s licence and registration. A female passenger was in the vehicle with Mr. Drake at the time. 9 Cst. Broomfield arrested Mr. Drake for driving while prohibited and returned with him to Marystown Detachment where Mr. Drake made several unsuccessful attempts to contact counsel before indicating he no longer wished to speak to counsel. Mr. Drake was released on a promise to appear in court on December 16, 2009, which he did. On that date the Crown elected to proceed by 148 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

indictment. Mr. Drake chose to be tried in this court by judge alone, waived a preliminary inquiry and was ordered to stand trial in this court. 10 Mr. Drake was arraigned in this court on February 11, 2010 and pleaded “not guilty”. I set Mr. Drake’s trial for today’s date, but he changed his plea to guilty. The Crown provided the facts I set out above which Mr. Drake accepted. I find him guilty of the offence based on those facts and will now proceed with sentence.

The Accused 11 Mr. Drake was born July 2, 1957 and is fifty-two years old. Mr. Drake is not married and is not, to my knowledge, supporting anyone. He is unemployed and receives income support from the provincial government. Mr. Drake told me, when I asked him if he had anything to say about sentence, that he has recently received a call to return to work at the fishplant in St. Lawrence when it reopens early next month. Mr. Drake said he worked in that fishplant last year for eight weeks. Although he did not qualify for EI benefits based on last year’s employment, he said he is hoping that he will qualify after this stint. 12 The most noteworthy fact about Mr. Drake is his prior criminal record, particularly as it relates to driving offences. Mr. Drake has eight previous convictions for impaired driving and/or refusing the breathalyzer. He has also been convicted of driving while disqualified. Mr. Drake was first convicted of an impaired-refusal offence more than twenty-six years ago, on November 16, 1983. He received a fine for that offence. 13 He next appeared before court on November 28, 1985 for a driving-related offence when he was convicted of refusing the breathalyzer. He received a fine of $50 at that time and went to jail for seven days, to be served on an intermittent basis. In the next twenty-two years, a series of other impaired-refusal offences followed with alarming regularity, for which the court imposed escalating sentences, all of which included driving prohibitions and/or jail terms as parts of their dispositions. 14 Mr. Drake’s complete record, including the offences I just referred to are shown in the table below. Offence Date of Conviction Sentence Impaired Driving November 16, 1983 Fine: $800 Refusing November 28, 1985 Fine: $50 Breathalyzer Jail: Seven days. Impaired Driving June 12, 1986 Jail: Three months. Impaired Driving January 23, 1990 Jail: Four months. Prohibition: Two years. R. v. Drake Garrett A. Handrigan J. 149

Offence Date of Conviction Sentence Impaired Driving March 26, 1993 Jail: Thirty days. Prohibition: Three years. Impaired Driving November 25, 1999 Jail: Three months. Prohibition: Three years. Refusing November 25, 1999 Jail: Three months (con- Breathalyzer current). Prohibition: Three years. Driving while Pro- July 23, 2002 Jail: Thirty days. hibited Prohibition: Two years. Impaired Driving September 20, 2007 Jail: Six months. Prohibition: Ten years. 15 Mr. Drake has also been convicted twice for causing a disturbance and once for damage to property. However, those offences are unrelated to the present charge so I did not include them in this table. Nor have I taken them into account, except in a very broad sense, in sentencing Mr. Drake here.

The Sentence 16 The Crown asks me to send Mr. Drake to jail for this offence; and submits that he should be sentenced to at least twelve months. The Crown stresses Mr. Drake’s prior criminal record, especially his lengthy driving-related record. Mr. Drake’s counsel concedes that Mr. Drake should go to jail. He classifies driving while disqualified as a “regulatory” offence, which is less serious than either impaired driving or refusing the breathalyzer. He also notes that there was nothing particularly egregious about Mr. Drake’s driving when Cst. Broomfield stopped Mr. Drake on October 21, 2009. In particular, Mr. Drake’s counsel notes that his client was not under the influence of alcohol as he has been so often in the past. Mr. Evans thinks that a jail sentence of six months would reflect the relative seriousness of the offence and still achieve the principles of sentencing. 17 I agree with the Crown that a twelve month sentence is warranted in this case. Little can be said in Mr. Drake’s favour, except that he ultimately pleaded guilty to an offence that seemed to be incontestable. Mr. Drake’s previous record is long both in its duration and the number of previous convictions it con- tains. It is particularly serious because of the many driving-related offences on it, for most of which Mr. Drake has received jail terms, ranging from seven days to six months. I also note that Mr. Drake has been prohibited from driving six times in the last twenty years, for periods ranging from two to ten years. 18 None of these sentences appear to have deterred Mr. Drake and something more is needed to convey to him that his behaviour is fundamentally wrong. I 150 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

emphasize specific deterrence as the primary principle of sentencing, and note that the public should be protected as far as possible from the risk that Mr. Drake presents to it when he gets behind the wheel of a motor vehicle. I also acknowledge the importance of denouncing Mr. Drake’s behaviour and deterring others of like mind. 19 I reject the counsel’s submission that Mr. Drake’s offence is “regulatory” in nature. Mr. Drake has a propensity for driving motor vehicles while he is under the influence of alcohol. He has been disqualified in the past and is now disqualified from driving because of his proclivity to engage in this activity. The driving prohibitions which have been imposed on him are aimed at eliminating the risk he poses to the public for the periods of time stated in the prohibitions, as much as they are at deterring Mr. Drake’s behaviour. 20 When Mr. Drake drives while he is prohibited he flouts the court’s efforts to eliminate that risk and he shows contempt for the court’s interest in protecting the innocents who Mr. Drake may injure, maim or kill when he is incapable of operating a motor vehicle safely. I would also note that while Mr. Drake was not impaired or otherwise driving unsafely on this occasion he was operating an unregistered vehicle, which is also an offence.

Driving Prohibition 21 It is mandatory for a court that convicts a person of driving while disqualified to impose a driving prohibition: section 259(1) of the Criminal Code. That prohibition cannot be less than three years (including any period of imprisonment imposed) if the accused has been convicted of three or more driving-related offences, including driving while disqualified: section 259(1)(e) of the Criminal Code. 22 I prohibit Mr. Drake from driving a motor vehicle anywhere in Canada for ten years from the date he is released from custody. In doing so, I stress the need to protect the public; I am convinced that this can only be accomplished here if I prevent Mr. Drake from driving a motor vehicle. I also emphasize the need to deter Mr. Drake, other members of the public who might be inclined to act like him and denounce their behaviour.

Victim Surcharge 23 I am told that Mr. Drake is impecunious; so I waive a victim surcharge.

Summary and Disposition 24 Ogus Francis Drake pleaded guilty to driving while disqualified. The court sentenced him to jail for twelve months and prohibited him from driving a motor vehicle anywhere in Canada for ten years. In doing so, it emphasized specific deterrence, protection of the public and denunciation of the conduct, all of which R. v. Drake Garrett A. Handrigan J. 151

are relevant because of Mr. Drake’s lengthy and serious prior criminal record. It waived the victim surcharge because Mr. Drake is impecunious.

Order 25 In the result, I order that: 1. Ogus Francis Drake serve twelve months in jail. 2. Ogus Francis Drake is prohibited from driving a motor vehicle anywhere in Canada for ten years from the date he is released from custody. 3. Ogus Francis Drake is exempt from paying a victim surcharge. Accused sentenced to 12 months’ imprisonment and ten-year driving prohibition. 152 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

[Indexed as: R. v. Waters] Her Majesty the Queen (Respondent) and Daniel Barrie Waters (Appellant) Alberta Court of Queen’s Bench C.L. Kenny J. Heard: March 30, 2010 Judgment: September 23, 2010 Written reasons: September 29, 2010 Docket: Ft. McMurray 90569757S101, 2010 ABQB 607 L. Garcia for Appellant R. Hogan for Respondent Criminal law –––– Offences — Driving/care and control with excessive alcohol — Presumption of alcoholic content at time of offence — Reasonable and probable grounds –––– Accused charged with “over 80” — Police officer observed accused driving at night without headlights activated, and performed traffic stop of accused — Officer observed indicia of impairment emanating from accused, being glossy eyes and odour of alcohol when very close to accused and some fumbling of documents “at a level that could be consistent either with nervousness or impairment” — Accused stated that he had consumed two or three beers prior to driving — Officer then issued Intoxilyzer demand, and accused ultimately provided Intoxilyzer samples underlying offence charged — Ac- cused was convicted and appealed from conviction — Appeal allowed; accused acquitted — Crown conceded that Intoxilyzer demand constituted warrantless search, prima facie violation of s. 8 of Canadian Charter of Rights and Freedoms, and that Crown was required to establish reasonable and probable grounds for demand — In present case, indicia of impairment available, even assuming that driving without headlights on qualified as indicator, simply did not give [officer] reasonable grounds to believe [accused’s] ability to drive was impaired — Consumption of alcohol was established inter alia on accused’s admission, but glossy eyes, close-up odour of beverage alcohol and fumbling with documents went no further than to establish consumption — “Taken together the indicia are simply too minimal to show anything beyond that [accused] had consumed some alcohol, and that he had driven inattentively regarding his headlights. These indicia do not rise to the level required for a breath demand” — Absent sufficient reasonable and probable grounds for Intoxilyzer demand, Intoxilyzer samples were taken in violation of s. 8 of Charter — Samples were excluded on s. 24(2) Charter analysis, and absent other evidence against accused, accused was properly acquitted. Criminal law –––– Charter of Rights and Freedoms — Charter remedies [s. 24] — Exclusion of evidence –––– Accused charged with “over 80” — Police officer observed accused driving at night without headlights activated, and performed traffic stop of accused — Officer observed indicia of impairment emanating from accused, being glossy eyes and odour of alcohol when very close to accused and some fumbling of documents “at a level that could be consistent either with nervousness or impairment” — Accused R. v. Waters 153 stated that he had consumed two or three beers prior to driving — Officer then issued Intoxilyzer demand, and accused ultimately provided Intoxilyzer samples underlying offence charged — Accused was convicted and appealed from conviction — Appeal allowed; accused acquitted — Indicia of impairment observed were insufficient to constitute reasonable and probable grounds to issue breath demand, so Intoxilyzer samples were taken in violation of Canadian Charter of Rights and Freedoms and s. 24(2) Charter analysis was required — On first element of test in R. v. Grant, “[officer] should not have proceeded . . . on the weak indicia available to him”, as only evidence of modest alcohol consumption was available, and “It is a serious matter to take breath samples in breach of the Charter when Parliament has provided an alternate course in the form of screening tools . . . [t]he Court should dissociate itself from such conduct” — Second element of Grant test also weighed in favour of exclusion of evidence, as “[w]hile the taking of breath samples is non-intrusive, [accused] was arrested and detained for one 1/2 hours, and forced to provide incriminating evidence” — Third element of Grant test favoured inclusion of evidence, as Intoxilyzer evidence was highly reliable and constituted essentially whole of Crown’s case in serious drinking and driving prosecution — In totality of circumstances, s. 24(2) Charter analysis weighed in favour of exclusion of Intoxilyzer evidence, and absent further evidence against accused, accused was properly acquitted. Cases considered by C.L. Kenny J.: R. v. Andrews (1996), 46 C.R. (4th) 74, 104 C.C.C. (3d) 392, 178 A.R. 182, 110 W.A.C. 182, 20 M.V.R. (3d) 140, 1996 CarswellAlta 7, [1996] A.J. No. 8 (Alta. C.A.) — considered R. v. Appleby (2009), 2009 ABPC 301, 2009 CarswellAlta 1639, [2009] A.J. No. 1135 (Alta. Prov. Ct.) — considered R. v. Cornell (2009), 192 C.R.R. (2d) 41, 65 C.R. (6th) 130, [2009] 7 W.W.R. 579, 243 C.C.C. (3d) 510, 6 Alta. L.R. (5th) 203, 2009 ABCA 147, 2009 CarswellAlta 580, 454 A.R. 362 (Alta. C.A.) — followed R. v. Cornell (2010), 404 N.R. 133, 76 C.R. (6th) 228, [2010] 10 W.W.R. 195, 2010 CarswellAlta 1472, 2010 CarswellAlta 1473, 2010 SCC 31 (S.C.C.) — referred to R. v. Cuthbertson (2003), [2004] 8 W.W.R. 162, 2003 CarswellAlta 890, 2003 ABPC 83, 40 M.V.R. (4th) 159, 26 Alta. L.R. (4th) 161, [2003] A.J. No. 800 (Alta. Prov. Ct.) — considered R. v. Dwernychuk (1992), 42 M.V.R. (2d) 237, 135 A.R. 31, 33 W.A.C. 31, 12 C.R.R. (2d) 175, 77 C.C.C. (3d) 385, 1992 CarswellAlta 263, [1992] A.J. No. 1058 (Alta. C.A.) — considered R. v. Grant (2009), 193 C.R.R. (2d) 1, 2009 SCC 32, 2009 CarswellOnt 4104, 2009 Cars- wellOnt 4105, 253 O.A.C. 124, 82 M.V.R. (5th) 1, 245 C.C.C. (3d) 1, 66 C.R. (6th) 1, [2009] 2 S.C.R. 353, 391 N.R. 1, 309 D.L.R. (4th) 1, [2009] A.C.S. No. 32, [2009] S.C.J. No. 32 (S.C.C.) — followed R. v. Harrison (2009), 193 C.R.R. (2d) 74, 2009 SCC 34, 2009 CarswellOnt 4108, 2009 CarswellOnt 4109, 253 O.A.C. 358, 245 C.C.C. (3d) 86, 66 C.R. (6th) 105, [2009] 2 S.C.R. 494, 97 O.R. (3d) 560 (note), 391 N.R. 147, 309 D.L.R. (4th) 87, [2009] S.C.J. No. 34 (S.C.C.) — considered R. v. Haut (2009), 2009 ABPC 337, 2009 CarswellAlta 1903 (Alta. Prov. Ct.) — considered 154 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

R. v. Haut (2010), [2010] 8 W.W.R. 512, 94 M.V.R. (5th) 78, 2010 ABPC 2, 2010 CarswellAlta 186, 23 Alta. L.R. (5th) 165, [2010] A.J. No. 113 (Alta. Prov. Ct.) — referred to R. v. McClelland (1995), 1995 CarswellAlta 176, 29 Alta. L.R. (3d) 351, 165 A.R. 332, 89 W.A.C. 332, 98 C.C.C. (3d) 509, 12 M.V.R. (3d) 288, [1995] A.J. No. 539 (Alta. C.A.) — followed R. v. Mejia (2009), 14 Alta. L.R. (5th) 368, 2009 CarswellAlta 1714, 2009 ABPC 310, [2009] A.J. No. 1169 (Alta. Prov. Ct.) — considered R. v. Niedergesaess (2008), 443 A.R. 109, 2008 CarswellAlta 997, 2008 ABQB 460 (Alta. Q.B.) — considered R. v. Niedergesaess (2008), 2008 ABCA 343, 2008 CarswellAlta 1411, 438 W.A.C. 373, 440 A.R. 373 (Alta. C.A. [In Chambers]) — referred to R. v. Shepherd (2009), 194 C.R.R. (2d) 86, 2009 SCC 35, 2009 CarswellSask 430, 2009 CarswellSask 431, 81 M.V.R. (5th) 111, [2009] 8 W.W.R. 193, 66 C.R. (6th) 149, 245 C.C.C. (3d) 137, 460 W.A.C. 306, 331 Sask. R. 306, [2009] 2 S.C.R. 527, 309 D.L.R. (4th) 139, 391 N.R. 132, [2009] S.C.J. No. 35 (S.C.C.) — followed R. v. Storrey (1990), 1990 CarswellOnt 78, 1990 CarswellOnt 989, 105 N.R. 81, [1990] 1 S.C.R. 241, 37 O.A.C. 161, 53 C.C.C. (3d) 316, 75 C.R. (3d) 1, 47 C.R.R. 210, EYB 1990-67522, [1990] S.C.J. No. 12 (S.C.C.) — followed R. v. Vandenberg (2010), 2010 CarswellAlta 720, 2010 ABQB 261 (Alta. Q.B.) — followed R. v. Wolbeck (2010), 2010 CarswellAlta 677, 2010 ABCA 65, 479 W.A.C. 331, 474 A.R. 331, 256 C.C.C. (3d) 271, 93 M.V.R. (5th) 21, 23 Alta. L.R. (5th) 40, [2010] A.J. No. 508 (Alta. C.A.) — followed Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 8 — pursuant to s. 24(2) — pursuant to Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 253 — considered s. 253(1) — considered s. 253(1)(a) — considered s. 253(1)(b) — considered s. 254(2) — considered s. 254(3) — considered s. 254(3)(a)(i) — considered s. 254(3)(b) — considered

APPEAL by accused from conviction on charge of “over 80”. R. v. Waters C.L. Kenny J. 155

C.L. Kenny J.: I. Introduction 1 Daniel Barry Waters (the “Appellant”) was convicted on November 25, 2009 on the charge of operating a motor vehicle while his blood alcohol level exceeded 80 milligrams of alcohol per 100 millilitres of blood, in violation of s. 253(1)(b) of the Criminal Code. He appealed his conviction to this Court.

II. Relevant Facts 2 At 2:05 a.m. on April 17, 2009, Constable Normandeau (the “Constable”) observed a vehicle driving through an intersection in downtown Fort McMurray with no lights on. He followed the vehicle as it turned into a nearby parking lot. At that point, the Constable turned on his emergency lights and pulled the vehicle over. He observed that the registration of the vehicle had expired, and ran police checks which showed that the driver’s licence had expired also. 3 After running his checks on the vehicle, the Constable approached it and asked to see the driver’s licence, registration and insurance. He noted that the Appellant looked around the car then in the glove box for the registration but did not immediately locate it. The Appellant handed the Constable his driver’s licence, then located the registration in the glove box among other papers and handed it to the Constable. The Appellant fumbled somewhat as he took the card out of his wallet. The Constable informed the Appellant that his licence had expired. The Appellant expressed surprise and would not believe the Constable until he pointed the expiry date out to the Appellant. 4 When the Constable leaned close to the Appellant to show him the expired licence, the Constable smelled alcohol on the Appellant’s breath. Earlier, the Constable had noted that the Appellant had glossy eyes. The Constable asked the Appellant about his alcohol consumption that evening, and he responded that he had consumed two or three beers. 5 At 2:07 a.m., the Constable formed the opinion that the Appellant’s ability to operate a motor vehicle was impaired by alcohol. He arrested the Appellant and made a breath demand. The Constable took the Appellant to the downtown detachment to provide him with an opportunity to contact counsel, and to obtain the breath samples. The lower reading for the breath samples was 110 milligrams of alcohol in 100 millilitres of blood. According to the Constable’s testimony, the Appellant was not released until at least 3:26 a.m. He had been de- 1 tained approximately 1 /2 hours. His vehicle was also towed. 6 It should be noted that the Constable was a new police officer. He had become a policeman in February 2009. This was the Constable’s third experience with an impaired driver. However, because the Constable was still in training at the time of the arrest, he had another police officer with him in the vehicle at the time he made the breath demand to the Appellant. 156 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

III. Trial Decision 7 At trial, a voir dire was held to determine whether the Certificate of Analysis should be entered into evidence. The Accused (now the Appellant) argued that the breath sample had been obtained in violation of s. 8 of the Canadian Charter of Rights and Freedoms because the Constable did not have the grounds required under s. 254(3) of the Criminal Code to make a breath demand. If a violation of the Charter was found, the Appellant argued that the evidence should be excluded under s. 24(2). 8 The Trial Judge found that the following grounds were available to the Con- stable, focusing only on what the Constable observed before he made the breath demand: a) the Appellant was driving at night with no headlights or daytime running lights; b) the Appellant was driving with his licence and registration expired; c) the Appellant fumbled initially with his documents; d) the Appellant was surprised when told his documents were expired; e) the Appellant had glossy eyes; f) the Constable smelled alcohol on the Appellant’s breath upon leaning in closer to show him the expiry date on the licence; and g) the Appellant admitted he had drunk 2 or 3 beers that evening. 9 The Trial Judge also noted there was a lack of bad driving pattern, or other physical indicia of impairment. 10 The Trial Judge identified the test for reasonable and probable grounds as a two-part test, requiring both honest subjective belief, and objectively reasonable grounds for the belief. He held that the Constable had a subjective belief that the Appellant’s ability to drive was impaired, and further that the grounds crossed the threshold to objectively justify the Constable’s belief. However, the Trial Judge noted that these grounds were “[n]ot the strongest set of grounds for the demand that I have ever seen” (Transcript of Trial Judgment at p. 29). 11 The Trial Judge accepted the Certificate of Analysis into evidence and convicted the Appellant on the charge of driving while his blood alcohol level exceeded 80 milligrams of alcohol per 100 millilitres of blood. The Judge entered an acquittal on the charge of impaired driving. 12 Given the finding of the Trial Judge that there was no violation of s. 8 of the Charter, the issue of whether the certificate should be excluded under s. 24(2) of the Charter did not arise.

IV. Grounds of Appeal 13 The Appellant appealed his conviction on the charge of operating a motor vehicle while his blood alcohol level exceeded 80 milligrams of alcohol per 100 R. v. Waters C.L. Kenny J. 157

millilitres of blood, in violation of s. 253(1)(b) of the Criminal Code, on the following grounds: a) the Trial Judge erred in finding that the Constable had reasonable and probable grounds to make a breath demand, and that therefore there was no violation of s. 8 of the Charter; and b) the Trial Judge erred in stating that even if there had been a violation of s. 8 of the Charter, the evidence ought not to have been excluded under s. 24(2) of the Charter.

V. Legislation 14 The relevant sections of the Criminal Code are ss. 253, 254(2), and 254(3). Section 253 defines the offences of impaired driving, and driving over .08. Sec- tion 254(2) provides the police officer with screening tools to establish grounds for a breath demand. Section 254(3) lays out the required grounds that an officer must have to make the breath demand. The sections are laid out below: Operation while impaired 253.(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or (b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. Testing for presence of alcohol or a drug 254.(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol: (a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and (b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made 158 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. Samples of breath or blood 254.(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (a) to provide, as soon as practicable, (i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or ..... (b) if necessary, to accompany the peace officer for that purpose.

VI. Analysis A. Standard of Review 15 The Supreme Court of Canada recently discussed the standard of review for the question of reasonable and probable grounds. It is a question of law whether a trial judge correctly applied the standard of reasonable and probable grounds to the facts as found at trial. Therefore, the existence of reasonable and probable grounds is reviewable on a standard of correctness. In R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 (S.C.C.) at para. 20, Chief Justice McLachlin and Char- ron J., writing for the Court, explained: While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law. As with any issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem at first blush as though the issue of reasonable and probable grounds is a question of fact. However, this Court has repeatedly affirmed that the application of a legal standard to the facts of the case is a question of law. 16 In contrast, the factual findings and inferences made by a trial judge can only be disturbed if they are unreasonable, or on overriding and palpable error: R. v. Wolbeck, 2010 ABCA 65 (Alta. C.A.) at para. 9. 17 The standard of review for s. 24(2) of the Charter requires deference to a trial judge’s finding as to whether the admission of the evidence would bring the administration of justice into disrepute. However, the finding can be overturned if there was an error of principle, or the decision was unreasonable. Smith J. R. v. Waters C.L. Kenny J. 159

recently summarized the law in R. v. Vandenberg, 2010 ABQB 261 (Alta. Q.B.) at paras. 12-13: [12] The decision of a trial judge to admit or exclude evidence under s. 24(2) of the Charter is a question of law as he or she has a duty to exclude the evidence where he or she concludes that its admission would bring the administration of justice into disrepute. However, as indicated in R. v. Buhay, 2003 SCC 30 at para. 42, [2003] 1 S.C.R. 631, there are discretionary elements in a s. 24(2) analysis. A trial judge’s decision as to whether the admission of evidence would bring the administration of justice into disrepute is not to be interfered with on appeal unless it has been exercised in an unreasonable manner: R. v. Collins, [1987] 1 S.C.R. 265 at 283. [13] In Housen v. Nikolaisen, [2002] 2 S.C.R. 235 at para. 37, 2002 SCC 33, the court indicated that the appreciation of whether the admission of evidence would bring the administration of justice into disrepute is a question that is “subject to a standard of palpable and overriding error unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error of law.” As expressed by the court in R. v. Law, 2002 SCC 10 at para. 32,[2002] 1 S.C.R. 277, “[w]hile the decision to exclude must be a reasonable one, a reviewing court will not inter- fere with a trial judge’s conclusions on s. 24(2) absent an ‘apparent error as to the applicable principles or rules of law’ or an ‘unreasonable finding’...” 18 The Alberta Court of Appeal has affirmed the approach to be taken to s. 24(2) on appeal in R. v. Cornell, 2009 ABCA 147, 454 A.R. 362 (Alta. C.A.) aff’d 2010 SCC 31 (S.C.C.) at para. 3 [citing to ABCA]: The decision to exclude evidence under s. 24(2) of the Charter is subject to deference and will not be interfered with absent some error as to the applicable principles or rules of law, or absent a finding that is unreasonable: R. v. Buhay, [2003] 1 S.C.R.631, 2003 SCC 30 at para. 45; R. v. Duguay, [1989] 1 S.C.R. 93 at 98; R. v. Stillman, [1997] 1 S.C.R. 607 at para. 68; R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10 at para. 32; R. v. N.O., 2009 ABCA 75 at para. 18.

B. Section 8 of the Charter 1. Law 19 The Supreme Court decision in Shepherd provides a recent summary and clarification of the law regarding reasonable and probable grounds for a breath demand. Shepherd confirmed that a breath demand is a warrantless search and seizure that prima facie violates s. 8 of the Charter. The onus is on the Crown to 160 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

show that the search was reasonable and not in violation of the Charter. In Shep- herd, McLachlin C.J.C. and Charron J., for the Court, stated at paras. 13, 15-16: The central issue on this appeal is whether the officer had reasonable and probable grounds to demand breath samples from Mr. Shepherd. Section 254(3) of the Criminal Code [citation omitted] requires that an officer have reasonable grounds to believe that the suspect has committed an offence under s 253 of the Code (impaired driving or over 80) before making a breathalyzer demand. As this Court explained in R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 51: “The requirement in s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under s. 8 of the Cana- dian Charter of Rights and Freedoms.” ..... As this Court explained in Collins, where evidence is obtained as a result of a warrantless search or seizure, the onus is on the Crown to show that the search or seizure was reasonable. A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable (Collins, at p. 278). No issue is taken with the manner in which the search was carried out or the reasonableness of the breath demand provisions in the Code. Rather, the only question is whether the arresting officer complied with the statutory preconditions for a valid breath demand...... The onus is on the Crown to prove that the officer had reasonable and probable grounds to make the demand because the Crown seeks to rely on breath samples obtained as a result of a warrantless search. It would also be imprac- tical to place the burden on the Accused because evidence of the presence or absence of reasonable and probable grounds is within the ‘peculiar knowledge’ of the Crown (R. v. Bartle, [1994] 3 S.C.R. 173, at p. 210). 20 As in Shepherd, the issue in the present case was limited to whether the Constable had the conditions required by the Criminal Code to make a breath demand. 21 The Court in Shepherd confirmed the nature of the test under s. 254(3) as a two-part test, with both a subjective and objective component. The test required that “the officer must have an honest belief that the suspect committed an offence under s. 253 of the Criminal Code, and there must be reasonable grounds for this belief”: at para. 17. In other words, the objective arm of the test was that “a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest”: R. v. Storrey, [1990] 1 S.C.R. 241 (S.C.C.) at p. 250. 22 The case law provides guidance about how the court is to evaluate the objective existence of reasonable and probable grounds for an offence under s. 253. In Shepherd, the Court emphasized that the evidence of impairment need not rise to the level of a prima facie case: at para. 23; see also Storrey at 251. In addition, R. v. Waters C.L. Kenny J. 161

in R. v. McClelland (1995), 165 A.R. 332 (Alta. C.A.) at para. 19, the Alberta Court of Appeal affirmed that the evidence must be looked at as a whole: In R. v. Huddle (1989), 102 A.R. 144, 21 M.V.R. (2d) 150 (C.A.), the court held at p. 152: In our view, it is an error in law to test individual pieces of evidence which are offered to establish the existence of reasonable and probable grounds....the question is whether the total of the evidence offered provided reasonable and proper grounds, on an objective standard. We say that because no issue of subjective belief arises here. Further, the Court must limit its consideration to the facts which were within the police officer’s knowledge when he formed his belief that the person committed the s. 253 offence. Observations made by the police officer after he or she formed the requisite belief are irrelevant. As well, the accuracy of the facts which formed the basis of the belief is not in issue, but “the police officer’s understanding of the facts must be a reasonable one”: McClelland at para 21. 23 The provincial court cases provided by Counsel for the defense cited a useful summary of the test for the objective existence of reasonable and probable grounds. Those cases are R. v. Appleby, 2009 ABPC 301 (Alta. Prov. Ct.), R. v. Mejia (2009), 2009 ABPC 310, 14 Alta. L.R. (5th) 368 (Alta. Prov. Ct.) and R. v. Haut, 2009 ABPC 337 (Alta. Prov. Ct.) add’l reasons at 2010 ABPC 2 (Alta. Prov. Ct.). The summary was provided by Judge Allen in R. v. Cuthbertson, 2003 ABPC 83, 26 Alta. L.R. (4th) 161 (Alta. Prov. Ct.) at para. 46: The grounds must be examined from the viewpoint of the knowledge of the peace officer at the time the demand was made. Subsequent actions are of no consequence, nor are the observations of others. The Court examining the reasonable and probable grounds must focus upon the knowledge and understanding of the peace officer who made the demand. That officer’s understanding may be based upon hearsay and even a misperception of the actual evidence. The Court does not look over the shoulder of the officer to see whether or not the circumstances understood by the officer are true. The Court must weigh the circumstances as understood by the officer to determine their reasonableness and probability. It is an error in law to test individual pieces of evidence; rather, the evidence as a whole must be considered in determining whether the facts support a standard of objective reasonableness. Clearly, the determination is dependent upon the understanding of the officer in the individual circumstances under litigation. Reference to other reported cases is helpful in understanding what may constitute reasonable and probable grounds.

2. Application to the Facts 24 The question to answer here is whether the facts show objectively that the Constable had reasonable and probable grounds to believe that the Appellant 162 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

was committing or had committed in the last three hours either of the offences in s. 253, that is (a) impaired driving or (b) driving over .08. 25 The Trial Judge reviewed whether there were reasonable and probable grounds for the Constable’s belief under the impaired driving branch of this test, and not the over .08 branch. No doubt, this is so because the Constable testified that he had formed the belief that the Appellant’s “ability to operate a motor vehicle had been impaired from the alcohol he had consumed.” He did not testify to nor was he asked about any belief that the Appellant’s blood alcohol level was over .08 prior to making the breath demand. It is notable, however, that while the Appellant was initially charged with both offences, an acquittal was entered for the impaired driving offence, and a conviction for the over .08 offence. 26 The case law suggests that an officer may form his or her belief that reasonable grounds to demand a breath sample exist under the impaired driving branch of the test, even though the accused is ultimately convicted only under the driving over .08 branch. For example, see R. v. Niedergesaess, 2008 ABQB 460, 443 A.R. 109 (Alta. Q.B.) aff’d 2008 ABCA 343, 440 A.R. 373 (Alta. C.A. [In Chambers]). In that case, Constable Barnes formed “the opinion that the driver’s ability to drive a motor vehicle was impaired by alcohol” and demanded a breath sample: at para. 11. The reasonable grounds for the demand stated were clearly under the impaired driving branch, but the Accused only appealed a conviction for driving over .08. Strekaf J., the Summary Appeal Court Judge, held that the officer had the grounds to make the breath demand, and therefore the breath sample was admissible evidence for the over .08 conviction. The Appeal Court confirmed the judgment. While the case did not explicitly discuss whether a belief based on the impaired driving branch of the test could provide the grounds for a breath demand, where the evidence obtained was then used to convict under the over .08 branch of the test, it was implicit in the fact pattern of the case. Such an approach seems sensible: if the officer is found to have had reasonable grounds for the breath demand under either the impaired driving branch, s. 253(1)(a), or the over .08 branch, s.253(1)(b), then the breath sample evidence clears the hurdle of s. 8 of the Charter. Assuming there are no other reasons for excluding it, that evidence then becomes available towards a conviction under either or both ss. 253(1)(a) and (b). 27 In the present case, the Trial Judge correctly stated the test for reasonable and probable grounds under s. 254(3). The Trial Judge noted that the test had two parts, requiring both the Constable’s subjective belief, and objective grounds on which to sustain that belief. As well, the Judge stated that the grounds did not have to rise to a level where “the court could convict on them”, but had to be such that “a reasonable officer under the circumstances would be able to conclude that the offence of impaired driving...had taken place” (Tran- script of Trial Judgment at p. 28). The Trial Judge cited R. v. Andrews (1996), 178 A.R. 182 (Alta. C.A.) for the proposition that impaired driving consists of R. v. Waters C.L. Kenny J. 163

impairment of any degree of the ability to drive. The Judge then examined the indicia of impairment, correctly taking into account only those indicia available to the Constable before he made the breath demand. However, while the Trial Judge cited Andrews, the finding that there were reasonable and probable grounds does not appear to apply the principle noted in that case, that impairment under s. 253(1)(a) must mean impairment of the ability to drive. 28 The indicia of impairment available here simply did not give the Constable reasonable grounds to believe the Appellant’s ability to drive was impaired. Clearly, there was alcohol consumption by the Appellant. He admitted to drinking 2 or 3 beers that evening. As well, the Constable smelled alcohol, and noted that the Appellant had glossy eyes. However, the Constable testified that he only smelled the alcohol on the Appellant’s breath when he was “really close to the driver” (Transcript of Trial at p. 6). The Trial Judge also noted the Constable observed the Appellant fumbling with documents, but at a level that could be consistent either with nervousness or impairment. These facts go no further than to establish consumption. The amount admitted to was not large, and the odour, glossy eyes and fumbling are not enough to show a level of consumption which would have led to a reasonable belief that the ability to drive was impaired. 29 The other indicia found by the Trial Judge, when coupled with the indicia of alcohol consumption, also do not rise to the level needed for a reasonable belief that the ability to drive was impaired by the consumption. The Constable observed the Appellant driving with no headlights through a well-lit intersection. The Trial Judge found that this indicia was a mark of inattention. Similarly, the Trial Judge found the expired documents to be a mark of inattention, though a very small contributor to the picture. No other problems with the Appellant’s driving were noted. He responded quickly to the Constable’s questions and de- mands, so that only two minutes passed from the time the Constable had first noted the Appellant’s car, to when he had pulled the Appellant over, run a check on his licence, obtained his documents, discussed the expiry date on the documents and smelled alcohol, forming the opinion regarding alcohol impairment. Taken together the indicia are simply too minimal to show anything beyond that the Appellant had consumed some alcohol, and that he had driven inattentively regarding his headlights. These indicia do not rise to the level required for a breath demand. 30 It is important to note that Parliament has provided police officers with tools to use when the indicia do not rise to the level required to make a breath demand under s. 254(3). In particular, s. 254(2) of the Criminal Code allows the police officer to request that the driver perform physical coordination tests, or blow into an approved screening device. The results of these roadside tests may allow the officer to develop the grounds to make a formal breath demand under s. 254(3). The Constable should have made use of these additional tools. It is important to note the different grounds required under the two sections. Section 254(2) only requires the police officer to have “reasonable grounds to suspect 164 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

that a person has alcohol or a drug in their body” and has operated or had care or control of a vehicle within the past three hours. In contrast, s. 254(3) requires the officer to have “reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253”, either impaired driving or driving with a blood alcohol level over .08. Allowing a breath demand where the indicia did not go beyond grounds for a reasonable belief that a person operating a motor vehicle had alcohol in his body would erase the distinction between ss. 254(2) and 254(3) of the Criminal Code. 31 The parties have provided a number of cases. Although fact-specific, the cases suggest that there must be a reason to believe that the alcohol consumption has impaired the ability to drive. 32 In Shepherd, the indicia of impairment were considerably stronger than in the present case. There, the driver had failed to stop at a stop sign, and was speeding 20-25 km over the limit. When the driver had heard the police siren, he had sped up and changed lanes a few times, driving 3 kilometres before pulling over. Upon approaching the driver, the officer had noted red eyes, slow, deliberate movement and speech, a fatigued, lethargic appearance, and the smell of alcohol on the driver’s breath. While the Court found reasonable and probable grounds, the case is distinguishable both because of the greater physical indicia of impairment, and the observations regarding the driving pattern. 33 In R. v. Dwernychuk (1992), 135 A.R. 31 (Alta. C.A.), the police officer initially pulled the appellant over for a noisy muffler. The appellant tried to evade capture by running into a house. The police officer gave chase and eventually caught the appellant. Once he had the appellant in the back of the police car, the constable noted that the appellant smelled of alcohol and was swaying in the seat. The Court of Appeal held that these grounds were reasonable and probable grounds for a breath demand. This case is distinguishable from the case before the court. A sway shows a more significant impairment which is more likely to mean that the ability to drive is impaired, whereas here there is no indicia that would provide grounds for the reasonable belief that the ability to drive was impaired by alcohol. 34 In Appleby, the trial judge found that the Crown had not discharged its onus to show reasonable and probable grounds for the breath demand. In that case, the police officer had observed that the accused had slow, monotone speech, a dry mouth, red nose and cheeks, slurred speech, very slow movements, a slight side-to-side sway, and a moderate smell of alcohol. A heavy smell of alcohol also emanated from the vehicle of the accused. In response to the officer’s query whether the accused had been drinking recently, he replied “lots”: at para. 6. Appleby has stronger indicia of impairment than the case before the court. Yet, the trial judge found the test was not met because the total indicia, given the short time frame and the lack of an irregular driving pattern, did not show reasonable grounds for the belief that the ability to drive was impaired by alcohol. R. v. Waters C.L. Kenny J. 165

35 In Mejia, the accused displayed an erratic driving pattern, with the wheels of his car drifting over the centre line and a failure to make signalled turns. As well, the accused’s breath and his vehicle smelled of alcohol, and the accused admitted to drinking. He took an unusually long time to locate his driver’s licence, and seemed to fumble with his wallet. In that case also, the trial judge found the Crown had failed to discharge its onus to show reasonable and probable grounds. Again, the indicia in Mejia are higher than those in the present case. 36 In Haut, the accused drove aggressively, and parked on the wrong side of the street, attracting the attention of the police. The trial judge found that, after stopping the accused, the police officer observed bloodshot eyes, and a stumble. While the constable also noted that the accused spoke slowly, the trial judge expressed reservations regarding this evidence. The trial judge found the indicia did not rise to the level of reasonable and probable grounds to believe the ability to drive was impaired by alcohol. The existence of an aggressive driving pattern coupled with the presence of alcohol in the body were not enough. 37 In the present case, the Constable knew that the Appellant had driven without headlights at night, and that he had consumed alcohol. These indicia do not provide grounds to reasonably believe that the Appellant’s ability to drive had been impaired by the alcohol consumption. Accordingly, I find that the Consta- ble lacked objective grounds for his subjective belief that the Appellant’s ability to drive was impaired by alcohol. Therefore, the breath demand was made in violation of s. 8 of the Charter.

C. Section 24(2) of the Charter 1. Law 38 Section 24(2) places the onus on the applicant who wishes to see the evidence excluded. 39 The analysis for s. 24(2) has changed in recent years. R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.) provides the new framework for a s. 24(2) analysis. The analysis put forward in Grant at para. 71 was: [A] court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the Accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the cir- 166 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

cumstances, admission of the evidence would bring the administration of justice into disrepute. 40 The majority in Grant provided further guidance on how the trial judge is to approach the test. The effect of admitting or excluding the evidence on the administration of justice must be looked at from a long-term perspective, concerned with the integrity of the justice system and society’s confidence in it. The ‘administration of justice’ is defined broadly, and includes upholding the Char- ter and the rule of law generally. The focus of the court should be on avoiding damage to the administration of justice, not on punishment of the police, deterrence, or compensation. The Charter breach has damaged the repute of the administration of justice, and the court’s decision to exclude or include the evidence should seek to avoid further damage. The approach is objective, and asks “whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute”: Grant at para. 68; see paras. 68-70. R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 (S.C.C.) recently confirmed and applied the principles in Grant. 41 Under the first line of inquiry, the court must decide how seriously the state has breached the Charter. The more severe the violation, the more strongly it weighs towards exclusion of the evidence, to avoid giving the impression that the justice system condones the state action. Extenuating circumstances may make the breach less serious, for example if there was a need to preserve evidence. Charter violations range in seriousness. On the end of the spectrum leading to exclusion of the evidence is police conduct that is deliberate, a major departure from the standard, where the police knew or should have known of the breach, or where the accused’s Charter rights were disregarded; conversely, the court does not have a strong need to disassociate itself if the police acted in good faith, with the breach being a technical breach with little impact or arising out of an understandable mistake. However, “ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith”: Grant at para. 75. See Grant at paras. 72-73, 75, 108; Harrison at para. 22. 42 Under the second line of inquiry, the court must assess how the breach actually impacted the accused’s Charter-protected rights. The court first identifies the interests engaged by the infringed right, and then assesses the impact on those interests. Again, the more severe the impact, the more strongly this branch weighs towards exclusion of the evidence. An unreasonable search and seizure of bodily evidence engages interests of privacy, dignity, and bodily integrity. The degree of impact varies widely, from minor and fleeting to profound. From the analysis in Grant, it appears that the boundaries of Charter protection for the interest being examined can help the court to determine the degree of intrusion. For example, the search is more intrusive if it occurs in a place where there is a high privacy interest, or if it is performed in a demeaning manner. The amount R. v. Waters C.L. Kenny J. 167

and type of contact with the body also matters. The forced giving of a blood sample is more intrusive than fingerprinting, for example: see Grant, paras. 76- 77, 109. 43 The third line of inquiry examines how the evidence affects the trial’s ability to get at the truth. Connected to this concern is the accused’s right to receive a fair trial. This line of inquiry militates for the acceptance of reliable evidence, and the exclusion of unreliable evidence. The effect is even stronger when the prosecution’s case turns on the evidence in question. It would damage the repute of the justice system both to convict the accused when the key evidence against him or her is unreliable, and to acquit the accused when the key evidence is reliable. Bodily samples are generally highly reliable evidence, so this line of inquiry will in most cases favour their admission into evidence: see Grant at paras. 81, 83, 110. 44 Breath sample evidence is no longer excluded automatically under the new test. The Court in Grant noted that breath sample evidence is collected in a relatively non-intrusive manner, so the violation of privacy, bodily integrity and dignity is on the less severe side of the spectrum: at para. 111. However, in Appleby at para. 24 the trial judge noted: I am satisfied that the Supreme Court of Canada in Grant, supra, is not suggesting that breath samples are always admissible under the three part analysis; for if that were the case then why undertake the Courts’ analysis in Grant, supra in any cases involving breath samples. The proposition is not that all breath samples obtained with a warrantless search shall be admissible into evidence but rather, again, that the court must assess and apply a balance to all three lines of inquiry. 45 The three provincial court cases provided by defence counsel, cited earlier, provide examples of the application of s. 24(2) of the Charter post-Grant to breath sample evidence. 46 In Appleby, the trial judge excluded the breath sample evidence. Under the first stage of the inquiry, the judge held that making a breath sample demand where there were no grounds was a severe and deliberate breach of the Charter. The police officer had other tools available to him but he chose not to use these tools, showing a “careless disregard for the Accused’s protected Charter rights”: at para. 20. The officer did so knowing there would be a significant impact on the accused. Under the second stage of the inquiry, the trial judge noted that the breath sample was relatively non-intrusive. However, the deliberate breach of Charter rights, ignoring the investigative tools available, was enough to put the administration of justice into disrepute. The third branch of the inquiry focused on the effect of the breath sample evidence on the truth-seeking function, and weighed in favour of its inclusion. Nevertheless, the balance of the three lines of inquiry weighed towards excluding the breath sample evidence. 168 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

47 In Mejia, the trial judge declined to exclude the breath sample evidence. Under the first line of the inquiry, the trial judge held that the breach did not rise to the level where the court needed to disassociate itself from the conduct. The officer stopped the accused because his driver’s side window was tinted, a legitimate traffic violation. He smelled a moderate to strong odour of alcohol and so his drunk driving investigation was also legitimate. He took steps to comply with the Charter and attempted to gather the evidence required to make a proper breath demand. The trial judge found the officer had a genuine subjective belief that he had reasonable grounds for the breath demand. Under the second line of inquiry, a significant impact on the accused’s liberty interest arose from his 1 handcuffing, and detention for 2 /2 hours to provide the samples. The sample collection itself was relatively non-intrusive. Under the third line of inquiry, the breath sample provided reliable evidence, favouring admission. Balancing the factors, the trial judge admitted the evidence. 48 In Haut, the trial judge found that the behaviour of the police, as well as the impact of the breach on the accused, justified excluding the evidence. In particular, the judge found that the officer did not understand the proper basis of a breath sample demand. In particular, the officer stated that he arrested the accused because he “was driving under the influence of alcohol,” not because his ability to drive was impaired: at para. 47 of the add’l reasons. Unfamiliarity with the standard showed a reckless disregard for Charter rights. Under the second line of inquiry, the trial judge found that the accused’s s.7 and s.8 Charter interests, liberty and privacy, were impacted. A groundless arrest and detention had a serious impact on the accused, even though the officer acted professionally and courteously after arresting him. Under the third line of inquiry, the trial judge found the evidence to be highly reliable. However, on balancing the three lines of inquiry, the trial judge excluded the evidence. 49 After reviewing the balancing of the factors arising from the s. 24(2) test performed by the Supreme Court in Grant and Harrison, the trial judge in Haut at para. 79 emphasized the importance of the finding related to police conduct: A number of comments can be made as a result of this jurisprudence. A finding related to the first line of inquiry is very important. If the trial judge finds that the Charter infringing behaviour is not serious this will tend to support the admission of the impugned evidence. Conversely, a finding that the Charter infring[ment] is serious will tend to strongly support the exclusion of that evidence. A serious infringement of an individual’s Charter guarantee may sometimes lead to the conclusion that the Charter infringing behaviour had a profound rather than a trivial effect. This is especially so where there is a s. 8 Charter breach and the basis for the search or seizure was groundless. In such cases, the impact on the individual would likely be profound because the individual’s right to dignity, privacy and the right to be left alone has been removed without justification. A finding that the impact upon the Ac- cused is significant or serious, on its own, may not warrant exclusion. In a prosecution for a drinking [and] driving offence, a breath sample is [] relia- R. v. Waters C.L. Kenny J. 169

ble evidence and vital to the prosecution case so that its admission would promote the public interest in having the case adjudicated on its merits.

2. Application to the Facts 50 Given the Trial Judge’s finding that no violation of s. 8 of the Charter occurred, s. 24(2) of the Charter was not spoken to at trial. The Trial Judge commented that “it would have been such a near miss” that the Certificate of Analy- sis should not be excluded under s. 24(2) even if a Charter violation had been found (Transcript of Trial Judgment at p. 29). The Trial Judge did not provide any further reasons on this issue. 51 The Trial Judge’s statement appears to relate to the first branch of the Grant inquiry. Articulated differently, I understand that statement as holding that the police violation was not serious because the officer was close to having reasonable and probable grounds for the breath demand. I find that the Trial Judge committed an error of law by looking only at the level of departure from the reasonable and probable grounds standard. The Judge did not apply the key test under the first branch of the Grant analysis: the extent to which the admission of the evidence would bring the administration of justice into disrepute by giving the impression that the court condones state action that violates the rule of law. Next, the Trial Judge committed a clear error in law by failing to consider the second and third branches of inquiry mandated in Grant. There is no discussion in the reasons of the impact on the Charter-protected interests of the accused, or the impact on society’s interest in an adjudication on the merits. Further, as the Trial Judge did not consider two out of the three branches, he clearly did not balance the branches as required in Grant. These errors require a fresh application of the Grant analysis. 52 On the first branch of the Grant inquiry, I find that the Charter-infringing state conduct was serious. The Constable here should not have proceeded to a breath demand on the weak indicia available to him. Until the Constable smelled alcohol, he had no reason to believe the Appellant driving without headlights and with expired documents resulted from impairment, as opposed to simple inattentiveness. Further, the indicia regarding the amount of alcohol consumed suggested modest consumption. This should have indicated to the Constable that the level of alcohol consumption may not be such that it would impair the ability to drive. It is a serious matter to take breath samples in breach of the Charter when Parliament has provided an alternate course in the form of screening tools. The Constable knew the breath sample demand would have a significant impact on the Appellant, and should have taken the steps necessary to ensure he was not in breach of the Appellant’s Charter rights. The Court should dissociate itself from such conduct. 53 Under the second branch of the test, the impact on the Appellant was a significant one. While the taking of breath samples is non-intrusive, the Appellant 1 was arrested and detained for 1 /2 hours, and forced to provide incriminating 170 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

evidence. The arrest and detention where groundless, given the finding regarding s. 8. This is a significant violation. 54 The third branch suggests that evidence should be admitted. Breath sample evidence is reliable, and it was key to the prosecution in this case. 55 The decisions of the Supreme Court in Grant and Harrison provide useful guidance in how the factors arising from the three lines of inquiry should be balanced. The significant impact on the Charter-protected interests of the Ap- pellant is not, on its own, enough to lead me to exclude this reliable evidence. However, when viewed in conjunction with the carelessness regarding Charter values shown by the Constable, I find the court should exclude the evidence. From a long-term perspective, the repute of the administration of justice suffers when the court does not disassociate itself from such conduct. It sends the message to the public that both Charter protections and the additional tools available in the Criminal Code to help the police officer establish reasonable grounds for a breath demand before impacting the citizen’s liberty are of little practical significance.

VII. Conclusion 56 I find that the Constable made the breath demand to the Appellant without reasonable grounds as required by s. 254(3) of the Criminal Code. Accordingly, the breath samples were taken in violation of s. 8 of the Charter. Further, I find that the Certificate of Analysis should be excluded under s. 24(2) of the Charter. Given that the excluded evidence was key to the Crown’s case under the charge of driving while having a blood alcohol level in excess of eighty milligrams of alcohol in one hundred millilitres of blood, I enter an acquittal on that charge. Appeal allowed; accused acquitted. R. v. Ingram 171

[Indexed as: R. v. Ingram] Her Majesty the Queen and Richard Michael Ingram Saskatchewan Provincial Court P.S. Kolenick Prov. J. Judgment: October 13, 2010 Docket: None given, 2010 SKPC 120 Bryce Pashovitz for Crown Davin Burlingham for Accused Criminal law –––– Offences — Dangerous driving — Evidence –––– Of dangerous driving conduct — Accused charged with dangerous driving — Complainants’ vehicle was involved in minor accident and complainants apparently attempted to leave scene without stopping — According to Crown witnesses accused followed complainants’ vehicle in accused’s truck at significant rate of speed and struck it on perhaps six or seven occasions, on one occasion causing female complainant to be ejected from vehicle — Accused gave evidence at trial and described following vehicle at reasonable speed in order to obtain licence plate number, and further stated that there were only three minor contacts between accused’s truck and complainants’ vehicle — Accused convicted — Conviction for dangerous driving requires proof of marked departure from objective standard of prudent driving conduct — Neutral witnesses were generally supportive of complainants’ accounts of events than that of accused, which lacked credibility having regard to neutral witnesses’ accounts of multiplicity of impacts between vehicles and speeds attained — In totality of circumstances, test for dangerous driving was made out in present case. Cases considered by P.S. Kolenick Prov. J.: R. v. Beatty (2008), 76 B.C.L.R. (4th) 201, 371 N.R. 119, [2008] 1 S.C.R. 49, 420 W.A.C. 7, 251 B.C.A.C. 7, 54 C.R. (6th) 1, 57 M.V.R. (5th) 1, 2008 CarswellBC 307, 2008 CarswellBC 308, 2008 SCC 5, 228 C.C.C. (3d) 225, 289 D.L.R. (4th) 577, [2008] 5 W.W.R. 1, 179 C.R.R. (2d) 247, [2008] A.C.S. No. 5, [2008] S.C.J. No. 5 (S.C.C.) — referred to R. v. Getson (May 4, 1995), Doc. Vancouver Registry 81315, [1995] B.C.J. No. 1101 (B.C. Prov. Ct.) — referred to R. v. Hundal (1993), 79 C.C.C. (3d) 97, 43 M.V.R. (2d) 169, 149 N.R. 189, 14 C.R.R. (2d) 19, 22 B.C.A.C. 241, 38 W.A.C. 241, [1993] 1 S.C.R. 867, 19 C.R. (4th) 169, 1993 CarswellBC 489, 1993 CarswellBC 1255, EYB 1993-67097, [1993] S.C.J. No. 29 (S.C.C.) — referred to R. v. Kewaquado (2001), 2001 CarswellOnt 5909, [2001] O.J. No. 6063 (Ont. S.C.J.) — referred to R. v. Lubjenka (2005), 17 M.V.R. (5th) 174, [2005] O.T.C. 230, 2005 CarswellOnt 1142, [2005] O.J. No. 1152 (Ont. S.C.J.) — referred to R. v. Matchee (2001), 2001 SKQB 473, 2001 CarswellSask 674, 212 Sask. R. 132, 19 M.V.R. (4th) 84, [2001] S.J. No. 646 (Sask. Q.B.) — referred to 172 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

R. v. Matheos (2008), 67 M.V.R. (5th) 128, 444 A.R. 39, 2008 ABQB 166, 2008 CarswellAlta 326, [2008] A.J. No. 263 (Alta. Q.B.) — followed R. v. McKenzie (1996), 1996 CarswellSask 182, 106 C.C.C. (3d) 1, 141 Sask. R. 221, 114 W.A.C. 221, (sub nom. R. v. P.N.M.) [1996] S.J. No. 197 (Sask. C.A.) — followed R. v. Rose (1992), 20 B.C.A.C. 7, 35 W.A.C. 7, 1992 CarswellBC 1148, [1992] B.C.J. No. 2792 (B.C. C.A.) — followed R. v. Sloboda (2007), 214 Man. R. (2d) 173, 395 W.A.C. 173, 49 M.V.R. (5th) 39, 2007 MBCA 49, 2007 CarswellMan 186, [2007] M.J. No. 163 (Man. C.A.) — referred to R. v. Takhar (2003), 2003 BCSC 794, 2003 CarswellBC 1224, 42 M.V.R. (4th) 109, [2003] B.C.J. No. 1177 (B.C. S.C.) — referred to Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 249 — referred to s. 249(1)(a) — considered

TRIAL of accused on charge of dangerous driving.

P.S. Kolenick Prov. J.: Background 1 The accused is charged that he did, on or about August 17, 2009, at Saska- toon, operate a motor vehicle on a street, road, highway or other public place in a manner that is dangerous to the public, contrary to s. 249(1)(a) of the Criminal Code. 2 The Crown alleged that the complainant had attempted to flee from the scene after having been involved in a minor motor vehicle accident without stopping, as required by law. The accused was aware of the actions of the complainant in that regard and followed him in his own motor vehicle, in hot pursuit, ramming from behind on repeated occasions before the complainant’s motor vehicle was put out of commission by the final collision. In the meantime, the complainant had not been able to escape the alleged aggression by the accused in his motor vehicle. 3 Of course the onus is on the Crown to prove beyond a reasonable doubt with credible evidence, the constituent elements of the offence and there is no burden on the accused whatsoever. However, he had testified on his own behalf and confirmed he had followed the complainant’s motor vehicle after the hit-and-run only to confirm its driver’s license plate number. In the course of their encounter he had not rammed the complainant’s motor vehicle on repeated occasions as alleged. As well, the contact between the motor vehicles which had occurred was minor, and caused by the complainant’s erratic driving. R. v. Ingram P.S. Kolenick Prov. J. 173

Review of the Crown Evidence Rory Bear - Male Complainant 4 The complainant advised in his evidence that, he had been operating a motor vehicle which was registered to his brother, with his spouse, Joanne Bear, seated in the passenger seat. It was in the afternoon and daylight. As they were sitting at the traffic light at Avenue H and 19th Street, their vehicle was struck from behind by a white vehicle, allegedly being operated by the accused. As Mr. Bear drove off from that first contact, the other vehicle followed behind in close pursuit, and Mr. Bear could not escape from it. The vehicle followed the one he was operating and the complainant was unsuccessful in his attempts to get away and put some distance between them. Indeed, the vehicle ran into the rear end of his vehicle on numerous occasions, with his efforts to get away and put some distance between them, to no avail. Aggressive driving by the other driver allegedly caused rear-end collisions at various locations, as the complainant attempted to escape, including another contact at Avenue H and 19th Street and others at Ave- nue D and 18th Street, while heading down an alley between Avenue C and Ave- nue D, and in another alley between Avenue D and Avenue E. At 19th Street and Avenue D, their motor vehicle was struck with such force that his spouse was ejected from the passenger door where she was seated. The chase continued, however, without her and the motor vehicle getting struck again from behind at Avenue D and 18th Street. Shortly thereafter, the complainant’s motor vehicle became inoperable after being spun around by the last strike. 5 He was unable in his testimony to identify the other motor vehicle, except that it was a white truck. Also, he could not identify the driver. That was so despite they had spoken to each other after the last alleged collision when they were both at the scene of the disabled motor vehicle which the complainant had been driving. The other driver had said “stop or I’ll shoot you”. Mr. Bear said “go away” and ran away. The other driver had also said “I hope you got insurance”. 6 Emergency services had been called, so he waited for the police to arrive and was transported to the hospital. He was only there for two or three hours, the main injury being a bruise to his head, which was painful for roughly one month. He received a four month sentence for leaving the scene of the accident, and is responsible to Saskatchewan Government Insurance (SGI) for the damage to his brother’s motor vehicle. It was damaged beyond repair. 7 In cross-examination he confirmed from his driver’s abstract that he had been legally suspended at the time of this alleged matter. As well, he agreed he had caused a motor vehicle accident and departed from the scene because his driving suspension was in effect at the time. 8 Further, he denied that, in the course of events, he had run into a pole because of negligent driving, but rather it was because of being struck by the white truck. He agreed also that it was dangerous for him to drive across a sidewalk at 174 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

one point in time to get away from the white truck, and also to avoid being arrested. He confirmed as well that his wife had been ejected, and had not opened the door and got out of the motor vehicle. Further, he had not simply lost control in the course of attempting to make evasive manoeuvres. 9 He agreed also in cross-examination that his memory of some of the specific incidents with the white truck was not very good because there were so many contacts between the two motor vehicles.

Joanne Bear - Female Complainant 10 Ms. Bear confirmed that she had been a passenger in the motor vehicle being operated by her spouse. At Avenue H and 19th Street they were bumped from behind by a big white truck with roll bars, which caused them to hit another vehicle that was in front of theirs, sitting at the light. She could not identify the driver of the truck which had struck them. Regardless, when her spouse tried to park in order to discuss the mishap, the driver of the white truck ran into their vehicle very hard and would not let them stop. They headed off, hoping to zig zag and get away, but that did not work. She was unsure of the exact route they had taken for that purpose. On one occasion, when their vehicle had been struck from behind at Avenue D and 19th Street, the force of the impact caused her to be ejected from the passenger seat. There had been other instances when they had been rear ended by the white truck, and finally those efforts resulted in her being ejected. 11 After she had been ejected, she rolled out of the way of the white truck, as it continued to chase the vehicle being operated by her spouse. She had not attended at the hospital even though she had suffered some scratches. There had been a warrant for her arrest, and she did not wish to be taken into custody. 12 In cross-examination she confirmed her knowledge that her spouse did not have a valid driver’s license at the time. Her warrant was for failing to report to her probation officer. However, she disputed any suggestion that she had gotten out of the car door on her own, without having been ejected from the force of the rear end collision they had allegedly suffered. She had run from the scene out of concern for being picked up on the warrant.

Randy Strueby 13 At approximately 5:00 p.m., Mr. Strueby was driving his motor vehicle on Spadina Crescent West, returning from the landfill. Suddenly he came upon a collision at Avenue D and Spadina Crescent, from which he had to slam on his brakes so as not to run into it himself. It had involved a white truck and a black car. Both vehicles drove off on Avenue D, which was the last place he had seen them. In cross-examination Mr. Strueby agreed that he was not sure who had hit who and that it happened in a matter of seconds. As well, if there had been any R. v. Ingram P.S. Kolenick Prov. J. 175

contact between those motor vehicles before they reached the intersection, he would not have seen it.

Ramona Redlich 14 Ms. Redlich was out in the yard at her residence at 406 Avenue D South. Her first contact with the accused was as the driver of a white truck, which he was driving very fast down an alley between Avenue D and Avenue C. She heard a crash and ran out to her front yard. She observed a woman get up off the ground, and run to the corner of 19th Street and Avenue D, from the scene of the accident. Immediately thereafter she saw a black car proceeding down Avenue D with the truck following. As the vehicles approached the intersection of Ave- nue D and 18th Street, the white truck sped up and crashed into the black car. He had rammed it so hard that it appeared to have spun around and hit the sidewalk. The vehicles proceeded down a back alley nearby and she did not see them again at that time. However, she heard the sound of another vehicle crash and walked to the sight of that latest collision, at Spadina Crescent and Avenue D. 15 She purported to positively identify the accused as the operator of the white truck. She had seen him speaking to the police, and also him picking up his license plate off the ground at the scene of a collision near Avenue D and 18th Street. It was the same person who had initially sped down the alley when she first saw the white truck being operated in the back alley near her residence. 16 In cross-examination Ms. Redlich confirmed that she had observed the one collision which had occurred near the intersection of Avenue D and 18th Street from a distance of roughly four houses away. The car had spun around after impact from the white truck after it had rammed the back of the car. As well, while there had not been any pedestrians or vehicle traffic in the immediate vicinity, it was nice weather, and generally, people were outside enjoying it.

Dwayne Quiring 17 Mr. Quiring was at work, where he was employed at Village Auto Sales, 429 - 20th Street West. He was inside and heard a bang so went out to investigate. He observed a truck and a car in an alley between Avenue D and Avenue E, sitting against a pole. The car backed up somewhat and it was pushed by the truck causing the car to sideswipe the pole. Both vehicles then departed through a nearby vacant lot, and he did not see either motor vehicle again. In cross-examination, Mr. Quiring clarified that the car had been put into drive and sideswiped the pole without any input from the truck. As well, there had not been any traffic or pedestrians at the material time.

Darren Anderson 18 Darren Anderson confirmed that at roughly 5:00 p.m., he was helping a friend on a roof on 20th Street, between Avenue D and Avenue E. He heard tires 176 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

squealing and gravel flying. Thereafter, he saw a smaller car and a half-ton coming down the alley. His vision was obstructed for part of what happened, but heard the impact of metal on metal and a pole shook. Thereafter, they both exited the area by driving through a vacant lot. While in the lot, the truck ran into the back of the car. The impact made the car jump a bit and then they took off again. It was the last he saw of either motor vehicle.

Cecilia Elizabeth 19 Ms. Elizabeth was in her veranda at 308 Spadina Crescent West when she heard the sound of speeding cars. She also saw a blue car and white half-ton travelling so close that she thought one must be towing the other. Both vehicles stopped on Avenue D. A male got out and ran away. Another person exited from the half-ton and chased after that male on foot. She could not hear any voices.

Dale Isaac 20 Mr. Isaac testified that he was at home with his spouse, Ramona Redlich, where they live at 406 Avenue D South. He was in the backyard, looking at a new truck which he had just purchased. Suddenly he was aware of a black car and a white truck driving very fast down a back alley which runs adjacent to their property. He purported to identify the accused in court as the operator of the white truck. Shortly thereafter he heard a collision which had occurred at Avenue D and 19th Street. He saw the car had spun around and stopped. Both vehicles appeared to have been damaged. Thereafter, the car drove south on Av- enue D, with the truck following behind. Apparently there was a second motor vehicle accident at Avenue D and 18th Street, which Mr. Isaac did not see, but observed a puff of smoke. Again both vehicles were just sitting at the scene until the car drove off with the truck in pursuit once more, heading toward Spadina Crescent. He lost sight of them again, because of a curve in the road. When he next saw them on Spadina Crescent, both vehicles were dented and crashed into each other. The accused was speaking to the police and the operator of the car was nowhere in sight. 21 In cross-examination Mr. Isaac estimated the speed of the car to have been very fast, fifty-five kilometres per hour plus. As well he had not actually seen either of the first two collisions, but observed the aftermath. He was also aware of a female aboriginal woman near the scene talking, but did not know to whom she had been speaking.

Peter Prosofsky 22 Mr. Prosofsky testified that he resides at 401 Avenue E South. At roughly 4:30 or 5:00 p.m., he had seen that a neighbour who lives near Avenue D and 19th Street was on a ladder at his residence. As he was going over to visit the neighbour, a black car pulled up to the intersection of Avenue D and 19th Street. R. v. Ingram P.S. Kolenick Prov. J. 177

A truck hit it from behind with so much force that it went right through the intersection. In the process it almost struck another motor vehicle in the immediate vicinity of the intersection. Everything happened very fast. In that regard, he was also aware of a female nearby the car at the time of the collision but had not seen her get out of it. In cross-examination, Mr. Prosofsky clarified that he had seen the female get out of the car before the motor vehicle accident.

Evidence for the Defence The Accused 23 The accused was the only witness for the defence. In his testimony he confirmed that he had been on his way home from work, at roughly 4:30 or 4:45 p.m. He was alone and operating his white half-ton truck. He was stopped at a red light, at the intersection of Avenue H and 19th Street facing south. He was fourth in line at the light, with a white car, a black car and a grey car in single file ahead of his motor vehicle. 24 When the light turned green the black car, being operated by the complainant, accelerated into the white car which was ahead of it at the traffic light. The vehicle which had been struck pulled over and stopped after the intersection had been cleared, but the vehicle which the complainant had been driving and had run into the other vehicle travelled away from the scene of the accident. 25 The accused was concerned that the complainant was attempting to escape from the scene without providing proper identification to the other driver, so he followed in his vehicle, trying to confirm the driver’s license plate number. He had not been close enough at the scene to be able to note it. He had a cell phone in his pocket, but could not stop to call the police, because that would have allowed the complainant to escape his pursuit. 26 As the complainant made his way from the scene, he appeared to be disin- clined to allow the accused to get close enough in order to note his driver’s license number, nor to pull over and stop. Therefore he followed behind on Ave- nue F South and further to 18th Street, and the accused continued to keep up the same pace. At one point he had turned at Avenue D South and headed north to 18th Street and Avenue D South with the accused still in pursuit, but still he had not been able to get close enough in order to get the license plate number. They had also ended up in a back alley, just before 20th Street, heading west, but was unable to observe the driver’s license plate number. In the course of events, they went down another alley between Avenue D and Avenue E. At the last second the complainant had changed courses and ran into a power pole because he could not make that short turn. That manouevre by the complainant allowed the accused to pull up behind the complainant’s vehicle while he was stopped against the pole but he was still unable to get in position so he could read the license plate on the complainant’s motor vehicle. At that time as well, the complainant backed into the accused’s motor vehicle where he was sitting, which 178 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

caused some damage to both motor vehicles. The complainant proceeded to drive down an alley and turn left on Avenue D between 19th Street and 20th Street, with the accused following behind, because he still had not been able to note the license plate number. 27 At 19th Street and Avenue D, the motor vehicle being operated by the accused was roughly half way through the intersection with the accused following behind. Suddenly, a black object that looked like a duffel bag was tossed from the complainant’s motor vehicle from the front passenger door and the complainant braked in the middle of the intersection. The accused was able to dodge around the object which had been tossed in the path of his motor vehicle but could not stop because of the complainant’s unexpected braking. As a result he ran into the rear of that motor vehicle at a speed between twenty and thirty kilometres per hour. 28 In any event, the complainant drove off again, heading south on Avenue D. The accused followed, however, the radiator in his truck was smoking from the last impact so he did not expect he would be able to drive much further. The complainant proceeded another one and one-half blocks towards Spadina Cres- cent however, the complainant had over-steered, spun 180 degrees, and was heading back towards the accused’s motor vehicle. Therefore, the accused backed up and blocked the street where the complainant was attempting to get by and there was one last light impact as the complainant’s motor vehicle was attempting to pass at that spot. 29 As a result of that manoeuvre, the accused was able to get the complainant’s motor vehicle stopped, and the complainant got out and ran off. The accused chased him on foot, and caught him. He had not used any force other than holding him by the shirt until the police arrived. There were no blows and the accused denied he was angry with the complainant despite the damage because, as he put it, it was just a truck. 30 The accused had never been able to get the license plate number of the complainant’s motor vehicle. As well he had not been able to get out his cell phone and call the police because he could not be distracted while the pursuit was ongoing. In that regard as well, it was a dry, sunny day. He was able to keep a lookout for other motor vehicles and pedestrians and did not see any. 31 He claimed also that there had only been three times when there had been any contact between the two motor vehicles. The first was when the complainant had run into a power pole in an alley between Avenue D and Avenue E, and then backed into the accused’s motor vehicle as the complainant was making his escape. The second was at the intersection of Avenue D and 19th Street when the complainant tossed the foreign object onto the street and slammed on the brakes part way through the intersection suddenly and without warning so that he could not stop in time despite his best efforts. The third was near the intersection of Avenue D and Spadina Crescent when the complainant had spun around 180 R. v. Ingram P.S. Kolenick Prov. J. 179

degrees, and headed back in the direction of the accused’s motor vehicle. He had parked to block the complainant from passing and there was some light contact between the two motor vehicles as the complainant attempted to get by the blockade which the accused had created. 32 In cross-examination the accused reiterated there had only been the three vehicle contacts as described, not six or seven collisions. As well, he had previous experience himself when someone had left the scene of an accident leaving him having to pay the deductible, so wanted to help out on this occasion. He denied feeling any anger against the complainant. 33 He insisted as well that it had been the complainant who had backed into him, after striking the power pole and drove off. As well, subsequently at Ave- nue D and 19th Street, a black foreign object had been tossed out, which the accused had to drive around. He denied it was a woman waving her arms after being ejected from the complainant’s motor vehicle. Thereafter, it was beyond the accused’s control that he ran into the rear of the complainant’s motor vehicle, and it had only been a bump of twenty or thirty kilometres per hour. 34 The accused disputed also that there had been any nature of a motor vehicle collision whatsoever at Avenue D and Spadina Crescent, but rather, just some minor damage at another location nearby as the accused positioned his motor vehicle as a blockade to the complainant’s motor vehicle as he tried to get past. 35 Finally, the accused indicated that he was not upset with the actions of the complainant, because he had managed to stop him. Generally he had not been required to speed in order to catch the complainant and much of the time had been driving at a rate of twenty to thirty kilometres per hour.

Analysis Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt the constituent elements of the offence? 36 The Crown has filed the judgment in R. v. Matchee, 2001 SKQB 473 (Sask. Q.B.), (Ball J.), and the defence these decisions: R. v. Hundal, [1993] 1 S.C.R. 867 (S.C.C.); R. v. Beatty, [2008] 1 S.C.R. 49 (S.C.C.); R. v. Takhar, [2003] B.C.J. No. 1177 (B.C. S.C.), (Morrison J.); R. v. Kewaquado, [2001] O.J. No. 6063 (Ont. S.C.J.), (Marchand J.); R. v. Lubjenka, [2005] O.J. No. 1152 (Ont. S.C.J.), (Pardu J.); R. v. Sloboda, [2007] M.J. No. 163 (Man. C.A.); R. v. Getson, [1995] B.C.J. No. 1101 (B.C. Prov. Ct.), (Baird Ellan J.). 37 The Court very much appreciates receiving all of this material from the parties. Not surprisingly, they do tend to be a product of their particular facts in each case. I note as well the general statement of principles contained in R. v. 180 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

Matheos (2008), 67 M.V.R. (5th) 128 (Alta. Q.B.) (Yamauchi J.), commencing at para. 5 on proof of mens rea in the context of the circumstances therein: 5. The parties based their arguments on R. v. Beatty, [2008] S.C.J. No. 5 (S.C.C.), a very recent case of the Supreme Court of Canada. As with any criminal case, the Crown must establish the actus reus, or act of the accused, which in this case is, in the words of the Criminal Code, driving in a manner “that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.” Mr. Matheos, through his counsel conceded that Mr. Matheos was driving in such a manner. 6. The Crown must also prove, beyond a reasonable doubt, the mens rea, or criminal intent. Of course, the law cannot go on a metaphysi- cal excursion into the mind of the accused in most criminal cases. Beatty, along with the earlier Supreme Court of Canada decision in R. v. Hundal, [1993] 1 S.C.R. 867 (S.C.C.), give us some guidance, in this regard. Beatty, at para. 43, said: ... the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Hundal and Beatty refer to this as a “modified objective test.” 7. Both counsel conceded that there is not a clear line between civil negligence, which would not attract criminal liability, and a deliberate act of dangerous driving which would. This case, along with most others, falls somewhere in the middle. Beatty recognized this when it said, at para. 7: A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability for penal negligence. This distinction between a mere departure and a marked departure from the norm is a question of degree. 38 Further, s. 249(1)(a) of the Criminal Code states as follows: 249. (1) Every one commits an offence who operates (a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place; R. v. Ingram P.S. Kolenick Prov. J. 181

39 As noted, in general the burden is on the Crown to prove the constituent elements of the offence beyond a reasonable doubt with credible evidence, and the accused is presumed innocent until proven guilty. In assessing credibility, the Court is guided by the principles restated in R. v. McKenzie (1996), 141 Sask. R. 221 (Sask. C.A.) (from R. v. Rose (1992), 20 B.C.A.C. 7 (B.C. C.A.)), para. 4: First, if you believe the accused, obviously you must acquit; Secondly, if after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. 40 The determination of credibility does not involve the Court opting for one version of events or the other. Rather, the Crown must prove that its evidence is credible, and there is no onus on the accused whatsoever in that respect. Even if the Court prefers the evidence of the Crown, it must still consider whether the evidence for the defence raises a reasonable doubt. Therefore, credibility of the material witnesses needs to be considered, in that context. 41 The onus is on the Crown to establish with credible evidence both the actus reus and mens rea of the offence. In that regard, whatever else may have happened in his encounter with the complainants, the accused denied that he had committed dangerous driving as contemplated in the Criminal Code. Therefore, both the actus reus and the mens rea remain in issue. At the time he was aware that the complainant had failed to stop his motor vehicle after a minor traffic mishap, and followed that motor vehicle in order to identify the plate number. He was alone and could not stop to call police on his cell phone because the complainant would have escaped his pursuit. 42 He denied that he had been driving in an aggressive manner as he attempted to get close enough behind to confirm the license plate number and had not repeatedly rammed into the back of the complainant’s motor vehicle as alleged. On one occasion, the complainant had backed into the accused’s motor vehicle after hitting a power pole before he drove off. Thereafter, on Avenue D and 19th Street, the complainant had suddenly braked halfway through the intersection, and tossed out a duffel bag. That erratic driving by the complainant caused the accused to strike the rear end of the complainant’s motor vehicle as he was engaged in successfully dodging the duffel bag. Shortly after that, the complainant had brushed by with light contact between the motor vehicles where the accused had positioned his motor vehicle to block the complainant from passing by and the complainant was thereby stopped. Regardless, he denied accelerating into 182 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

the back end of the complainant’s motor vehicle on repeated occasions, as claimed by the complainants. 43 Conversely, the male complainant testified that the motor vehicle which he had been operating was struck numerous times from behind by the accused’s motor vehicle and they could not escape to safety. On one of those strikes, the force was such that the female complainant was ejected from the passenger seat where she had been sitting. The female complainant confirmed it had occurred and that she was able to roll out of the way and not be struck by the accused’s motor vehicle. Prior to that occurring, there had been other instances when the accused’s motor vehicle had struck their motor vehicle from behind as alleged. 44 Regardless, the credibility of the male complainant was undermined to some extent by the fact that he had been a suspended driver at the time and sentenced to four months incarceration for leaving the scene of a motor vehicle accident. Likewise, the reliability of the female complainant’s testimony was affected somewhat by her admission that she had been the subject of an arrest warrant and departed from the scene before the police had arrived. 45 Despite those factors, however, the evidence from some of the independent witnesses tend to support the inference that the accused was driving with more aggression than he was prepared to admit, including the intentional rear-end collision into the back of the complainant’s motor vehicle. In that regard, Ramona Redlich testified to the effect that she had seen the accused’s motor vehicle speed up and smash into the complainant’s motor vehicle. The accused’s motor vehicle had rammed it so hard that it appeared the complainant’s motor vehicle had spun around and hit the sidewalk. Likewise, Peter Prosofsky indicated the accused’s vehicle had slammed into the complainant’s motor vehicle with such force that it shot through the intersection and almost struck other motor vehicles in the vicinity at the time. It was not apparent from them that the collision was caused by the complainant’s erratic braking as claimed by the accused. 46 In that latter regard, there was nothing in the evidence of either witness that the accused, as a careful and prudent driver, had been the victim of the complainant braking his motor vehicle without warning, catching the accused by surprise, and requiring evasive manouevres on his part, as the accused had suggested. Instead, the accused, with apparent intent, had driven into the rear end of the complainants’ motor vehicle in a dangerous manner, much the same as the complainants had complained he had done previously more than once, as matters unfolded. Indeed there is no credible suggestion that the accused had braked his motor vehicle whatsoever, before his motor vehicle ran into the rear end of the complainants’ motor vehicle. 47 The accused’s evidence also lacks credibility in his denial that there had been a collision at Avenue D and Spadina Crescent, despite that the evidence of Randy Strueby, Mona Redlich, and Dale Isaac, would suggest otherwise. Per- R. v. Ingram P.S. Kolenick Prov. J. 183

haps he is also confused in his recollection of other basic aspects of what allegedly occurred. 48 In general there is no particular reason to doubt the credibility of the observations made by those witnesses. As well, they tend to support a state of mind and course of conduct more consistent with the complainant’s description of events rather than that of the accused. That is so despite whatever misgivings the Court might have as to the credibility of both complainants’ testimony.

Conclusion 49 In light of the prior-mentioned testimony from some of the independent witnesses, the Court has concluded the evidence of the Crown taken as a whole is sufficient to prove beyond a reasonable doubt both the actus reus and the mens rea of the offence. To the extent there may be inconsistencies and discrepancies among the various witnesses, they are not material. They do not detract from the reliability of the two complainants’ descriptions of the accused’s motor vehicle ramming into their motor vehicle on repeated occasions as they tried to escape. The force of those collisions was such that the female complainant was ejected from her seat by one of them, and ended up on the street. As noted there is a ring of truth to the testimony of both complainants, particularly when considered in the context of some of the confirmatory evidence of the accused using his motor vehicle to ram from behind as alleged by the complainants’ evidence. 50 Likewise the accused’s denial of any wrongdoing has no air of reality to it, either as to his manner of driving, or his state of mind which led to it. He was apparently more incensed and frustrated by the actions of the complainant in leaving the scene than he was willing to concede in his testimony. He had ample opportunity to back off and call the police and chose not to proceed on that basis. Instead he opted to continue in that manner, causing terror to the complainants, and putting public safety at risk. He had operated his motor vehicle in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic at the time or might reasonably expected to be at that place, all of which is contemplated in s. 249 of the Criminal Code. Further, his state of mind at the material time is reflected by his driving misconduct, and he is guilty as charged. Accused convicted. 184 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

[Indexed as: R. v. Jimmy] Regina v. Cheryl Jimmy British Columbia Provincial Court J. Wood Prov. J. Heard: August 20, 2009; May 11, 2010 Judgment: October 12, 2010 Docket: Duncan 31321, 31376, 2010 BCPC 257 M. Joyce DeWitt-Van Oosten, Brad Tomlin, for Crown Ren´ee Miller, for Defendant Criminal law –––– Offences — Impaired driving/care or control — Sentencing — Curative treatment –––– Accused was charged with two counts of impaired driving — Accused pleaded guilty — Crown did not serve notice of intention to seek greater punishment even though accused had prior conviction in 2005 — Accused alleged she should be eligible for curative discharge under s. 255(5) of Criminal Code except that sentencing option was not available in British Columbia — Curative discharge was available where accused needed treatment for alcohol addiction and that ordering such would not be against interests of justice, but section required proclamation in each province — British Columbia had not proclaimed section — Accused brought application for declaration that non-proclamation of s. 255(5) was violation of her rights under ss. 7, 12 and 15 of Cana- dian Charter of Rights and Freedoms — Application dismissed — Non-proclamation of s. 255(5) was not violation of accused’s equality rights under s. 15 — Parliament clearly had power to enact s. 255(5) — Challenge had to be brought with respect to s. 212(2) of Criminal Law Amendment Act, 1985 which allowed curative section to be brought into force in each province on day chosen by that province — Non-proclamation of s. 255(5) did not draw distinction between accused and others based on personal characteristic — There was distinction between dispositions available to alcoholics convicted of drinking driving offences in British Columbia and those convicted in some other provinces but distinction was not based on personal characteristic — Province of residence is not personal characteristic — Discretion given to province to exercise or not power granted by Parliament is not subject to constitutional attack under s. 15 — Parliament has right to give power to provinces to choose special applications — Provinces have serious and considerable stake in effective enforcement of drinking driving legislation and often bear costs from those who commit those offences. Criminal law –––– Charter of Rights and Freedoms — Right to equality before and under law [s. 15] –––– Accused was charged with two counts of impaired driving — Ac- cused pleaded guilty — Crown did not serve notice of intention to seek greater punishment even though accused had prior conviction in 2005 — Accused alleged she should be eligible for curative discharge under s. 255(5) of Criminal Code except that sentencing option was not available in British Columbia — Curative discharge was available where accused needed treatment for alcohol addiction and that ordering such would not be against interests of justice but section required proclamation in each province — British R. v. Jimmy 185

Columbia had not proclaimed section — Accused brought application for declaration that non-proclamation of s. 255(5) was violation of her rights under ss. 7, 12 and 15 of Cana- dian Charter of Rights and Freedoms — Application dismissed — Non-proclamation of s. 255(5) was not violation of accused’s equality rights under s. 15 — Parliament clearly had power to enact s. 255(5) — Challenge had to be brought with respect to s. 212(2) of Criminal Law Amendment Act, 1985, which allowed curative section to be brought into force in each province on day chosen by that province — Non-proclamation of s. 255(5) did not draw distinction between accused and others based on personal characteristic — There was distinction between dispositions available to alcoholics convicted of drinking driving offences in British Columbia and those convicted in some other provinces, but distinction was not based on personal characteristic — Province of residence is not personal characteristic — Discretion given to province to exercise or not exercise power granted by Parliament is not subject to constitutional attack under s. 15 — Parliament has right to give power to provinces to choose special applications — Provinces have serious and considerable stake in effective enforcement of drinking driving legislation and often bear costs from those who commit those offences. Criminal law –––– Charter of Rights and Freedoms — Life, liberty and security of person [s. 7] — General principles –––– Accused was charged with two counts of impaired driving — Accused pleaded guilty — Crown did not serve notice of intention to seek greater punishment even though accused had prior conviction in 2005 — Accused alleged she should be eligible for curative discharge under s. 255(5) of Criminal Code except that sentencing option was not available in British Columbia — Curative discharge was available where accused needed treatment for alcohol addiction and that ordering such would not be against interests of justice but section required proclamation in each province — British Columbia had not proclaimed section — Accused brought application for declaration that non-proclamation of s. 255(5) was violation of her rights under ss. 7, 12 and 15 of Canadian Charter of Rights and Freedoms — Application dismissed — Access to curative discharges was not legal principle but was part of sentencing policy — There was no agreement that curative provisions should be universally available in Canada — Alleged principle was not identified with precision. Criminal law –––– Charter of Rights and Freedoms — Cruel and unusual punishment [s. 12] –––– Accused was charged with two counts of impaired driving — Accused pleaded guilty — Crown did not serve notice of intention to seek greater punishment even though accused had prior conviction in 2005 — Accused alleged she should be eligible for curative discharge under s. 255(5) of Criminal Code except that sentencing option was not available in British Columbia — Curative discharge was available where accused needed treatment for alcohol addiction and that ordering such would not be against interests of justice but section required proclamation in each province — British Columbia had not proclaimed section — Accused brought application for declaration that non-proclamation of s. 255(5) was violation of her rights under ss. 7, 12 and 15 of Cana- dian Charter of Rights and Freedoms — Application dismissed — Non-availability of curative provision was not cruel and usual punishment so as to violate s. 12 — Lack of sentencing option is not sentence — Availability of curative discharges in other provinces was not relevant on s. 12 analysis — Mandatory minimum sentences for impaired driving offences were not near threshold required for s. 12 challenge. 186 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

Cases considered by J. Wood Prov. J.: Andrews v. Law Society (British Columbia) (1986), 1986 CarswellBC 113, 23 C.R.R. 273, [1986] 4 W.W.R. 242, 2 B.C.L.R. (2d) 305, 27 D.L.R. (4th) 600, [1986] B.C.J. No. 338 (B.C. C.A.) — considered Bain v. R. (1983), 34 C.R. (3d) 263, 6 C.C.C. (3d) 369, 1983 CarswellQue 12 (Que. S.C.) — referred to Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General) (2004), 2004 SCC 4, 2004 CarswellOnt 252, 2004 CarswellOnt 253, 315 N.R. 201, 183 O.A.C. 1, 70 O.R. (3d) 94 (note), (sub nom. Canadian Foundation for Children v. Canada) [2004] 1 S.C.R. 76, 115 C.R.R. (2d) 88, 16 C.R. (6th) 203, 46 R.F.L. (5th) 1, 234 D.L.R. (4th) 257, 180 C.C.C. (3d) 353, [2004] S.C.J. No. 6, REJB 2004- 53164 (S.C.C.) — considered Law v. Canada (Minister of Employment & Immigration) (1999), 170 D.L.R. (4th) 1, 1999 CarswellNat 359, 1999 CarswellNat 360, (sub nom. Law v. Canada (Minister of Human Resources Development)) 60 C.R.R. (2d) 1, 236 N.R. 1, [1999] 1 S.C.R. 497, 43 C.C.E.L. (2d) 49, (sub nom. Law v. Minister of Human Resources Development) 1999 C.E.B. & P.G.R. 8350 (headnote only), [1999] S.C.J. No. 12 (S.C.C.) — followed Operation Dismantle Inc. v. R. (1985), [1985] 1 S.C.R. 441, 59 N.R. 1, 18 D.L.R. (4th) 481, 12 Admin. L.R. 16, 13 C.R.R. 287, 1985 CarswellNat 151, 1985 CarswellNat 664, [1985] S.C.J. No. 22 (S.C.C.) — referred to R. v. Alton (1989), 18 M.V.R. (2d) 186, 74 C.R. (3d) 124, 53 C.C.C. (3d) 252, 36 O.A.C. 252, 44 C.R.R. 1, 1989 CarswellOnt 115, [1989] O.J. No. 2418 (Ont. C.A.) — considered R. v. Beauregard (1986), 70 N.R. 1, (sub nom. Beauregard v. Canada) [1986] 2 S.C.R. 56, 30 D.L.R. (4th) 481, 26 C.R.R. 59, 1986 CarswellNat 1004, 1986 CarswellNat 737, [1986] S.C.J. No. 50, EYB 1986-67283 (S.C.C.) — referred to R. v. Cornell (1988), [1988] 1 S.C.R. 461, 83 N.R. 384, 27 O.A.C. 360, 40 C.C.C. (3d) 385, 63 C.R. (3d) 50, 33 C.R. 193, 4 M.V.R. (2d) 153, 1988 CarswellOnt 56, 1988 CarswellOnt 955, 33 C.R.R. 193, EYB 1988-67446 (S.C.C.) — considered R. v. Ferguson (2008), [2008] 5 W.W.R. 387, 290 D.L.R. (4th) 17, 371 N.R. 231, 87 Alta. L.R. (4th) 203, [2008] 1 S.C.R. 96, 2008 SCC 6, 418 W.A.C. 79, 2008 CarswellAlta 228, 2008 CarswellAlta 229, 54 C.R. (6th) 197, 228 C.C.C. (3d) 385, 425 A.R. 79, 168 C.R.R. (2d) 34, [2008] S.C.J. No. 6 (S.C.C.) — referred to R. v. Hamilton (1986), 44 M.V.R. 72, 57 O.R. (2d) 412, (sub nom. R. v. Hamilton, Asselin & McCullagh) 17 O.A.C. 241, 30 C.C.C. (3d) 257, 54 C.R. (3d) 193, 25 C.R.R. 94, 1986 CarswellOnt 137 (Ont. C.A.) — considered R. v. Hansen (1986), 48 M.V.R. 86, 1986 CarswellBC 444, 32 C.C.C. (3d) 199 (B.C. S.C.) — followed R. v. Hufsky (1988), 4 M.V.R. (2d) 170, [1988] 1 S.C.R. 621, 84 N.R. 365, 27 O.A.C. 103, 40 C.C.C. (3d) 398, 63 C.R. (3d) 14, 32 C.R.R. 193, 1988 CarswellOnt 54, 1988 CarswellOnt 956, EYB 1988-67448, [1988] S.C.J. No. 30 (S.C.C.) — referred to R. v. Killen (1985), 1985 CarswellNS 32, 37 M.V.R. 190, 49 C.R. (3d) 242, 70 N.S.R. (2d) 278, 166 A.P.R. 278, 24 C.C.C. (3d) 40, 25 D.L.R. (4th) 192 (N.S. C.A.) — considered R. v. Jimmy 187

R. v. Lefthand (1985), 1985 CarswellAlta 67, 37 Alta. L.R. (2d) 223, [1985] 4 W.W.R. 577, [1985] 3 C.N.L.R. 157, 19 C.C.C. (3d) 534, 19 D.L.R. (4th) 720, 66 A.R. 331 (Alta. C.A.) — referred to R. v. MacKay (1980), 1980 CarswellNat 213, [1980] 2 S.C.R. 370, [1980] 5 W.W.R. 385, 33 N.R. 1, 54 C.C.C. (2d) 129, 114 D.L.R. (3d) 393, 1980 CarswellNat 622 (S.C.C.) — considered R. v. Negridge (1980), 17 C.R. (3d) 14, 1980 CarswellOnt 46, 6 M.V.R. 255, 54 C.C.C. (2d) 304 (Ont. C.A.) — considered R. v. Nguyen (1990), 1990 CarswellMan 223, (sub nom. R. v. Hess) [1990] 6 W.W.R. 289, 1990 CarswellMan 437, 79 C.R. (3d) 332, (sub nom. R. v. Boyle) 46 O.A.C. 13, 59 C.C.C. (3d) 161, 50 C.R.R. 71, 119 N.R. 353, [1990] 2 S.C.R. 906, 73 Man. R. (2d) 1, 3 W.A.C. 1, EYB 1990-67205, [1990] S.C.J. No. 91 (S.C.C.) — referred to R. v. Pickup (2009), 91 M.V.R. (5th) 309, 2009 CarswellOnt 8001, [2009] O.J. No. 5427 (Ont. C.J.) — referred to R. v. Rahko (1983), 1983 CarswellBC 513, 29 M.V.R. 37 (B.C. C.A.) — referred to R. v. S. (S.) (1990), 77 C.R. (3d) 273, [1990] 2 S.C.R. 254, 110 N.R. 321, 41 O.A.C. 81, 49 C.R.R. 79, 57 C.C.C. (3d) 115, 1990 CarswellOnt 97, 1990 CarswellOnt 999, [1990] S.C.J. No. 66, EYB 1990-67551 (S.C.C.) — followed R. v. Tremblay (1985), 20 C.C.C. (3d) 454, 41 Sask. R. 49, (sub nom. Tremblay v. R.) 17 C.R.R. 309, 1985 CarswellSask 279 (Sask. Q.B.) — referred to R. v. Turpin (1989), 69 C.R. (3d) 97, [1989] 1 S.C.R. 1296, 96 N.R. 115, 34 O.A.C. 115, 48 C.C.C. (3d) 8, 39 C.R.R. 306, 1989 CarswellOnt 76, 1989 CarswellOnt 957, EYB 1989-67449, [1989] S.C.J. No. 47 (S.C.C.) — followed R. v. Van Vliet (1988), 45 C.C.C. (3d) 481, 1988 CarswellBC 475, 38 C.R.R. 133, 10 M.V.R. (2d) 190, [1988] B.C.J. No. 2480 (B.C. C.A.) — considered R. v. Wells (1989), 18 M.V.R. (2d) 151, 1989 CarswellBC 284, [1989] B.C.J. No. 1758 (B.C. Co. Ct.) — followed Rebic v. Collver (1985), 16 C.R.R. 115, 1985 CarswellBC 679, (sub nom. Rebic v. R) 20 C.C.C. (3d) 196 (B.C. S.C.) — referred to Use of French in Criminal Proceedings in the Courts of Saskatchewan, Re (1987), 1987 CarswellSask 363, [1987] 5 W.W.R. 577, 58 Sask. R. 161, 43 C.R.R. 189, 36 C.C.C. (3d) 353, 44 D.L.R. (4th) 16 (Sask. C.A.) — referred to Statutes considered: Canadian Bill of Rights, S.C. 1960, c. 44, Pt. I, reprinted R.S.C. 1985, App. III s. 1(b) — referred to Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 7 — considered s. 11(g) — referred to s. 12 — considered s. 15 — considered s. 32(1) — referred to Constitution Act, 1867, (U.K.), 30 & 31 Vict., c. 3, reprinted R.S.C. 1985, App. II, No. 5 Generally — referred to s. 91 ¶ 27 — referred to 188 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, reprinted R.S.C. 1985, App. II, No. 44 s. 52(1) — considered Constitutional Question Act, R.S.B.C. 1996, c. 68 Generally — referred to Criminal Code, R.S.C. 1970, c. C-34 s. 234(2) — referred to s. 234.1 [en. 1974-75-76, c. 93, s. 15] — referred to s. 234.1(1) [en. 1974-75-76, c. 93, s. 15] — referred to s. 239(5) — referred to Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 239(2) — considered s. 253(1)(a) — considered s. 255(1) — considered s. 255(5) — considered s. 429 — considered s. 430 — considered s. 727(1) — referred to Criminal Law Amendment Act, 1975, S.C. 1974-75-76, c. 93 s. 102(3) — referred to Criminal Law Amendment Act, 1985, S.C. 1985, c. 19 s. 212(2) — considered Narcotic Control Act, R.S.C. 1985, c. N-1 Generally — referred to Young Offenders Act, S.C. 1980-81-82-83, c. 110 Generally — referred to s. 4 — considered

APPLICATION by accused for declaration that non-proclamation of curative provision in s. 255(5) of Criminal Code was violation of her rights under ss. 7, 12 and 15 of Cana- dian Charter of Rights and Freedoms.

J. Wood Prov. J.: Introduction 1 On August 20, 2009, the applicant Cheryl Jimmy pleaded guilty to two separate charges of having the care or control of a motor vehicle whilst her ability to drive was impaired by alcohol or a drug, contrary to s. 253(1)(a) of the Criminal Code. The Crown proceeded summarily on both charges. Although Ms. Jimmy has a prior related conviction dating from September of 2005, the Crown did not serve notice of an intention to seek a greater punishment under s. 727(1). As a consequence, and subject to the appropriate range of penalties provided for in s. 255(1), it is open to the Court to sentence Ms. Jimmy as a first offender on each charge. R. v. Jimmy J. Wood Prov. J. 189

2 However, her counsel argues that based upon her history of alcohol addiction, Ms. Jimmy would be eligible to receive a curative discharge under s. 255(5) were it not for the fact that provision has not been proclaimed in force in British Columbia. Exhibit 1, a letter from Dr. Pachal of Duncan Mental Health & Addictions, Exhibit 2, a note from Dr. Robinson who is Ms. Jimmy’s family doctor and Exhibit 3, a Pre-Sentence Report, are offered in support of that submission. With that evidentiary basis in mind, counsel argues that Ms. Jimmy’s rights under ss. 7, 12 and 15 of the Charter are violated by reason of the fact that s. 255(5) is not available as a sentencing option in British Columbia. 3 I am satisfied that the evidence presented on her behalf is sufficient to warrant consideration whether a curative discharge should be granted to Ms. Jimmy in connection with both offences to which she has pleaded guilty if such a sentencing option were available. Accordingly it is necessary to rule on the Charter issues raised on her behalf. 4 These reasons relate only to whether Ms. Jimmy’s rights under ss. 7, 12 or 15 are violated by the non-proclamation of s. 255(5) of the Criminal Code in British Columbia. Prior to argument it was agreed between counsel that if I were to conclude that any of the alleged Charter violations were established, further argument with respect to the application of s. 1 would be scheduled. As I have concluded that Ms. Jimmy’s application must be dismissed it will not be necessary to deal either with that issue or with what remedy might have been appropriate in the circumstances.

The Legislative Background 5 A slightly modified forerunner to s. 255(5) was first introduced into the Criminal Code, as an alternative to the minimum penalties then provided for impaired driving, in the Criminal Law Amendment Act, 1975, S.C. 1974-75-76, c. 93, s. 14. By s. 102(3) of that Act, it was to come into force in any province only on a date to be fixed. The most recent amendment, by which the current s. 255(5) came into existence, was s. 36 of the Criminal Law Amendment Act, 1985, S.C. 1985, c.19. By s. 212(2) of that Act, s. 239(5) as it then was: ...shall come into force in any province on a day... to be fixed by proclamation with respect to that province. 6 Although there is no formal evidence of any constitutional protocol before me, it is a commonplace that a provision, such as that in s. 102(3) in the 1975 Act and s. 212(2) of the 1985 Act, reflects an agreement between the federal and provincial governments that any federal legislative enactment to which it applies will not be proclaimed in force in a province until that province so requests. No request for proclamation of what is now s. 255(5) has been made by British Columbia, nor indeed was any such request made with respect to that section’s predecessor. At the present time s. 255(5) has been proclaimed in force in New 190 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

Brunswick, Nova Scotia, Prince Edward Island, Manitoba, Saskatchewan, Al- berta, Yukon Territory and Northwest Territories.

A Review of Previous Court Decisions 7 A brief history of some prior cases which have considered, or are relevant to the analysis of, the provincially selective proclamation of s. 255(5) will help put some of the arguments advanced on Ms. Jimmy’s behalf in perspective. 8 Prior to the proclamation of s. 15 of the Charter, the argument that the non- proclamation of the forerunner to s. 255(5) in some provinces violated s. 1(b) of the Bill of Rights had been rejected by a number of appellate courts: R. v. Negridge (1980), 54 C.C.C. (2d) 304 (Ont. C.A.), R. v. Rahko (1983), 29 M.V.R. 37 (B.C. C.A.) and Bain v. R. (1983), 6 C.C.C. (3d) 369 (Que. S.C.). In Negridge the issue was the non-proclamation in Ontario of s. 234(2) of the Criminal Code, the precursor to the current s. 255(5). In giving reasons for the Court, dismissing that ground of appeal, Martin J.A. noted at pp. 307-8 of the report: Manifestly, the purpose of s. 234(2) is to enable the Court, in appropriate cases, to choose a disposition the aim of which is curative rather than punitive. It is equally evident that Parliament contemplated that the necessary treatment facilities and staff would be provided by the Provinces. It is therefore, entirely reasonable for Parliament to postpone the coming into force of s. 234(2) in a Province until that Province has made the necessary arrangements to provide appropriate facilities and staff for the treatment envisaged by its provisions. Legislation enacted by the Parliament of Canada does not infringe s. 1(b) of the Canadian Bill of Rights by reason of the fact that it does not apply to all areas of Canada, where Parliament in enacting the legislation was seeking to achieve a valid federal objective: see The Queen v. Burnshine [1975] 1 S.C.R. 693 at pp. 701 and 705. The onus is upon the appellant to show that in providing that the provisions of s. 234(2) shall come into force in a Province only where it is proclaimed in force in that Province, Parliament was not seeking to achieve a valid federal objective: see The Queen v. Burnshine, supra at pp. 707-8. 9 In R. v. Killen (1985), 24 C.C.C. (3d) 40 (N.S. C.A.), the Nova Scotia Court of Appeal considered the same issue in the context of a challenge under s. 15 of the Charter. Relying, inter alia, on the decision in Negridge the Court dismissed the appeal. In reaching that result, the Court referred to a number of post Char- ter cases in which the valid federal objective test had been applied to reject s. 15 challenges to federal legislation of uneven proclamation; see for example: R. v. Lefthand (1985), 19 C.C.C. (3d) 534 (Alta. C.A.), Rebic v. Collver (1985), 20 C.C.C. (3d) 196 (B.C. S.C.) and R. v. MacKay, [1980] 2 S.C.R. 370, 54 C.C.C. (2d) 129 (S.C.C.). The valid federal objective for the non-proclamation accepted R. v. Jimmy J. Wood Prov. J. 191

by the Court in Killen was the need for a transitional period to ensure sufficient adequate treatment facilities within the province. 10 The decision of the Supreme Court of Canada in MacKay has some importance with respect to the role played by the valid federal objective test in the evolving jurisprudence relating to provincially selective proclamation of federal statutes. The majority concluded that a member of the armed forces charged with an offence under the Narcotic Control Act was not denied equality before and under the law contrary to s. 1(b) of the Bill of Rights by reason of the fact that he was required to face trial in a standing court martial rather than in a court of competent criminal jurisdiction. In separate concurring reasons McIntyre J. referred extensively to the valid federal objective test. The following passages from his reasons, found at pp. 158-160 of the C.C.C. report contain what he viewed as the limits of that test: The question which must be resolved in each case is whether such inequality as may be created by legislation affecting a special class — here the mili- tary — is arbitrary, capricious, or unnecessary, or whether it is rationally based and acceptable as a variation from the general principle of universal application of law to meet special conditions and to attain a necessary and desirable social objective...... It would be difficult, if not impossible, to propound an all embracing test to determine what departures from the general principle of equal application of law would be acceptable to meet a desirable social purpose without offence to the Canadian Bill of Rights. I would be of the opinion, however, that as a minimum it would be necessary to inquire whether any inequality has been created for a valid federal constitutional objective, whether it has been created rationally in the sense that it is not arbitrary or capricious and not based on any ulterior motive or motives offensive to the provisions of the Canadian Bill of Rights, and whether it is a necessary departure from the general principle of universal application of the law for the attainment of some necessary and desirable social objective. Inequalities created for such purposes may well be acceptable under the Canadian Bill of Rights...... It must not, however, be forgotten that, since the principle of equality before the law is to be maintained, departures should be countenanced only where necessary for the attainment of desirable social objectives, and then only to the extent necessary in the circumstances to make possible the attainment of such objectives. (emphasis added) 11 The non-proclamation of what was by then s. 239(5) of the Criminal Code in Ontario was the subject of a challenge under s. 15 of the Charter in R. v. Hamil- ton (1986), 30 C.C.C. (3d) 257 (Ont. C.A.) (hereinafter “Hamilton”). In giving reasons for the Court, Dubin J.A., as he then was, distinguished Negridge as a pre-Charter decision. He also placed considerable reliance on the foregoing 192 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

passages from the reasons of McIntyre J. in MacKay which had the effect of significantly restricting the scope of the valid federal objective test by placing emphasis on the “general principle of equal application of the law. In particular, at p. 280 of the report he noted: Although, as has been observed, there may be circumstances which would permit a lack of uniform application of the criminal law, such circumstances are exceptional. I think it is clear that as a general rule it is fundamental that the criminal law treat all individuals in like circumstances equally. (emphasis added) 12 Before the Court in that case was an exchange of correspondence between the then Minister of Justice and the Ontario Attorney General, which occurred following passage of the 1985 Act but prior to its general proclamation, in which the latter made it clear that province did not want s. 239(5) proclaimed because he did not believe such a sentencing option was consistent with “effective impaired driving enforcement.” Relying on that correspondence, Dubin J.A. distinguished Killen on the ground that the valid federal objective relied upon by the Nova Scotia Court of Appeal had no bearing on Ontario’s refusal to request proclamation. 13 In the result, Dubin J.A. concluded that persons in Ontario, who were within the class of persons contemplated by s. 239(5), were denied equal protection and equal benefit of the law by reason of the failure of that section to be proclaimed in force in that province. Having further concluded that the denial of equal protection and equal benefit of the law could not be justified under s. 1, Dubin J.A. determined the appropriate remedy was to give effect to the section as though it had been proclaimed in effect. 14 Two months later the same s. 15 challenge to the non-proclamation of s. 239(5) was raised in this province in R. v. Hansen (1986), 32 C.C.C. (3d) 199 (B.C. S.C.). That was an appeal from a decision by the trial judge who had followed the line of reasoning in both Negridge and Killen and relied upon the valid federal objective stated in both decisions, namely that of providing all provinces with a transition period to ensure sufficient adequate treatment facilities were in place before proclamation of the section. In agreeing with the trial judge, Mackay J. noted at p. 203 of the report: I am in agreement with that decision but would go further. Not only was it reasonable for Parliament to postpone the coming into force of [s. 239(5)] until that province had made the necessary arrangements to provide facilities and staff — it was also reasonable to postpone the coming into force in the event (as has been the case) that some provinces choose not to participate in the program. R. v. Jimmy J. Wood Prov. J. 193

15 With characteristic clarity, Mackay J. disagreed with, and refused to follow, the decision in Hamilton: In view of my decision I will not need to venture into the question of remedy. I must say, however, that the approach taken by Dubin J.A. is novel, far reaching and, in my respectful view, quite inappropriate. The effect of the decision is that the court has proclaimed s. 239(5) into law in Ontario. It is one thing for courts, in appropriate circumstances, to strike down legislation which is inconsistent with the Charter — they are empowered by the Charter to do so. It is quite another thing for courts to usurp the powers of the Gover- nor-in-Council by proclaiming a law into force which the Governor-in-Coun- cil has declined to do. I quite agree that as a general rule the criminal law should treat all individuals in like circumstances equally. In my view, however, the uneven application of the curative treatment provision is one of those exceptional circumstances which is permitted. I agree as well that the “valid objective” to be considered is that of the Parliament of Canada — not that of any province which does not want proclamation of the curative treatment provision. I do not agree that one can safely assume that the only, or even the dominant, consideration for selective proclamation was to allow the provinces time to put in place the necessary facilities and staff. Parliament recognized that the program could only be effective with the full co-operation of a participating province. It is for the provinces to provide the facilities and necessary staff. It is for the provinces to provide the necessary programs. Parliament could not have required the provinces to provide the curative treatment or to pay for the treatment. We are dealing with an area that is primarily within the jurisdiction of the provinces public health. Section 239(5) is hardly at the core of Parliament’s criminal law power — it deals primarily with a public health problem, a matter of provincial jurisdiction. (p. 207) 16 Justice Mackay’s concern about usurping the powers of the Governor-in- Council were echoed two years later when the issue next arose at the appellate level in R. v. Van Vliet (1988), 45 C.C.C. (3d) 481 (B.C. C.A.). In that case the non-proclamation of s. 239(5) was challenged under s. 15 of the Charter in the course of an appeal from a sentence of 90 days imprisonment imposed following the appellant’s third drinking driving conviction. 17 In giving the majority reasons dismissing the appeal, Southin J.A. noted that the parties were at cross purposes insofar as what each viewed as subject to constitutional challenge. The appellant did not challenge either s. 212(2) of the 1985 Act, which effectively leaves to each province the discretion whether to request proclamation of the section, or the Governor-in-Council’s “failure” to proclaim the section. Instead, the argument advanced was that the decision of the Lt.-Gov.-in-Council not to request proclamation of s. 239(5) in this province was a violation the appellant’s right to “equal benefit of the law.” The relief sought was an order that the sentence be set aside and replaced with an order directing that the appellant be discharged from the offence upon the conditions 194 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

prescribed in a probation order pursuant to s. 239(5). The respondent, on the other had, viewed the appellant’s constitutional challenge as directed at s. 212(2) of the 1985 Act. 18 Faced with arguments which did not intersect, Southin J.A. framed what she described as the “very important the constitutional question” she felt ought to have been addressed by the parties in their respective arguments: Does Parliament have the right under the Constitution to bring into force in some Provinces of Canada and not in others, according to the wishes of the respective Provinces, an Act which in those Provinces in which it is in force empowers a lighter sentence for an offence than is applicable in the other Provinces, without thereby contravening the rights under s. 15 of the persons charged in those other Provinces with the offence to “equal protection and equal benefit of the law without discrimination”? (pp. 515-6) Having formulated this question, Southin J.A. declined to answer it on the ground there was an equally important question arising from the order sought by the appellant, namely: Is it open to the court under the Canadian Charter of Rights and Freedoms to grant the relief sought? (p. 518) 19 Focusing on the word “law” in s. 52(1) of the Charter, she noted that what was said to be inconsistent with s. 15 was not “law” but rather “lack of law.” In her view, to do what the Ontario Court of Appeal did in Hamilton was to repeal s. 212(2) of the 1985 Act, thus amending that statute and usurping the function of Parliament. She concluded that the Charter had not conferred such powers on the courts. Relying in part on Hamilton, Anderson J.A. in dissenting reasons would have granted the relief sought. 20 Although not concerned with the non-proclamation of s. 239(5) of the Crimi- nal Code, the decision of the Supreme Court of Canada in R. v. Turpin, [1989] 1 S.C.R. 1296 (S.C.C.), nonetheless signalled an important development in the unfolding jurisprudence. The appellants were residents of Ontario charged with murder. They sought to be tried by a judge alone. The issue was whether then ss. 429 and 430 of the Criminal Code, which together required that everyone in Canada charged with murder except those in Alberta be tried by a court com- posed of a judge and jury, violated their s. 15 rights to equal protection and equal benefit of the law. Their appeals were dismissed with Wilson J. giving reasons for the Court. 21 Although she found that the impugned provisions denied the appellants equality before the law, Wilson J. concluded that denial did not result in discrimination because all those accused of murder elsewhere in Canada than in Alberta could not reasonably be considered members of a “discrete and insular minority” suffering from social political and legal disadvantage in society. R. v. Jimmy J. Wood Prov. J. 195

22 In concluding her reasons, Wilson J. made the following observations at pp. 1333-4 of the report: I would not wish to suggest that a person’s province of residence or place of trial could not in some circumstances be a personal characteristic of the individual group capable of constituting a ground of discrimination. I simply say that it is not so here. Persons resident outside of Alberta and charged with s. 427 offences outside Alberta do not constitute a disadvantaged group in Ca- nadian society within the contemplation of s.15. In concluding that s.15 is not violated in this case, I realize that I am rejecting the proposition accepted in several Courts of Appeal in Canada that it is a fundamental principle under s. 15 of the Charter that the criminal law apply equally throughout the country: see R. v. Hamilton (1986), 30 C.C.C. (3d) (Ont. C.A.), leave to appeal refused April 9, 1987, [1987] 1 S.C.R. ix; R. v. Frohman (1987, 35 C.C.C. (3d) 163 (ont. C.A.); R. v. Hardiman (1987), 35 C.C.C. (3d) 226 (N.S.C.A.) at pp. 230-1; Reference re French Lan- guage Rights of Accused in Saskatchewan Criminal Proceedings, [1987] 5 W.W.R. 577 (Sask. C.A.), at pp. 613-14; R. v. S. (1988), 42 C.C.C. (3d) 41 (Ont. C.A.), leave to appleal granted September 30, 1988, [1988] 2 S.C.R. ix; R. v. Emile (1988), 42 C.C.C. (3d) 408 (N.W.T.C.A.), at pp.419-20. See also R. v. Tremblay (1985), 20 C.C.C. (3d) 454 (Sask. Q.B.; R v. Bailey (1985), 17 C.R. 1 (Y.T.S.C.); R. v. Punch (1985), 22 C.C.C. (3d) 289 (N.W.T.S.C.) I do not think, with all due respect to those who think otherwise, that this can be stated in terms of “fundamental principle” and in bald and absolute form for the purposes of s. 15. In my view, s. 15 mandates a case by case analysis as was undertaken by this Court in Andrews to determine 1) whether the distinction created by the impugned legislation results in a violation of one of the equality rights and, if so, 2) whether that distinction is discriminatory in its purpose or effect. In this particular case the appellants claim to be part of a disadvantaged group comprising all those charged with s. 427 offences being tried outside of the province of Alberta and it is this claim which I have rejected. This does not, in my view, preclude the possibility that some variations in criminal law and procedure among the different provinces could give rise to discrimination in the sense defined by a majority of this Court in Andrews. (emphasis added) 23 In R. v. Wells, [1989] B.C.J. No. 1758 (B.C. Co. Ct.), the “very important constitutional question”, formulated but not answered by Southin J.A. in Van Vliet, was addressed by Boyd Co. Ct. J., as she then was. At issue once again was whether the s. 15 Charter rights of an accused, who had been convicted of an offence under s. 253(1)(a) of the Criminal Code, were violated by the non- proclamation of what had by then finally become s. 255(5). Noting the rejection of the Ontario Court of Appeal decision in Hamilton by both Mackay J. in Han- sen and the Court of Appeal majority in Van Vliet, Boyd Co. Ct. J. agreed with the Crown’s concession that persons in British Columbia convicted of drinking 196 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

driving offences are subject to unequal treatment before the law. She also accepted the suggestion by Wilson J. in Turpin that place of residence could, in some circumstances, be a personal characteristic capable of constituting a ground of discrimination. However, she rejected the argument that persons in British Columbia and Ontario, convicted of drinking driving offences, could be considered members of a discrete and insular minority “vis-a-vis all those persons convicted of such offences in the balance of the country.” 24 Seven months after the decision of the Supreme Court of Canada in Turpin the Ontario Court of Appeal revisited the issue in R. v. Alton (1989), 53 C.C.C. (3d) 252 (Ont. C.A.). Before the court was a Crown appeal from a curative discharged granted by the trial judge who had followed the decision in Hamilton. After quoting the passages set out above from the reasons of Wilson J. in Tur- pin, Zuber J.A. for the Court concluded: This court is, of course, bound by the decisions of the Supreme Court of Canada. The law as determined in Hamilton must now be considered to be overruled by the decision in Turpin. In the case at hand, impaired drivers in Ontario can hardly be described as a discrete and insular minority whose interest s. 15 of the Charter was designed to protect. (p. 256) 25 The decision in Alton prevailed for the next twenty years until the matter was once again raised in Ontario, this time in the Court of Justice, in R. v. Pickup, [2009] O.J. No. 5427 (Ont. C.J.). Concluding that the class of persons discriminated against by reason of the unavailability of a curative discharge in Ontario was not “impaired drivers”, as described by Zuber J.A. in Alton, but rather individuals who suffer from the disease of alcoholism, S.D. Brown J. considered he was not bound by Alton and free to revisit the non-proclamation of s. 255(5) in the context of s. 15 of the Charter. 26 Focusing on alcoholism as the personal characteristic in issue, S. D. Brown J. found that s. 255(5) created “a formal distinction” between alcoholics in need of curative treatment in Ontario and those in provinces in which s. 255(5) has been proclaimed in force. Turning to the issue of discrimination, he expressed the following view: 37. Ontario withholds the benefit of curative treatment to its alcoholics (who are in need of curative treatment). This perpetuates the view that an alcoholic in Ontario is less capable or worthy of recognition or value as a human being or a member of Canadian society, equally deserving of respect and consideration After quoting at length from the 1985 correspondence between the Minister of Justice and the Attorney General of Ontario, as set out in the judgment of Dubin J.A. in Hamilton, he ruled: 41. This inaction by the Ontario Government over a period of 24 years, during which period Parliament has reaffirmed its belief in the curative treatment program for alcoholics as recently as July 2008 (by not repealing or modifying or restricting s. 255(5) in its revamp of the penalty provisions re- R. v. Jimmy J. Wood Prov. J. 197

garding drinking and driving offences in Bill C-2), in my view is a clear violation of section 15 of the Charter.

Discussion 27 With the exception of the decision in Pickup, a formidable body of authority, much of it from the courts of this province, stands in the way of Ms. Jimmy’s application, at least insofar as that application is based on the proposition that the non-proclamation of s. 255(5) of the Criminal Code has resulted in a violation of her equality rights under s. 15 of the Charter. However in a wide ranging submission counsel on her behalf raises a number of points which are said to render those decisions nugatory. In addition, counsel advances arguments founded on ss. 7 and 12 of the Charter, two sections that have not featured in the cases reviewed. 28 One issue that needs to be determined before considering the constitutional challenges raised by the applicant is the “matter” within the authority of either Parliament (or “the government of Canada”) or the Legislature (or “government”) of British Columbia to which those challenges are directed. There are three possibilities that could be considered under s. 32(1) of the Charter: 1) s.212(2) of the 1985 Act; 2) the refusal of the Governor-in-Council to proclaim s. 255(5) in British Columbia and 3) the refusal of the Lt. Gov.-in-Council of British Columbia to request proclamation by the Governor-in-Council. 29 Neither counsel addressed this issue in their submissions. That discussion was also avoided by the Ontario Court of Appeal in the Hamilton case, with the result Mackay J. in Hansen concluded the remedy ordered in that case had the effect of usurping the powers of the Governor-in-Council, while Southin J.A. in Van Vliet concluded it’s effect was “to amend the Act of 1985”, thus usurping the function of Parliament. 30 The actions or inaction of the executive branch of both governments clearly fall within the reach of s. 32(1) of the Charter; Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 441 (S.C.C.). However, both the refusal of the Lt. Gov.-in- Council of British Columbia to request proclamation of s. 255(5), and the refusal of the Governor-in-Council to proclaim it in the absence of such request, are the direct result of the agreement or protocol between the two levels of government, reflected in s. 212(2) of the 1985 Act, by which each province is given the option not to implement that section. 31 While the agreement underlying s. 212(2) of the 1985 Act may or may not be a “matter” to which s. 32(1) of the Charter has application, and I express no opinion on that issue, s. 212(2) clearly is. It is that section of the 1985 Act which has given rise to the selective proclamation of s. 255(5) of the Criminal Code. 32 As previously noted, in her judgment in Van Vliet, Southin J.A. posed what she considered to be the proper question raised by the s. 15 challenge advanced in that case, a question she then declined to answer. Her explanation for the 198 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

substance of the question not only confirms the central role of s. 212(2) in any Charter challenge based on the uneven proclamation of s. 255(5), but also defines the object of such a challenge: On this question, I make two comments: First, in thus posing the question and using the word “an offence”, I am assuming, and it is inherent in the question, that the legislation creating the offence is within the constitutional power of Parliament under s. 91 of the Constitution Act, 1867. Secondly, I have used the term “to bring into force” deliberately, as I cannot see what constitutional difference there can be between legislation in force in some parts of the country only because of a section like 212 and a statutory provision such as s.-s. 5 if it began with the words, “Except in British Columbia, Ontario and Quebec.” In other words, I see no difference between a substantive provision expressly limited to a certain geographical area and a substantive provision which is only in force in certain parts of the country by virtue of the proclamation power given by the legislation. (p.516) 33 Accordingly, since Parliament clearly had the constitutional power to enact s. 255(5) of the Criminal Code, I am of the view that for the purposes of the application brought on behalf of Ms. Jimmy, the ss. 7, 12 and 15 challenges must necessarily be brought with respect to s. 212(2) of the 1985 Act. 34 Before turning to the arguments advanced on Ms. Jimmy’s behalf in support of those constitutional challenges, it is appropriate to consider three submissions by counsel which do not appear to have an analytic anchor in any such argument, but which nonetheless are advanced in support of the general proposition that Ms. Jimmy’s constitutional rights are violated by the non-proclamation of s. 255(5) in this province. 35 First, there is the point found wandering throughout the applicant’s written and oral submissions, that leave to appeal the decision of the Ontario Court of Appeal in the Hamilton case was refused by the Supreme Court of Canada, thus giving rise to the inference that Court must have agreed with the judgment. It is not the practice of that Court to give reasons when leave is either granted or refused and no such inference can ever properly be drawn from a refusal to grant leave to appeal. In any event, as noted by Le Dain J. in R. v. Cornell, [1988] 1 S.C.R. 461 (S.C.C.), at p. 478, leave was not sought on the constitutional ground in the Hamilton case. 36 The next point is based on the language of s. 212(2) of the 1985 Act which, for convenience, I set out in full; (2) Subsections 238(2) and 239(2) of the Criminal Code, as enacted by section 36 of this Act shall come into force in any province on a day or days to be fixed by proclamation with respect to that province. (emphasis added) The proposition advanced is that, because of the use of the word “shall” which is said to be mandatory rather than permissive, Parliament did not intend to give R. v. Jimmy J. Wood Prov. J. 199

the provinces any discretion in respect of requesting the Governor-in-Council to proclaim s. 239(2). 37 This submission ignores the context in which the so-called “mandatory” term is found. The use of the word “shall” is common to virtually all proclamation provisions. Its use simply reflects the fact that once proclaimed, but not before, the legislation in question is in force. 38 In what is obviously an alternative submission, counsel argued that the only discretion given to the provinces in s. 212(2) was to delay the request for proclamation until such time as adequate resources were in place to implement curative treatment programs, a transitional purpose long ago achieved in this province. 39 No such purpose can be inferred either from the language of s. 212(2) of the 1985 Act or from the 1985 exchange of correspondence between the then Min- ister of Justice and Ontario Attorney General, which is set forth in the reasons of Dubin J.A. in Hamilton. The fact is there is no direct evidence before the court with respect to Parliament’s purpose in granting each province the discretion to determine when s.255(5) should be proclaimed in force within its boundaries and any suggested purpose, found in the authorities referred to above, amounts to no more than speculation with respect to one of many that Parliament might have intended.

The S. 12 Argument 40 The applicant argues “that the non availability of a curative discharge involves treatment or punishment by the state and that such treatment or punishment is cruel and unusual.” It is further submitted “that imprisonment in lieu of the availability of a curative discharge...is cruel and unusual punishment where valid alternatives to incarceration exist by order of Parliament elsewhere in Canada.” 41 There are a number of reasons why these arguments cannot succeed. Turning to the first proposition, to the extent it could be viewed as a s. 12 challenge, it lacks any focus as the real challenge appears to be directed at the lack of a sentencing option rather than at a sentence. As I have previously noted, it is my view that the only proper object of a constitutional challenge in this case is s. 212(2) of the 1985 Act. That section does not impose any treatment or punishment. 42 The second proposition relies for its force on the availability of curative discharges elsewhere than in British Columbia, the effect of which is to make the minimum punishments in s. 255(1) of the Criminal Code “cruel and unusual” in this province. Thus, the argument is really a s. 15 argument in disguise. 43 That said, if the challenge is in fact directed at the minimum punishments found in s. 255(1), and leaving aside the failure of the notice under the Constitu- tional Question Act to raise such challenge directly, I agree with the Crown sub- 200 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

mission that the current standards by which the constitutionality of punishments generally is measured require that a cruel and unusual punishment be one that is either “so excessive as to outrage standards of decency” or “disproportionate to the extent that Canadians would find the punishment abhorrent or intolerable“, see R. v. Ferguson, [2008] 1 S.C.R. 96 (S.C.C.) at para. 14. None of the mandatory minimum punishments, nor indeed any of the maximum punishments, provided for drinking driving offences in s. 255(1) could possibly be said to meet either of those thresholds.

The S. 7 Argument 44 The existence of a “principle of fundamental justice” is the defining constituent of s. 7 of the Charter and any challenge mustered under that section must begin by identifying what principle is at issue. In determining the principle relied upon in this argument, the applicant purports to follow the three step approach as described by McLachlin C.J.C. in para. 8 of her judgment in the Canadian Foundation for Children, Youth & the Law v. Canada (Attorney Gen- eral) [2004 CarswellOnt 252 (S.C.C.)] case: 1. It must be a legal principle; 2. There must be sufficient consensus that the alleged principle is vital or fundamental to our societal notion of justice; and 3. The alleged principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results. 45 In response to these tests, the argument advanced by the applicant alleges that 1. “access to curative discharge provisions on sentencing is a legal principle that provides meaningful content to s. 7”; 2. there is “sufficient consensus that it is vital or fundamental to our societal notion of justice” that such discharges be available to all regardless of province of residence, and 3. The federal government’s authority to enact curative discharge provisions is identified with precision in s. 91(27) of the Constitution Act, 1867. 46 It is clear this argument cannot succeed. Quite apart from the fact that access to curative discharges as a sentencing option is a manifestation of sentencing policy and not a legal principle, with the governments of three provinces representing more than half the population of Canada declining to request that the Governor-in-Council proclaim s. 255(5), it is patently obvious there is no such consensus as suggested. Furthermore, what must be identified with precision is the principle of fundamental justice and not the legislative authority from which it is said to emanate. R. v. Jimmy J. Wood Prov. J. 201

47 However, the applicant’s argument also offers an alternative candidate as the principle of fundamental justice relevant the s. 7 challenge she raises. Based on the fact that the question was “left open” by Wilson J. in Turpin, it is suggested that the “equal application of the criminal law to all persons in Canada” is such a principle. In support of that proposition reference is made to the judgment in Hamilton where, at para. 48, Dubin J.A. stated that as a “general rule it is fundamental that the criminal law treat all persons equally”, to the judgments of both the Saskatchewan Court of Queen’s Bench in R. v. Tremblay (1985), 20 C.C.C. (3d) 454 (Sask. Q.B.) and that province’s Court of Appeal in Use of French in Criminal Proceedings in the Courts of Saskatchewan, Re (1987), 36 C.C.C. (3d) 353 (Sask. C.A.), in which similar pronouncements are to be found, and to the judgement of McIntyre J. in MacKay in which he stated that: ...since the principle of equality before the law is to be maintained, departures should be countenanced only where necessary for the attainment of social objectives and then only to the extent necessary in the circumstances to make possible the attainment of such objectives.... 48 This proposed principle of fundamental justice faces considerable difficulty as the references said to support it, in the authorities relied upon, are now all of doubtful authority. It is accurate to say that Wilson J. in Turpin did not comment on whether equal application of the criminal law to all persons in Canada constituted a principle of fundamental justice within the meaning of s. 7. That section was not pleaded in that case. However, as noted above, her judgment did explicitly reject the statements found in a number of cases, including those relied upon by the applicant in Hamilton, Use of French in Criminal Proceedings in the Courts of Saskatchewan, Re and Tremblay, to the effect that it is a fundamental principle under s. 15 of the Charter that the criminal law apply equally throughout the country. 49 As well, the decision of the Supreme Court of Canada in Cornell has undermined the passage relied upon from the judgment of McIntyre J. in MacKay. The issue in that case was whether the roadside testing provision in what was then s. 234.1(1), now s. 254(2)(b), of the Criminal Code, which had been proclaimed in force in Ontario but not in either British Columbia or Quebec, infringed s. 1(b) of the Bill of Rights as well as ss. 7 and 11(g) of the Charter. 50 In giving reasons for the Court, Le Dain J. noted that insofar as the application of s. 1(b) of the Bill of Rights was concerned, the above noted passage from the judgment of McIntyre J. in MacKay had been rejected by the majority of the Court in R. v. Beauregard, [1986] 2 S.C.R. 56 (S.C.C.), at least to the extent it suggests that, when considering the application of the valid federal objective test, departures from the principle of equality could only be justified if necessary for the attainment of such an objective. In other words, offered as a justification for federal legislation of uneven application, a valid federal objective trumps the principle of equality before the law found in s. 1(b) of the Bill of Rights. 202 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

51 Having disposed of the s. 1(b) argument on the basis of the Court’s concur- rent decision in R. v. Hufsky, [1988] 1 S.C.R. 621 (S.C.C.), Le Dain J. then went on to consider the argument that the right to equality before the law was a principle of fundamental justice within the meaning of s. 7, and that the non-universal proclamation of s. 234.1, punishment for which on conviction included the potential for imprisonment, infringed the right of an Ontario resident not to be deprived of liberty except in accordance with the principles of fundamental justice, He dismissed that argument on the ground that to give effect to it would be contrary to Parliament’s intention that s. 15 of the Charter was not to take effect until April 17, 1985, a date after the constitutional challenge in that case was launched. In doing so he noted: If that issue were to be determined under s. 7 of the Charter on the basis that equality before the law was a principle of fundamental justice within the meaning of that provision, it would inevitably have the effect of determining the issue for the purposes of s. 15 as well, since the analysis, including the application of s. 1, if necessary, would be essentially the same under the two provisions. This further reinforces my conviction that it would be wrong to apply s. 7 in the present case, in view of the clear expression of legislative intention that the constitutional protection of the right to equality before the law was not to take effect until 17th April 1985. (p. 478, emphasis added) 52 I can see no difference between the situation facing the Court in Cornell, with respect to then s. 234.1(1) of the Criminal Code, and the s. 7 challenge advanced by the applicant in this case based on the proposition that it is a principle of fundamental justice that the criminal law apply equally to all persons in Canada. That argument is essentially an argument under s. 15 of the Charter.

The S. 15 Argument 53 Relying on a passage from the judgment of Southin J.A. in Van Vliet, the applicant submits that test for discrimination under s. 15 of the Charter is: ...whether a fair minded person, weighing the purposes of the legislation against its effect on individuals adversely affected, and giving due weight to the right of the legislature to pass laws for the good of all, would conclude that the legislative means adopted are unreasonable or unfair. This passage was recorded by Southin J.A. as being part of the written argument of the appellant in that case. They are not her words and, in any event, are of no significance since her reasons did not address the appellant’s s. 15 arguments in that case. In fact, the passage replicates a portion of the judgment of the Court of Appeal in Andrews v. Law Society (British Columbia) (1986), 2 B.C.L.R. (2d) 305 (B.C. C.A.), at 315. As such, the test therein set forth must be viewed as having been overtaken by the decision of the Supreme Court of Canada in that case as well as by that Courts subsequent decisions in Law v. Canada (Minister R. v. Jimmy J. Wood Prov. J. 203

of Employment & Immigration), [1999] 1 S.C.R. 497 (S.C.C.) and R. v. Nguyen, [1990] 2 S.C.R. 906 (S.C.C.). 54 Turning to the early cases dealing with the non-proclamation of s. 255(5) and its forerunners, the applicant relies on the “strong” dissent by Anderson J.A. in Van Vliet, and points out that the majority judgment of Southin J.A by-passed the s. 15 argument advanced in that case and therefore does not bind this court insofar as that challenge is concerned. Counsel also suggests that as a result of the judgment of Wilson J. in Turpin “the curative discharge law in Canada was thrown into turmoil”, leading the Ontario Court of Appeal in Alton to reverse itself without engaging in a s. 15 analysis of the issue. 55 Neither counsel referred to the judgment of Mackay J. in Hansen. However, the applicant argues that the decision in Wells is not binding on this court because Boyd Co. Ct. J. incorrectly identified impaired drivers in British Columbia as the “discrete and insular minority” when, in counsel’s view, it is alcoholic impaired drivers who form the actual group subjected to differential treatment by virtue of the non-proclamation of s. 255(5). 56 With the British Columbia cases thus distinguished, the applicant relies on the more recent judgment of S. D. Brown J. in Pickup as the correct approach to take when considering the s. 15 challenge to the non-proclamation of s. 255(5). 57 I agree that the majority judgement of the British Columbia Court of Appeal in Van Vliet does not, by itself, bind this court with respect to the outcome of the applicant’s s. 15 challenge. Furthermore, I am of the view that were it necessary to consider a remedy in this case, the opinions expressed by Southin J.A. in that regard, which it must be remembered were offered in the early days of Charter litigation, have been overtaken by subsequent developments in the law both at the appellate level and in the Supreme Court of Canada. That said, for the reasons that follow I am unable to accept the dissenting judgment of Anderson J.A. as determinative of the outcome in this case. 58 The analysis of a s. 15 claim of unequal treatment before and under the law found in the judgment of Iacobucci J. in Law is helpful in setting the framework within which to consider such claims. That analysis involves determining the proper answers to the following questions: 1. Does the impugned law draw a distinction between the claimant and others on the basis of one or more of personal characteristics, or fail to take into account the claimants already disadvantaged position resulting in substantially different treatment on the basis of one or more personal characteristics? 2. Is the Claimant subjected to different treatment based on one or more enumerated or analogous grounds? And 3. Does the differential treatment discriminate by imposing a burden upon or withholding a benefit from the claimant in a manner that reflects the 204 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

stereotypical application of presumed group or personal characteristics, or that otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect and consideration? 59 It is my conclusion that the analysis in this case need progress no further that a resolution of the first question, at which point it becomes clear that the applicant’s s. 15 challenge of the non-proclamation of s. 255(5) of the Criminal Code cannot succeed. I agree, as did Mackay J. in Hansen and Boyd Co. Ct. J. in Wells, that there is a distinction between the dispositions available to alcoholics in British Columbia who are convicted of drinking driving offences under the Criminal Code, and those available to similarly situated individuals in at least some other provinces in Canada. However, in my view the real question is not how to define the “discreet and insular minority” affected by this distinction, but rather whether that distinction is based upon a “personal characteristic.” 60 The only possible candidate for this essential requirement in the first question posed in Law is “province of residence” as it is the province of residence which determines whether curative discharges will, as a matter of law, be made available to those within the class of persons contemplated by s. 255(5). Put another way, the personal characteristic which creates the alleged discrimination in Ms. Jimmy’s case is her province of residence. 61 In Turpin, Wilson J. did not rule out the possibility that a person’s province of residence could, in some circumstances, be a personal characteristic of an individual constituting a ground of discrimination. Citing the need for a case by case analysis in all s. 15 challenges, she also left open the possibility that some variations in criminal law or procedure among different provinces could give rise to discrimination in the sense defined in Andrews. 62 These comments were considered by Dickson C.J.C. in R. v. S. (S.), [1990] 2 S.C.R. 254 (S.C.C.). At issue in that case was the decision of the Attorney Gen- eral of Ontario not to provide a program of alternative measures provided for in s. 4 of the Young Offenders Act, S.C. 1980-81-82-83, c. 110. That decision was challenged as violating the s. 15 rights of young offenders in Ontario who, as a result, did not have access to such a program. 63 Writing for the Court, Dickson C.J.C. concluded that s. 4 of the Young Of- fenders Act gave each province a discretion whether to implement a program of alternative measures and accordingly the decision of the Attorney General of Ontario not to do so was a legitimate decision not to exercise a power granted by Parliament. Having determined that the Young Offenders Act was valid federal legislation, Dickson C.J.C. concluded that once it was determined there was no duty on the Attorney General of Ontario to implement a program of alternative R. v. Jimmy J. Wood Prov. J. 205

measures, the non-exercise of discretion could not be constitutionally attacked simply because it created differences between provinces: The Attorney General of Ontario was under no legal obligation to implement a program and, in my opinion, the decision is unimpeachable because, for the purposes of a constitutional challenge on the bais of s. 15(1) of the Charter, “the law” is s. 4 which grants the discretion. (p. 285, emphasis in original) 64 The parallel between the decision of the Attorney General of Ontario in S. (S.), not to exercise the discretion given by Parliament, and the decision in this case of the Lt. Gov.-in-Council of British Columbia not to exercise the discretion found in s. 212(2) of the 1985 Act is apparent. The above passage from the judgment in S. (S.) supports my earlier conclusion that the proper s.32(1) “matter” to challenge under ss. 7, 12 or 15 of the Charter is the legislation granting the discretion, namely s. 212(2) of the 1985 Act, and not the refusal of the Lt. Gov.-in-Council to exercise that discretion. 65 Turning to the question whether the differential treatment afforded to alcoholics in British Columbia who are convicted of drinking driving offences under the Criminal Code offends s. 15 of the Charter, I am of the opinion that issue too is settled by the decision in S. (S.). Commencing at para. 46 of the judgment, Dickson C.J.C. set forth his reasons for concluding that the outcome of the appeal in that case would have been the same if s. 4 of the Young Offend- ers Act, rather than the exercise of discretion by the Attorney General of On- tario, had been the subject matter of the s. 15 challenge. 66 Accepting that the legal disadvantage suffered by young offenders in On- tario, by reason of the unavailability of alternative measures, resulted in “a distinction based on the situs of an offence”, he noted that the issue then was whether, in the circumstances of that case, that distinction could properly be considered a distinction based upon a personal characteristic. In his view; ...the approach to s. 15(1) established by this court in Andrews takes on an extra dimension when the distinction is province-based. (p. 287) 67 Referring to the passages from the judgment of Wilson J. in Turpin in which she held open the possibility that such a distinction could, in some circumstances, be a personal characteristic of a person or group, he made the following points at pp. 289-91: I agree with Wilson J. that, in determining whether province-based distinctions which arise from the application of federal law contravene s. 15(1) of the Charter, a case by case approach is appropriate. However, in my view, in order to engage in that analysis it is useful to formulate a principled approach for dealing with such distinctions. It is necessary to bear in mind that differential application of federal law can be a legitimate means of forwarding the values of a federal system. In fact, in the context of the administration of the criminal law, differen- 206 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

tial application is constitutionally fostered by ss.91(27) and 92(14) of the Constitution Act, 1867. The area of criminal law and its application is one in which the balancing of national interests and local concerns has been accomplished by a constitutional structure that both permits and encourages federal-provincial co-operation. A brief review of Canadian constitutional history clearly demonstrates that diversity in the criminal law, in terms of provincial application, has been recognized consistently as a means of furthering the values of federalism. Differential application arises from a recognition that different approaches to the administration of the criminal law are appropriate in different territorially-based communities. In a line of cases beginning with Fredericton (City) v. R. (1880), 3 S.C.R. 505..., this court consistently has upheld federal statutes with differential geographic application. As Laskin J. conceded in his dissenting reasons in R. v. Burnshine, [1975] 1 S.C.R. 693..., a case which dealt with the differential application of a provision of the Criminal Code in the context of s. 1(b) of the Canadian Bill of Rights, at p. 75: As a matter of legislative power only, there can be no doubt about Parliament’s right to give its criminal or other enactments special applications, whether in terms of locality or otherwise. That principle was reaffirmed by Le Dain J., in the context of s. 1(b) of the Canadian Bill of Rights, writing for the court in R. v. Cornell, [1988] 1 S.C.R. 461.... Finally, it was recognized by Wilson J. in Turpin, supra, at p. 1334: In concluding that s. 15 is not violated in this case, I realize that I am rejecting the proposition accepted by several Courts of Ap- peal in Canada that it is a fundamental principle under s. 15 of the Charter that the criminal law apply equally throughout the country. I agree with that conclusion and find it equally applicable to the facts of this appeal. In my opinion, the question of how young people found to have committed criminal offences should be dealt with is one upon which it is legitimate for Parliament to allow for province-based distinctions as a reflection of distinct and rationally based political values and sensitivities...... In recognizing the benefit of geographical diversity in the context of programs of alternative measures, I am mindful of the fact, although I have found the legislation to be valid federal law, it is not wholly unconnected to child welfare - a matter of provincial jurisdiction. Differential application of the law through federal-provincial co-operation is a legitimate means whereby governments can overcome the rigidity of the “watertight compartments” of the distribution of powers with respect to matters that are not easily categorized or dealt with by one level of government alone. Consequently, I find that in this case the legislation does not amount to a R. v. Jimmy J. Wood Prov. J. 207

distinction that is based upon a “personal characteristic” for the purposes of s. 15(1) of the Charter. (emphasis added) 68 In my view, precisely the same considerations apply to the drinking driving legislation which is found in the Criminal Code. While what was s. 239(2) of the 1985 Act, now s. 255(5), was valid federal legislation under s. 91(27) of the Constitution Act, 1867, the federal-provincial co-operation which is manifest in s. 212(2) of that Act recognizes the very considerable stake that the provinces have in the effective enforcement of those laws and in the maintenance of safety on the highways and roads within their geographic boundaries. One has only to review the motor vehicle legislation in effect in each province across the country to recognize the extent to which road safety is of vital concern to the governments of all provinces. Thus, it makes sense that each provincial government be at liberty to decide whether a provision such as s. 255(5) of the Criminal Code is consistent with they believe to be effective impaired driving enforcement in their province. 69 In addition, the health care costs associated with the carnage created by impaired drivers on provincial highways are in large measure borne by the provinces health care systems. At the same time, as the applicant argues, alcoholism is recognized as a disease and the treatment costs associated with that affliction are also borne in large measure by provincial health care systems. With health care costs being the single largest item in virtually every provincial budget across the country it is reasonable, to say the least, that the provinces be given the opportunity to participate in the decision whether to proclaim federal legislation which has the potential to have a negative impact their responsibility for those costs. 70 In those circumstances the rigidity of the “watertight compartments” of the distribution of powers under the Constitution Act, 1867 are legitimately relaxed by the discretion vested in each province, under s. 212(2) of the 1985 Act whether to request proclamation of s. 255(5) of the Criminal Code. 71 In my view, the combined effect of the judgments in Turpin and S. (S.) confirm the prescient judgment of Mackay J. in Hansen as well as the later judgment of Boyd Co. Ct. J, in Wells, both of which judgments are binding on this Court.

Conclusion 72 It follows that the application brought by Ms. Jimmy for relief under s. 15 of the Charter must be dismissed. Counsel can set the matter of sentencing down before me on a date convenient to both them and the rota Application dismissed. 208 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

[Indexed as: R. v. Miller] Her Majesty the Queen and Diana Miller Ontario Court of Justice Stephen D. Brown J. Heard: February 24, 2010; September 1, 2010 Judgment: October 6, 2010 Docket: Burlington 08-4067, 2010 ONCJ 468 John Dibski for Crown Charles Spettigue for Accused, Diana Miller Criminal law –––– Offences — Driving/care and control with excessive alcohol — Presumption of alcoholic content at time of offence — Demand by police officer –––– Accused was at her boyfriend’s home when they had fight — Boyfriend called police and reported that accused was drinking and driving — Officers were conducting anti-drinking and driving spot checks when they came upon accused — Officer smelled alcohol on accused’s breath and she stated she had fight with her boyfriend — Officer confirmed accused was person mentioned in call and made breath demand — Officer waited 20 minutes to transport accused to station as he did not have car with screen — At station, accused was booked and then waited for duty counsel to call back — Accused gave breath samples — Accused was charged with driving with excessive alcohol — Accused convicted — There were adequate grounds to make demand for breath sample — Ac- cused was identified as person who had been drinking in call to police — Officer also smelled alcohol on accused’s breath and she admitted she had some wine earlier in evening after initially denying it. Criminal law –––– Offences — Driving/care and control with excessive alcohol — Presumption of alcoholic content at time of offence — Interval of fifteen minutes between samples –––– Accused was at her boyfriend’s home when they had fight — Boyfriend called police and reported that accused was drinking and driving — Officers were conducting anti-drinking and driving spot checks when they came upon accused — Officer smelled alcohol on accused’s breath and she stated she had fight with her boyfriend — Officer confirmed accused was person mentioned in call and made breath demand — Officer waited 20 minutes to transport accused to station as he did not have car with screen — At station, accused was booked and then waited for duty counsel to call back — Accused gave breath samples — Accused was charged with driving with excessive alcohol — Accused convicted — No officers acted unreasonably or wrongly priori- tized other matters — Interval of 22 minutes between samples was not important. Criminal law –––– Offences — Driving/care and control with excessive alcohol — Presumption of alcoholic content at time of offence — Sample taken as soon as practicable –––– Accused was at her boyfriend’s home when they had fight — Boyfriend called police and reported that accused was drinking and driving — Officers were conducting anti-drinking and driving spot checks when they came upon accused — Officer smelled alcohol on accused’s breath and she stated she had fight with her boyfriend — R. v. Miller 209

Officer confirmed accused was person mentioned in call and made breath demand — Officer waited 20 minutes to transport accused to station as he did not have car with screen — At station, accused was booked and then waited for duty counsel to call back — Accused gave breath samples — Accused was charged with driving with excessive alcohol — Accused convicted — Twenty minute wait for car with screen was reasonable and was in furtherance of officer safety — Accused’s right to counsel under s. 10(b) of Canadian Charter of Rights and Freedoms was not violated by police procedure of booking her before calling legal aid — Calling after booking procedure was completed was not violation — Right is to call counsel within reasonable time — Officers did not elicit evidence until accused had consulted counsel — Procedure was reasonable. Criminal law –––– Charter of Rights and Freedoms — Arrest or detention [s. 10] — Right to be informed of reasons for arrest [s. 10(a)] –––– Accused was at her boyfriend’s home when they had fight — Boyfriend called police and reported that accused was drinking and driving — Officers were conducting anti-drinking and driving spot checks when they came upon accused — Officer smelled alcohol on accused’s breath and she stated she had fight with her boyfriend — Officer confirmed accused was person mentioned in call and made breath demand — Officer waited 20 minutes to transport accused to station as he did not have car with screen — At station, accused was booked and then waited for duty counsel to call back — Accused gave breath samples — Accused was charged with driving with excessive alcohol — Accused brought application to exclude evidence — Application dismissed; accused convicted — Accused’s rights under s. 10(a) of Canadian Charter of Rights and Freedoms were not violated — Officer’s failure to record his conversation with accused about program he was conducting was not violation of s. 10(a) Charter rights — Officer gave common introduction — Accused did not testify — Accused must have known why she was stopped by officers as they were running anti-drinking and driving program and identified themselves that way. Criminal law –––– Charter of Rights and Freedoms — Arrest or detention [s. 10] — Right to counsel [s. 10(b)] — Right to retain and instruct counsel without delay –––– Accused was at her boyfriend’s home when they had fight — Boyfriend called police and reported that accused was drinking and driving — Officers were conducting anti-drinking and driving spot checks when they came upon accused — Officer smelled alcohol on accused’s breath and she stated she had fight with her boyfriend — Officer confirmed accused was person mentioned in call and made breath demand — Officer waited 20 minutes to transport accused to station as he did not have car with screen — At station, accused was booked and then waited for duty counsel to call back — Accused gave breath samples — Accused was charged with driving with excessive alcohol — Accused convicted — Twenty minute wait for car with screen was reasonable and was in furtherance of officer safety — Accused’s right to counsel under s. 10(b) of Canadian Charter of Rights and Freedoms was not violated by police procedure of booking her before calling legal aid — Calling after booking procedure was completed was not violation — Right is to call counsel within reasonable time — Officers did not elicit evidence until accused had consulted counsel — Procedure was reasonable. Cases considered by Stephen D. Brown J.: R. v. Carson (2009), 2009 ONCA 157, 2009 CarswellOnt 811, [2009] O.J. No. 660 (Ont. C.A.) — considered 210 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

R. v. Chipchar (2009), 2009 ABQB 562, 2009 CarswellAlta 1541, [2009] A.J. No. 1058 (Alta. Q.B.) — considered R. v. Domski (2002), 2002 CarswellOnt 5137, [2002] O.J. No. 3544 (Ont. C.J.) — considered R. v. Hnetka (2007), 2007 CarswellAlta 991, 2007 ABPC 197, 50 M.V.R. (5th) 139, 426 A.R. 254, [2007] A.J. No. 806 (Alta. Prov. Ct.) — considered R. v. Malton (2010), 2010 ONCJ 271, 2010 CarswellOnt 5240, [2010] O.J. No. 3106 (Ont. C.J.) — followed R. v. Manninen (1987), 76 N.R. 198, 1987 CarswellOnt 967, 1987 CarswellOnt 99, 38 C.R.R. 37, 58 C.R. (3d) 97, 21 O.A.C. 192, 34 C.C.C. (3d) 385, [1987] 1 S.C.R. 1233, 41 D.L.R. (4th) 301, 61 O.R. (2d) 736 (note), EYB 1987-67474, [1987] S.C.J. No. 41 (S.C.C.) — considered R. v. Muthulingam (2008), 2008 ONCJ 505, 2008 CarswellOnt 6140, [2008] O.J. No. 4107 (Ont. C.J.) — considered R. v. Price (2010), 2010 CarswellOnt 2369, 2010 ONSC 1898, 94 M.V.R. (5th) 23 (Ont. S.C.J.) — followed R. v. Skwarchuk (2010), 2010 CarswellAlta 1566, 2010 ABPC 238, [2010] A.J. No. 894 (Alta. Prov. Ct.) — considered R. v. Vanderbruggen (2006), 2006 CarswellOnt 1759, 29 M.V.R. (5th) 260, 206 C.C.C. (3d) 489, 208 O.A.C. 379, [2006] O.J. No. 1138 (Ont. C.A.) — followed Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 8 — pursuant to s. 10(a) — pursuant to s. 10(b) — pursuant to s. 24(2) — pursuant to Criminal Code, R.S.C. 1985, c. C-46 s. 253(1)(b) — pursuant to s. 254(2) — considered s. 258(1)(c)(ii) — considered s. 258(1)(g) — considered s. 258(7) — considered Words and phrases considered suspicion [Counsel] did not cite Madam Justice Shelley’s decision, in R. v. Chipchar, [2009] A.J. No. 1058 (Alta. Q.B.) wherein Hnetka was questioned. In that case, Shelley, J. stated at para. 17 that: 17 Ms. Chipchar further relies on a number of cases for the proposition that an ambiguous admission, that does not identify when the alcoholic drinks were consumed, is insufficient for a reasonable suspicion: R. v. Hnetka, 2007 ABPC 197; R. v. Vermette, 1997 Carswell- Sask 837, 1997 CanLII 9648 (Sask. QB). The Crown strongly objects to the suggestion that an officer has an obligation to ask pre- R. v. Miller 211

cisely when the drinks were consumed, unless there is a concern about recent consumption. Otherwise, the Crown argues, this leads to the dangerous suggestion that officers have to start doing expert- type calculations to try and determine if alcohol is still in the body. Pinpointing an exact time would be only one part of any analysis necessary to determine whether, and the extent to which, alcohol might still be in a person’s body. I agree with the Crown, and to the extent that either Hnetka and Vermette stand for the proposition suggested by Ms. Chipchar, I respectfully disagree. She goes on to state quite helpfully at para. 19-20: 19 Binnie J. in R. v. Brown, 2008 SCC 18, discussed the difference between mere suspicion and reasonable suspicion (at para. 75): “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P. Sankoff and S. Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123: [T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sin- cerely held subjective belief is insufficient. Instead, to justify such a search, the suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment. [p. 125] ... What distinguishes “reasonable suspicion” from the higher standard of “reasonable and probable grounds” is merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must exist to support the search. [p. 126] 20 Thus, reasonable suspicion requires only that the belief be one of a number of possible conclusions based on the supporting facts, not a probability. In R. v. Jacques, [1996] 3 S.C.R. 312, Gonthier J., for the majority, held that the “suspicionon reasonable grounds” standard in the Customs Act requires only that there isa possibility that an offence is being committed. Wachowich J.(as he then was) in R. 212 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

v. Bilodeau (1990), 26 M.V.R. (2d) 170 (Alta. QB), took the same approach in the context of impaired driving, noting (at para. 5): A roadside demand under s. 254(2) only requires the officer to “reasonably suspect” that the accused is operating a motor vehicle with alcohol present in his body in order to make a demand for a sample of an accused’s breath for a roadside analysis. In view of the wording, “reasonably suspects”, the Court is not concerned with whether the officer’s belief is the more probable inference to be drawn from the facts as long as his belief is bona fide. Thus, the smell of alcohol on the accused’s breath, together with a speeding infraction, was sufficient to make a demand. (R. v. Trent, (1979) 47 C.C.C. (2d) 321). See also R. v. Singh (2006), 44 M.V.R. (5th) 285; R. v. Haydl (2003), 58 W.C.B. (2d) 230 (Ont. C.J.) at para.14; and R. v. Tidlund, 2008 ABPC 113 at para. 25. as soon as practicable As Mr. Justice Rosenberg stated in reviewing the state of the law in R. v. Vanderbruggen, [2006] O.J. No. 1138 (Ont. C.A.) at paras. 12-14, the phrase “as soon as practicable” means: 12 That leaves the question that is at the heart of this appeal — the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. See R. v. Phillips (1988), 42 C.C.C. (3d) 150 (Ont C.A.) at 156; R. v. Ashby (1980), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen (1988), 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, [1998] O.J. No. 4362 (C.A.). 13 In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The “as soon as practicable” requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that — in all the circumstances — the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a de- tailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), 150 C.C.C. (3d) 225 R. v. Miller Stephen D. Brown J. 213

(Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7. 14 Whether the samples were taken as soon as practicable in this case was an issue of fact for the trial judge. See R. v. Lightfoot (1980), 4 M.V.R. 238 (Ont. C.A.) andR. v. Renda, [2005] O.J. No. 1453 (C.A.). In my view, the Crown adduced sufficient evidence before the trial judge from which he could conclude that the police acted reasonably and that the breath samples were taken as soon as practicable in all the circumstances. In this case, there was an approximate delay of one hour and fifteen minutes from the time of the offence to the taking of the first sample. The following evidence was offered as explanation for this delay: time was taken in arresting the appellant, reading him his rights, transporting him to the station, waiting for the technician to arrive, searching the appellant, conveying the information as to the grounds for the breath demand and waiting for the technician to prepare the breathalyzer (Foley was “playing around” with the machine). There was no evidence that either the arresting officer or the technician acted unreasonably. The record only shows that they were attentive to their duties and to the need to administer the tests to the appellant as soon as practicable. There was no evidence that the officers gave unreasonable priority to any other task.

TRIAL of accused on charge of driving with excessive blood alcohol.

Stephen D. Brown J.:

1 Diana Miller is charged with operating a motor vehicle while her blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood on De- cember 19, 2008, contrary to s. 253(1)(b) of the Criminal Code of Canada. 2 The defendant brought a motion under ss. 8, 10(a) and 10(b) of the Cana- dian Charter of Rights and Freedoms seeking to exclude the certificate of analysis pursuant to s. 24(2) and the trial proceeded with a blended voir dire to determine these issues.

1.0 Evidence at Trial 1.1 Constable Deron Ellsworth 3 Constable Deron Ellsworth at the time of testifying was a 28 year veteran with the Halton Regional Police Service. 4 On Friday, December 19, 2008, he was a member of a R.I.D.E. program that was originally set up to do spot checks in the vicinity of a local drinking estab- lishment. There had been a large snowstorm that day and the bar was very quiet with no cars in the parking lot. They were in the process of changing locations when, at 9:57 p.m., they received a call over the radio from dispatch relating to a domestic dispute. The information was that there was an unwanted individual at 214 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

a residence who had left in a motor vehicle described as a red Acura which was later updated to be a red Honda. The driver was described as a female who was most likely heading home to a residence across from the Joseph Brant Memorial Hospital. Information was that the driver had been drinking. 5 As a result of this, and because the original R.I.D.E. location was too quiet, Constable Ellsworth and the other members of the spot check relocated to a location on North Shore Boulevard west of Maple Avenue across from Joseph Brant Hospital. 6 The intent of the officers at the spot check was to investigate this motorist who would possibly have been drinking but also to stop all vehicles in the vicinity to determine whether their drivers had been consuming alcohol. 7 At 10:10 p.m., Constable Ellsworth stopped the vehicle driven by Ms. Miller, although he did not know at the time that this was the suspect vehicle because it was covered in snow and the front license plate was obscured by snow. 8 He asked her if she had consumed any alcoholic beverages and she replied that she had not. He mentioned to her that he could detect the odour of an alcoholic beverage from her breath and she replied that she had had one glass of wine earlier. She continued and said that she had just had a huge fight with her boyfriend and that is when Constable Ellsworth determined that this was the person that was referred to in the radio dispatch. He checked the rear license plate and confirmed this while he was on the way back to his cruiser. He had formed the opinion that she was operating a motor vehicle with alcohol in her system and therefore made a demand that she provide a sample of her breath into an approved screening device. 9 After reading her the demand at 10:12 p.m., he asked her to accompany him back to his police car and to bring her driver’s license with her. She was upset and mentioned on a couple of occasions that she had just had a fight with her boyfriend, but she was cooperative with the police. 10 She had a seat inside a police car and Constable Ellsworth explained the procedure for the approved screening device. She was asked if she had anything to eat, drink, or smoke, within the last 15 minutes and she replied that she had not. 11 She made three attempts that yielded no suitable samples of her breath; then on the fourth attempt, she did blow properly and registered a fail on the device. As a result of that, Constable Ellsworth arrested her at 10:15 p.m. for operating a motor vehicle with over 80 milligrams of alcohol in 100 millilitres of blood. 12 The police car that Ms. Miller was in did not have a prisoner screen in it so he then called for another officer to come up to the location with a police car with a screen in it. Between 10:15 and 10:20 p.m., they waited for an officer to R. v. Miller Stephen D. Brown J. 215

arrive with the caged cruiser and also retrieved her scarf and her purse from her car. 13 The rights to counsel were completed at 10:21 p.m. and when asked if she wished to call a lawyer now, her response was “I don’t have a lawyer”. At 10:22 p.m., the breath sample demand was read to her and she understood the demand and agreed to provide a sample. 14 At 10:23 p.m., she was read the primary caution that she understood. 15 They departed the scene at 10:23 p.m. and arrived at 30 Division at 10:31 p.m. 16 At 10:33 p.m., Ms. Miller was escorted into the booking room area and she had a seat on a bench in the booking room. Various questions were asked of her and her property was lodged. 17 When asked how long that process normally takes, Constable Ellsworth indicated that it could be from 10 to 20 minutes to half an hour. At 10:40 p.m., acting Staff Sergeant Kim Hill came into the booking area and commenced to ask Ms. Miller questions for the prisoner custody record. At one point, he had to go and get a DVD to record events in the Intoxilyzer room. 18 At 10:49 p.m., Ms. Miller asked to use the washroom and Officer Moore escorted her to the washroom and they returned at 10:51 p.m. They continued to work on their reports and at 10:58 p.m., Constable Ellsworth placed a call to Legal Aid duty counsel for Ms. Miller, at her request. He completed this call to Legal Aid at 11:02 p.m. and waited for a return call from duty counsel. 19 At 11:12 p.m., he received information that duty counsel had called back and was on the line, so Ms. Miller was escorted to a room and provided privacy where she could consult with duty counsel at that time. Ms. Miller was off the phone and came back to the booking room at 11:17 p.m. 20 Between 11:17 p.m. and 11:26 p.m., she stayed on the bench in the booking room at which time custody was turned over to Constable Carey Moore, a qualified Intoxilyzer technician. 21 Constable Ellsworth was somewhat vague in his testimony about what was occurring between 11:17 and 11:26 p.m. and the Crown entered into evidence a video recording of Ms. Miller in the booking room that captured the time from her arrival in the booking room until she entered the Intoxilyzer room at 11:33 p.m. The video did not have an audio track. 22 After completing the Intoxilyzer tests, Ms. Miller was given back into the custody of Constable Ellsworth and he served her with true copies of the certificate of analysis and notice pursuant to section 258(7) of the Criminal Code. 23 The Crown did not call Constable Moore but filed a copy of his certificate of analysis and seeks to rely upon the presumption of identity pursuant to section 258(1)(g) of the Criminal Code. The certificate of analysis indicates that at 11:31 p.m., the first sample was completed and at 11:53 p.m., the second sample 216 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

was commenced. Both samples were received directly into an approved Intox- ilyzer instrument and both yielded readings of 120 milligrams of alcohol in 100 millilitres of blood. The certificate of analysis containing the notice of intention to produce is filed as Exhibit 2 in the proceedings. 24 On cross-examination, Mr. Spettigue attempted to establish that Constable Ellsworth was aware of the elimination of alcohol from the body over a course of time. While acknowledging this, Constable Ellsworth maintained his position that at the time that he gave the approved screening device demand, he had a reasonable suspicion that Ms. Miller had alcohol in her body as a result of the smell of alcohol emanating from her breath and her admission of having a glass of wine earlier. 25 Mr. Spettigue, as well, attempted to develop his argument that Ms. Miller would not have known the reason for her stop, however, I was not satisfied that this was the case. This was an organized R.I.D.E. program with police cruisers manned by uniformed police officers with their emergency lights on. When an individual is stopped, especially at the holiday season, in the evening, and when they are asked by a uniformed officer if they have had anything to drink, I believe that it would be apparent to any individual that they are being investigated for drinking and driving. Also, though he has no note of it, Constable Ellsworth testified that it was always his practice to identify himself as a Halton Regional police officer who was conducting a R.I.D.E. program and then to ask the individual if they had anything to drink that night. 26 With respect to the “as soon as practicable requirement”, Mr. Spettigue was critical of the time taken to transfer Ms. Miller to a police cruiser with a screen to allow her to be transported to the police station. I am satisfied, however, that the time taken to complete this transfer of vehicles was minimal and that it was in furtherance of officer safety that she be transported to the division in a secure car. 27 Mr. Spettigue also pressed the point that the tests were not taken as soon as practicable because it was not until 10:58 p.m., some 27 minutes after her arrival at the station, that a call was placed to duty counsel on her behalf. Constable Ellsworth testified that he believed that while acting Staff Sergeant Hill was conducting his questioning and filling out his forms, he came to a point where he asked her if she wanted to contact a lawyer and when she replied in the af- firmative, he contacted duty counsel for her. 28 He acknowledged that the sooner a call is placed to Legal Aid, the sooner a call will be received from duty counsel. In other words, the police must initiate the process before duty counsel will place a return call. 29 Constable Ellsworth testified that the officer in charge of the station wanted to fill out his forms first and complete the booking process before the call to duty counsel was placed. It was pointed out to Constable Ellsworth that on page 1 of the form that acting Staff Sergeant Hill was filling out, was information R. v. Miller Stephen D. Brown J. 217

indicating that Ms. Miller had been given her rights to counsel and indicated that she wished to contact counsel. The subsequent pages on the form deal with issues such as medical questions concerning the prisoner’s physical and emotional health. 30 In effect, Constable Ellsworth was aware that Ms. Miller wished to speak to duty counsel as a result of her response to him at the roadside at 10:21 p.m.

1.2 Acting Staff Sergeant David Kim Hill 31 Acting Sergeant Hill has been a member of the Halton Regional Police Ser- vice for 28 years. On December 19, 2008, he was the officer in charge of the Burlington police station. 32 He outlined the nature of his duties that evening. It was his responsibility to determine, in relation to a person under arrest, their identity, the nature of the arrest, whether or not it’s been a lawful arrest and whether they have been given their Charter rights. 33 As well, he is required to determine any medical conditions, any existing problems that they may have in relation to health or mental health issues. 34 He indicated that as a result, a series of questions are put to the prisoner to determine whether they are in custody lawfully and healthy enough that they can be held for a period of time or overnight if need be. 35 He indicated that in his experience, generally, the booking process takes on average between 15 to 20 minutes. Although many of the forms that have to be filled out only entail the checking of a box, and although the questions may appear straightforward, they sometimes require an explanation and a discussion in order to obtain a suitable answer to the question. 36 Acting Sergeant Hill acknowledged that on the prisoner custody form, two of the pages would not have had to be filled out in so far as page 3 dealt with the search of the prisoner and Ms. Miller was not searched, and page 4 dealt with the custody record and that was not required because she was not lodged in a cell. 37 When it was suggested by Mr. Spettigue that acting Sgt. Hill would have been able to complete the two pages in a ten minute period, he disagreed and stated that it would have taken upwards of, or beyond, 15 minutes. 38 He indicated that it is his practice to have the officer present while he is completing the booking process in the event that the person needs to be escorted from the prisoner custody area or that there are questions that he needs an answer to if the prisoner can’t answer. 39 He acknowledged that there was a telephone in the booking area that is capable of placing outgoing calls and that is the telephone that was used to contact duty counsel. 218 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

40 He indicated that as officer in charge of the station, it would be his duty to give the arresting officer permission to call duty counsel when he was satisfied that the booking process has been concluded.

2.0 Position of the Parties and Analysis 2.1 Did adequate grounds exist for a s. 254(2) demand? 41 Mr. Spettigue argues that sufficient grounds did not exist for requiring Ms. Miller to provide a sample of her breath into an approved screening device. He argues that the relevant evidence going to grounds is that the Halton Regional Police dispatch service received an unsubstantiated call from a male person who says a girlfriend was at his house, would not leave and asked for police assistance to remove her. 42 Information is also imparted that she left in a red car and she had consumed some alcoholic beverages. Mr. Spettigue argues that there is no threshold reliability concerning this information. 43 He argues that there was no evidence of aberrant driving and that when Ms. Miller’s vehicle was stopped, Constable Ellsworth only detected a slight odour of an alcoholic beverage coming from her breath 44 Mr. Spettigue fails to acknowledge that Ms. Miller, when initially questioned about whether she had consumed any alcohol that evening, denied consumption. Constable Ellsworth indicated to her that he could smell the odour of alcohol on her breath and that she indicated that she had consumed one glass of wine earlier that evening 45 Mr. Spettigue suggests that by failing to make a further inquiry as to when she consumed the glass of wine and taking into account that officer Ellsworth was aware generally of a decreasing blood alcohol level as time elapses due to elimination, that it was incumbent upon him to determine when the glass of wine was consumed. 46 Mr. Spettigue states that the decision of Justice Allen in R. v. Hnetka, [2007] A.J. No. 806 (Alta. Prov. Ct.) stands for the proposition that the police are under duty to inquire when the suspect indicates that they have consumed alcohol “a while ago.” 47 Allen J. stated at paras. 15 to 17 of that decision as follows: 15 The test within s. 254(2) is self explanatory. Suspicion is a lower standard than grounds to believe an offence has been committed. Be- cause the suspicion must be reasonable, it is subject to subjective and objective criteria. These criteria must be weighed from the circumstances known to the officer at the time of the demand. Those circumstances should be considered as a whole and not piecemeal. 16 The applicant was operating a motor vehicle that was weaving somewhat when he was stopped by the officer. The applicant had R. v. Miller Stephen D. Brown J. 219

watery eyes. However, the officer detected no smell of alcohol from his breath and he appeared normal. When the officer asked him about his drinking the accused admitted that he had something to drink “a while ago.” This latter response was ambiguous in nature. The officer choose not to ask any more questions. Thus, the officer had no real knowledge when the alcohol was consumed. 17 When the evidence is weighed as a whole, a reasonable person, armed with the knowledge of the officer, would not find the officer’s suspicion that the applicant had alcohol in his body was reasonable. Hence, the officer lacked the basis of a proper ASD demand. 48 Mr. Spettigue did not cite Madam Justice Shelley’s decision, in R. v. Chipchar, [2009] A.J. No. 1058 (Alta. Q.B.) wherein Hnetka was questioned. In that case, Shelley, J. stated at para. 17 that: 17 Ms. Chipchar further relies on a number of cases for the proposition that an ambiguous admission, that does not identify when the alcoholic drinks were consumed, is insufficient for a reasonable suspicion: R. v. Hnetka, 2007 ABPC 197; R. v. Vermette, 1997 Carswell- Sask 837, 1997 CanLII 9648 (Sask. QB). The Crown strongly objects to the suggestion that an officer has an obligation to ask precisely when the drinks were consumed, unless there is a concern about recent consumption. Otherwise, the Crown argues, this leads to the dangerous suggestion that officers have to start doing expert- type calculations to try and determine if alcohol is still in the body. Pinpointing an exact time would be only one part of any analysis necessary to determine whether, and the extent to which, alcohol might still be in a person’s body. I agree with the Crown, and to the extent that either Hnetka and Vermette stand for the proposition suggested by Ms. Chipchar, I respectfully disagree. 49 She goes on to state quite helpfully at para. 19-20: 19 Binnie J. in R. v. Brown, 2008 SCC 18, discussed the difference between mere suspicion and reasonable suspicion (at para. 75): “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P. Sankoff and S. Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123: [T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sin- cerely held subjective belief is insufficient. Instead, to justify such a search, the suspicion must be supported by factual elements 220 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

which can be adduced in evidence and permit an independent judicial assessment. [p. 125] ... What distinguishes “reasonable suspicion” from the higher standard of “reasonable and probable grounds” is merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must exist to support the search. [p. 126] 20 Thus, reasonable suspicion requires only that the belief be one of a number of possible conclusions based on the supporting facts, not a probability. In R. v. Jacques, [1996] 3 S.C.R. 312, Gonthier J., for the majority, held that the “suspicionon reasonable grounds” standard in the Customs Act requires only that there isa possibility that an offence is being committed. Wachowich J.(as he then was) in R. v. Bilodeau (1990), 26 M.V.R. (2d) 170 (Alta. QB), took the same approach in the context of impaired driving, noting (at para. 5): A roadside demand under s. 254(2) only requires the officer to “reasonably suspect” that the accused is operating a motor vehicle with alcohol present in his body in order to make a demand for a sample of an accused’s breath for a roadside analysis. In view of the wording, “reasonably suspects”, the Court is not concerned with whether the officer’s belief is the more probable inference to be drawn from the facts as long as his belief is bona fide. Thus, the smell of alcohol on the accused’s breath, together with a speeding infraction, was sufficient to make a demand. (R. v. Trent, (1979) 47 C.C.C. (2d) 321). See also R. v. Singh (2006), 44 M.V.R. (5th) 285; R. v. Haydl (2003), 58 W.C.B. (2d) 230 (Ont. C.J.) at para.14; and R. v. Tidlund, 2008 ABPC 113 at para. 25. 50 Indeed, Allen J. recognizes the problem in Hnetka in his subsequent decision in R. v. Skwarchuk, [2010] A.J. No. 894 (Alta. Prov. Ct.) where he states at para. 51: 51 The applicant based his submission in part upon my analysis in Hnetka. It is clear that in view of the comments of Justice Shelley in Chipchar that Hnetka is a questionable precedent... 51 In the case at bar, Constable Ellsworth had, in my view, sufficient grounds to make a s. 254(2) demand. He could smell the slight odour of alcohol on her breath and in response to his question to the effect of whether she had consumed any alcohol that evening, she initially denied consumption but later stated that R. v. Miller Stephen D. Brown J. 221

she had consumed a glass of wine. He had also noticed watery eyes. Even absent the information that he had received from dispatch, I am of the view that there were sufficient objective grounds for his subjective belief that she was operating a motor vehicle with alcohol in her system. 52 The endorsement of the Ontario Court of Appeal in R. v. Carson, [2009] O.J. No. 660 (Ont. C.A.), in my view, supports this position. The court stated in that case as follows: 1 THE COURT: — Leave to appeal is granted. With respect, the Sum- mary Conviction Appeal Judge erred in concluding that the investigating officer could not conclude, for purposes of making a roadside demand under s. 254(2) of the Code, that a driver has alcohol in his body by the smell of alcohol on his breath. This court in R. v. Lind- say (1999), 134 C.C.C. (3d) 159 held otherwise. We affirm the correctness of that decision. In any event, here, the officer had more than the smell of alcohol; he also had the respondent’s denial that he had consumed any alcohol. Together, those two factors gave the officer the grounds he needed to make the s. 254(2) demand.

2.2 Was there a violation of s. 10(a) of the Charter? 53 Counsel for Ms. Miller argues that her rights under s. 10(a) of the Charter have been violated. He states that when she was stopped, Constable Ellsworth was by an unmarked car and there was no evidence about cones or other indicators that would let the driver know that this is a R.I.D.E. program. Further, he submits that the failure of Constable Ellsworth to specifically note the comment that he made to Ms. Miller when he stopped her is problematic. 54 Constable Ellsworth testified that it was his practice while participating in a R.I.D.E. program to tell the stopped driver that this is a R.I.D.E. program and then to ask them if they had anything to drink that night. He made no note of this. Mr. Spettigue cites R. v. Domski, [2002] O.J. No. 3544 (Ont. C.J.) in support of this proposition. I disagree. 55 Domski is a decision of Allen, J. that deals with the failure of a police officer to record the bulk of the conversation dealing with the right to counsel. That is quite different from an officer testifying, as we have here, about a common introduction and question delivered to motorists stopped in a R.I.D.E. program. The failure to record that conversation verbatim in his notes, in my view, does not make me doubt his evidence. 56 The decision of Harris, J. in R. v. Malton, [2010] O.J. No. 3106 (Ont. C.J.) at para. 40-43 provides a helpful overview of this proposition. He states as follows: 40 With respect to those items not present in her statement and those not present in Constable Quinonez’ notebook, counsel for Mr. Malton referred me to Justice Duncan’s decision in R. v. Zack, 222 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

[1999] O.J. No. 5747 (O.C.J.), where Justice Duncan stated in paragraph six that: The failure to note these observations is a serious omission and as I had noted to counsel, it cannot be accepted. If it was ever an acceptable explanation in this day of full disclosure, it cannot be an acceptable explanation for a police officer to say, ‘I did not note it because I would remember it.’ It is necessary for the officer to, at least, somewhere, maybe not necessarily in his notebook, put the significant observations that he made. In my view, the absence of the questioned observations in his notebook led to the conclusion that those observations were not, in fact, made at the time but are perhaps, something that over the course of time, the officer has come to believe that he saw. I cannot accept on the balance of probabilities that those observations were made. 41 This case is often cited to support the argument that, “If it is not in the notes, then it did not happen.” Unfortunately for Mr. Malton, that is not what the case said. Justice Duncan himself pointed that out in R. v. Golubentsev, [2007] O.J. No. 4608 (O.C.J.) where he said in paragraph 30: My own decision in R. v. Zack, [1999] O.J. No. 5747 is often relied in support of an argument to the effect, “If it’s not in the notes, it didn’t happen.” That is not what Zack stands for. Rather, in that case, I intended to convey the idea that police officers could not withhold disclosure of crucial evidence on important points by saying, “I didn’t note it because I would remember it.” Zack is a case about disclosure, not note-taking and it speaks to important matters. In that case, the founda- tional observation of unsteadiness on the feet, there was the basis of the opinion of impairment and demand, effectively holding that the police can’t keep cases up their sleeve. It is necessary for the officer to at least somewhere, maybe not necessarily in his notebook, disclose the significant observations that he made. Zack should not be interpreting as holding that police notes must be a comprehensive script of everything that occurred. 42 More recently, Justice Durno of the Superior Court of Justice wrote in paragraph 121. of R. v. Machado, [2010] O.J. No. 387 (Ont. S.C.J.), that: While officers’ notes are provided as part of disclosure, there is no law that I am aware of that an officer must record everything he or she did or saw in their notebook R. v. Miller Stephen D. Brown J. 223

to comply with the Crown’s disclosure obligation. While some have attempted to elevate the judgment in R. v. Zack, [1999] O.J. No. 5747 (O.C.J.) to a statement that if an event or observation is not in the notes that it did not occur, that is not what the judgment says. Indeed there are numerous authorities where events or observations that are noted have been accepted. R. v. Thompson (2000) 151 C.C.C. (3d) 339, Ontario Court of Appeal, R. v. Bennett, [2005] O.J. No. 4035, S.C.J. 43 In the next paragraph, Justice Durno went on to say that he agreed with the comments of Justice Garton, in paragraphs 24 and 25 of R. v. Antoniak, [2007] O.J. No. 4816 (Ont. S.C.J.) where she said that: [24] It should be remembered that an Officer’s notes are not evidence, but are merely a testi- monial aid. Trial judges routinely tell officers on the witness stand that they may use their notes to refresh their memory and that they must also have an independent recollection of the events. To elevate the absence of a notation to a mandatory finding that the event did not occur, would eliminate the officer’s independent recollection from the equation. The notes would become the evidence. [25] The significance of an omission in an officer’s notebook, just like the significance of an inconsistency in a witness’ testimony must be determined by the trier of fact on a case by case basis. 57 Ms. Miller carries the burden of proof on a balance of probabilities on this issue and did not testify or file an affidavit to indicate that she was unaware of the reason for her stop. I have no difficulty in accepting the evidence of Consta- ble Ellsworth on this issue.

2.3 The intertwined issue of delay in the implementational aspect of the Right to Counsel and the “as soon as practicable” requirement 58 The defendant argues that her right to retain and instruct counsel without delay was infringed by the police procedure of completing the prisoner record and the booking process prior to placing her requested call to duty counsel. 59 The Crown succinctly sets out this issue at paragraph 14 of their factum. The defendant was transported to the police detachment for the purpose of breath testing and after initial booking procedures were completed, a call was placed to duty counsel on her behalf. The delay of the call to counsel was as a result of the standard operating procedure, which required immediately upon entering the station the completion of the prisoner report for any person in custody entering the 224 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

station for safety purposes. Officer Ellsworth testified this procedure usually takes between 10 to 30 minutes, depending upon the issues raised. In this matter, it took from 10:33 p.m. to 10:58 p.m, which included a bathroom break from 10:49 to 10:51 p.m. 60 As the Crown states in paragraph 15 of its factum, the Charter does not require calls to counsel be made immediately but within a reasonable time. The police obligation under section 10(b) of the Charter is defined to mean the police must hold off eliciting evidence until reasonable opportunity to consult counsel has been afforded. 61 In R. v. Manninen, [1987] 1 S.C.R. 1233 (S.C.C.) at para. 21-23, Lamer, J. stated that where an accused has asserted an interest in exercising the right to counsel, the police obligation is to provide a reasonable opportunity to exercise that right and to cease questioning or attempting to obtain evidence until the opportunity has been afforded. Mr. Spettigue submits that there is no justification for waiting from the time of the arrest until 43 minutes later to implement the call to duty counsel. 62 He states that acting Sergeant Hill only has to fill out two pages of the prisoner record, and that Ms. Miller was very cooperative and showed no signs of impairment. She was a model prisoner and wasn’t violent, upset, or displaying signs of mental illness. He states that she was compliant and cooperative. He further submits that there were no concerns about safety or the loss of evidence and that there was no reason for the police to wait until the completion of the booking process before they called duty counsel. In effect, Mr. Spettigue argues that the police standard operating procedure in this case trumped Ms. Miller’s right to consult with counsel without delay. 63 Mr. Dibski points out that Ms. Miller was upset as she had just had a major argument with her boyfriend. On top of that, she had been arrested for over 80. As he states, things were going from bad to worse for her that evening and it was incumbent upon the police to assure themselves that they had gathered all the information necessary to be communicated to duty counsel and had satisfied themselves that she would not do something drastic like trying to hang herself with the telephone cord before they facilitated communication with duty counsel. 64 Mr. Dibski further submits that the police did hold off their investigation in that they did not obtain the Intoxilyzer samples until after she had consulted with duty counsel. 65 I agree that in the circumstances of this case, it was not unreasonable for the police to complete the booking process prior to placing the call to duty counsel. 66 Regarding the “as soon as practicable” submissions made by Mr. Spettigue, he states that the period from the arrest at 10:15 p.m. until the commencement of the second sample of breath at 11:53 p.m. does not meet the requirement of R. v. Miller Stephen D. Brown J. 225

being as soon as practicable and, therefore, the Crown should be deprived of the ability to rely on the presumption of identity. 67 Mr. Spettigue cites several instances of delay that he submits are unreasonable or are unexplained. For instance, the approximate five minute interval that was taken to facilitate the defendant’s transfer to a caged cruiser was unnecessary. He argues that the police should not be using unmarked cruisers in R.I.D.E. programs that are not equipped to safely transport prisoners. I disagree. 68 In my view, it was necessary for officer safety purposes to transport Ms. Miller in a secure cruiser. She was not searched, because there was no female officer at the scene, and in those circumstances, it was entirely reasonable for the police to require her to be put into a police car with a secure divider prior to transport to the station. The five minutes that it took to complete this was reasonable in light of the fact that there was a major snowstorm that evening. 69 Once Ms. Miller arrives at the police station at 10:33 p.m., there exists a video record of the actions of Constable Ellsworth and acting Staff Sergeant Hill. A careful review of this video shows that at all times, the officers were completing paperwork and conducting the booking process. There is a two minute period of time when Ms. Miller is out of sight as she is taken to the washroom at her request, but the rest of the time is recorded on the video. 70 She is absent on the video between 11:12 p.m. and 11:17 p.m. while she is consulting with duty counsel. From 11:17 p.m. until 11:26 p.m., she is waiting on the bench in the booking room until Constable Moore, the qualified Intox- ilyzer technician, retrieves her and takes her into the Intoxilyzer room for the breath tests. 71 Constable Carey Moore was also at the R.I.D.E. spot check and drove the defendant and Constable Ellsworth to the station. He did not testify at the trial but we see him arriving at the station at about 10:33 p.m. and proceeding into what Constable Ellsworth describes as the breath room. 72 On a couple of occasions, Constable Moore comes back into the booking room to examine documents and, on one occasion, escorts Ms. Miller to the washroom. Other than that, he is in the breath room presumably preparing the Intoxilyzer machine to accept suitable samples of the defendant’s breath for analysis. 73 Acting Staff Sergeant Hill does not arrive in the booking room to commence the booking procedure until 10:40 p.m., some seven minutes after Ms. Miller’s arrival. No explanation is given for this period. 74 As well, after Ms. Miller completes her call with duty counsel at 11:17 p.m., it is not until 11:27 p.m. that she enters the breath room with Constable Moore. 75 In my view, the only unexplained delay in the taking of these tests is the period of 17 minutes, being comprised of the unexplained delay in commencing the booking process of some 7 minutes in waiting for acting Staff Sergeant Hill 226 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

to arrive, and the 10 minutes from the completion of the call to duty counsel until Constable Moore received custody. 76 Acting Staff Sergeant Hill was not asked for the reason for the delay in him arriving into the booking room. Neither was he cross-examined with respect to the time that he arrived in the booking room from the time that he became aware that there was a prisoner in the booking room. Therefore, I am reluctantly including this 7 minutes in the equation of the period of unexplained delay. 77 Mr. Spettigue relies on the decision of Feldman, J. in R. v. Muthulingam, [2008] O.J. No. 4107 (Ont. C.J.) which was a case where the record was silent on a 28 minute period of time during which the technician was ready to receive the accused and the contacting of duty counsel. 78 He submits that in that case, Feldman, J. had before him evidence from the technician as to when he was ready to receive a sample. He suggests that there is no evidence in this case as to when the technician was ready to receive the sample, and he further stated in submissions that there is no evidence as to when the technician was contacted and when he arrived at the station. 79 Mr. Spettigue overlooked the point that Constable Moore was the officer who drove Ms. Miller to the station and, further, we see him arriving on the booking video and entering the breath room shortly after Ms. Miller arrives. Al- though it is true that he did not testify at the trial and the Crown is relying solely on the certificate of analysis, it is evident that he was in the breath room for the majority of the time that Ms. Miller was waiting. 80 I can take judicial notice of the fact that the Intoxilyzer machine must be prepared for receiving a sample and by seeing Constable Moore come in and out of the booking room perusing the paperwork that Constable Ellsworth was working on, the reasonable inference was that he was preparing the machine for use. 81 He could not have taken a sample until she had completed her consultation with duty counsel at 11:16 p.m. The unexplained time from 11:16 p.m. until he receives her at 11:26 p.m. requires explanation. 82 I acknowledge that the burden of proof beyond a reasonable doubt lies with the Crown to prove that the tests were taken as soon as practicable. 83 Section 258(1)(c)(ii) of the Criminal Code is part of a procedure to enable proof of the concentration of alcohol in the accused’s blood for inter alia proving the “over 80” offence. Section 258(1)(c)(ii) provides that where the breath samples were taken “as soon as practicable” after the times when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken then, provided certain other conditions are fulfilled, the prosecution may rely on the presumption of identity. This presumption deems the results of the breath tests to be proof of the accused’s R. v. Miller Stephen D. Brown J. 227

blood alcohol level at the time of the offence, absent proper evidence to the contrary. 84 As Mr. Justice Rosenberg stated in reviewing the state of the law in R. v. Vanderbruggen, [2006] O.J. No. 1138 (Ont. C.A.) at paras. 12-14, the phrase “as soon as practicable” means: 12 That leaves the question that is at the heart of this appeal — the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. See R. v. Phillips (1988), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen (1988), 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, [1998] O.J. No. 4362 (C.A.). 13 In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The “as soon as practicable” requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that — in all the circumstances — the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a de- tailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7. 14 Whether the samples were taken as soon as practicable in this case was an issue of fact for the trial judge. See R. v. Lightfoot (1980), 4 M.V.R. 238 (Ont. C.A.) andR. v. Renda, [2005] O.J. No. 1453 (C.A.). In my view, the Crown adduced sufficient evidence before the trial judge from which he could conclude that the police acted reasonably and that the breath samples were taken as soon as practicable in all the circumstances. In this case, there was an approximate delay of one hour and fifteen minutes from the time of the offence to the taking of the first sample. The following evidence was offered as explanation for this delay: time was taken in arresting the appellant, reading him his rights, transporting him to the station, waiting for the technician to arrive, searching the appellant, conveying the information as to the grounds for the breath demand and waiting for the technician to prepare the breathalyzer (Foley was “playing around” with the machine). There was no evidence that either the arresting 228 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

officer or the technician acted unreasonably. The record only shows that they were attentive to their duties and to the need to administer the tests to the appellant as soon as practicable. There was no evidence that the officers gave unreasonable priority to any other task. 85 As found in Vanderbruggen, supra, I find in the case at bar that there was no evidence that either the arresting officer, booking Sergeant, or the Intoxilyzer technician acted unreasonably. It appears that all officers were attentive to their duties and to the need to administer the tests to the defendant as soon as practicable. There was no evidence that the officers gave unreasonable priority to any other task. 86 Further, I find no merit in Mr. Spettigue’s argument that by failing to call the technician, and by relying on certificate evidence, the Crown must bear some penalty for not calling Constable Moore to explain the precise moment that the Intoxilyzer was ready to receive a sample. As well, I reject Mr. Spettigue’s argument that because the interval between the completion of the first test and the commencement of the second test was 22 minutes and therefore there is a further unexplained 7 minute delay because the minimum interval between tests is 15 minutes, as set out in s. 258(1)(c)(ii), that this unexplained 7 minute delay should, when added to the other 17 minutes of unexplained delay be given much weight in the equation. If that were the case, the Crown would be effectively precluded from ever relying on certificate evidence when there exists more than a minimum interval between the taking of the first and second sample of breath. While I acknowledge that a lengthy period between the taking of the first and second samples may require an explanation, a shorter period of 5 to 7 minutes does not. Taking even that delay into account, I still hold that the tests were taken as soon as practicable. 87 The law requires that the tests be taken within a reasonably prompt time. Durno J. observed in R. v. Price, 2010 ONSC 1898 (Ont. S.C.J.) at para. 16: It must be remembered that focusing on one aspect of the total time is not the appropriate way to determine if the tests were taken as soon as practicable. Rather, it is the entire time period that must be examined. 88 In this case, although the unexplained 17 minutes - or on Mr. Spettigue’s calculations, 24 minutes - may be problematic for the Crown, when viewing the entire period from the arrest until the completion of the Intoxilyzer tests, I am of the view that the Crown has met the onus of proving beyond a reasonable doubt that the tests were taken as soon as practicable.

3.0 Conclusion 89 Exhibit 2, being the certificate of analysis, will not be excluded and the Crown is entitled to rely upon the presumption in s. 258(1)(c)(ii) of the Criminal Code. 90 The defendant will be found guilty of the offence under s. 253(1)(b). Accused convicted. R. v. Dolezsar 229

[Indexed as: R. v. Dolezsar] Her Majesty the Queen and Nicole Dolezsar Saskatchewan Provincial Court D.E. Labach Prov. J. Judgment: October 12, 2010 Docket: None given, 2010 SKPC 142 Lori Chambers for Crown Ron Pich´e for Accused Criminal law –––– Offences — Driving/care and control with excessive alcohol — Presumption of alcoholic content at time of offence — Sample taken as soon as practicable –––– Officer noticed accused’s vehicle crossing yellow line four times over distance of 1.2 kilometres — Accused swerved into oncoming traffic and officer stopped her — Officer noticed smell of alcohol coming from car and from accused — Officer noticed accused’s eyes were bloodshot — Accused admitted to having had two drinks — Accused was arrested at 11:42 p.m. and placed in police car — Officer then dealt with passenger and returned to car where he gave accused warnings about her rights including right to counsel and made breath demand — Officer and accused arrived at police station at 12:16 a.m. — Accused exercised her right to counsel until 12:35 a.m. — Accused gave breath samples at 12:46 a.m. and 1:07 a.m. — Technician observed accused swaying while he administered tests — Officer did not see accused have slurred speech, flushed face or problems with co-ordination — Accused was charged with impaired driving and driving with excessive blood alcohol level — Accused convicted of driving with excessive blood alcohol level and acquitted of impaired driving — Officer had obligation to make breath demand as soon as practicable but instead of doing so he spent unspecified amount of time dealing with passenger — Court could not guess as to when demand was made and could not say whether demand was made as soon as practicable — Officer should have dealt with accused first — Crown was not precluded from using breath samples — Presumption of alcohol content at time of offence in s. 258(1)(c) of Criminal Code was not voided due to officer’s failure to make demand as soon as practicable — Crown could use blood alcohol readings to prove by viva voce evidence that accused’s blood alcohol level was excessive at time of driving — If accused wanted to challenge admissibility of breath samples based on failure to make demand as soon as practicable she must make Charter application as required for other requirements in s. 254(3) of Code — Section 258(1)(c) required demand but not lawful demand — Challenge to s. 258(1)(c) must be made directly not through attack on s. 254(3). Criminal law –––– Offences — Impaired driving/care or control — Elements — Im- pairment –––– Officer noticed accused’s vehicle crossing yellow line four times over distance of 1.2 kilometres — Accused swerved into oncoming traffic and officer stopped her — Officer noticed smell of alcohol coming from car and from accused — Officer noticed accused’s eyes were bloodshot — Accused admitted to having had two drinks — Accused was arrested at 11:42 p.m. and placed in police car — Officer then dealt with passenger and returned to car where he gave accused warnings about her rights including 230 MOTOR VEHICLE REPORTS 4 M.V.R. (6th) right to counsel and made breath demand — Officer and accused arrived at police station at 12:16 a.m. — Accused exercised her right to counsel until 12:35 a.m. — Accused gave breath samples at 12:46 a.m. and 1:07 a.m. — Technician observed accused swaying while he administered tests — Officer did not see accused have slurred speech, flushed face or problems with co-ordination — Accused was charged with impaired driving and driving with excessive blood alcohol level — Accused convicted of driving with excessive blood alcohol level and acquitted of impaired driving — Officer had reasonable grounds to make breath demand — Evidence was not sufficient to prove accused was impaired beyond reasonable doubt — Accused showed few overt signs of impairment. Cases considered by D.E. Labach Prov. J.: R. v. Allin (2003), 2003 SKPC 58, 2003 CarswellSask 300, 233 Sask. R. 73, [2003] S.J. No. 289 (Sask. Prov. Ct.) — referred to R. v. Bernshaw (1994), 8 M.V.R. (3d) 75, 53 B.C.A.C. 1, 87 W.A.C. 1, 26 C.R.R. (2d) 132, 35 C.R. (4th) 201, 176 N.R. 81, [1995] 3 W.W.R. 457, 1994 CarswellBC 3038, 1994 CarswellBC 3039, 95 C.C.C. (3d) 193, [1995] 1 S.C.R. 254, EYB 1995-66965, [1994] S.C.J. No. 87 (S.C.C.) — followed R. v. Billette (2001), 2001 SKQB 150, 2001 CarswellSask 258, 205 Sask. R. 79, 13 M.V.R. (4th) 192, [2001] S.J. No. 227 (Sask. Q.B.) — referred to R. v. Carriere (2010), 2010 CarswellSask 563, 2010 SKPC 118, [2010] S.J. No. 499 (Sask. Prov. Ct.) — considered R. v. Carter (1981), 9 Sask. R. 1, 1981 CarswellSask 2, 10 M.V.R. 187, 59 C.C.C. (2d) 450, [1981] S.J. No. 1337 (Sask. C.A.) — followed R. v. Catling (2001), 93 Alta. L.R. (3d) 190, 14 M.V.R. (4th) 143, [2001] 8 W.W.R. 716, 84 C.R.R. (2d) 116, 2001 ABPC 98, 2001 CarswellAlta 761, 295 A.R. 93, [2001] A.J. No. 724 (Alta. Prov. Ct.) — considered R. v. Chorney (2008), [2009] 3 W.W.R. 524, 175 C.R.R. (2d) 44, 452 A.R. 1, 2008 ABPC 206, 2008 CarswellAlta 967, 70 M.V.R. (5th) 286, 99 Alta. L.R. (4th) 375, [2008] A.J. No. 794 (Alta. Prov. Ct.) — considered R. v. Deruelle (1992), 38 M.V.R. (2d) 1, 139 N.R. 56, 15 C.R. (4th) 215, 75 C.C.C. (3d) 118, [1992] 2 S.C.R. 663, 114 N.S.R. (2d) 1, 313 A.P.R. 1, 94 D.L.R. (4th) 638, 1992 CarswellNS 16, 1992 CarswellNS 354, [1992] S.C.J. No. 69, EYB 1992-67392 (S.C.C.) — considered R. v. Ealey (2010), 2010 SKPC 56, 2010 CarswellSask 390, [2010] S.J. No. 357 (Sask. Prov. Ct.) — referred to R. v. Ference (2010), 2010 CarswellAlta 599, 2010 ABPC 99, [2010] A.J. No. 357 (Alta. Prov. Ct.) — referred to R. v. Forsythe (2009), 251 Man. R. (2d) 90, 478 W.A.C. 90, 91 M.V.R. (5th) 7, [2010] 4 W.W.R. 90, 2009 MBCA 123, 2009 CarswellMan 570, 250 C.C.C. (3d) 90 (Man. C.A.) — considered R. v. Forsythe (2010), 2010 CarswellMan 307, 2010 CarswellMan 308, [2010] S.C.C.A. No. 60 (S.C.C.) — referred to R. v. Fyfe (2007), 2007 SKPC 56, 2007 CarswellSask 313, 297 Sask. R. 258, [2007] S.J. No. 305 (Sask. Prov. Ct.) — referred to R. v. Gilchrist (2008), 2008 SKPC 142, 2008 CarswellSask 715, 325 Sask. R. 141, [2008] S.J. No. 665 (Sask. Prov. Ct.) — referred to R. v. Huot (2001), (sub nom. R. v. Huot (No. 3)) 209 Sask. R. 171, 2001 CarswellSask 391, [2001] S.J. No. 356 (Sask. Prov. Ct.) — followed R. v. Dolezsar 231

R. v. Landes (1997), 161 Sask. R. 305, 1997 CarswellSask 701, [1997] S.J. No. 785 (Sask. Q.B.) — considered R. v. Lifchus (1997), 118 C.C.C. (3d) 1, 216 N.R. 215, 150 D.L.R. (4th) 733, 1997 Car- swellMan 392, 1997 CarswellMan 393, 9 C.R. (5th) 1, 118 Man. R. (2d) 218, 149 W.A.C. 218, [1997] 3 S.C.R. 320, [1997] 10 W.W.R. 570, [1997] S.C.J. No. 77 (S.C.C.) — followed R. v. Middlebrook (1995), 1995 CarswellAlta 1194, [1995] A.J. No. 975 (Alta. Prov. Ct.) — distinguished R. v. Pinchak (2010), 2010 ABPC 44, 2010 CarswellAlta 300, [2010] A.J. No. 156 (Alta. Prov. Ct.) — referred to R. v. Radcliffe (2008), 91 Alta. L.R. (4th) 318, 450 A.R. 108, 65 M.V.R. (5th) 141, 2008 CarswellAlta 686, 2008 ABQB 6, [2008] A.J. No. 575 (Alta. Q.B.) — referred to R. v. Rilling (1975), [1976] 2 S.C.R. 183, 24 C.C.C. (2d) 81, 1975 CarswellAlta 81, 1975 CarswellAlta 140, 31 C.R.N.S. 142, [1975] 6 W.W.R. 626, 5 N.R. 327, 60 D.L.R. (3d) 128, [1975] S.C.J. No. 72 (S.C.C.) — considered R. v. Showell (1971), 15 C.R.N.S. 305, 4 C.C.C. (2d) 252, 1971 CarswellOnt 14, [1971] 3 O.R. 460, [1971] O.J. No. 1657 (Ont. H.C.) — followed R. v. Smith (2009), 2009 SKQB 277, 2009 CarswellSask 418, 336 Sask. R. 38, [2009] S.J. No. 385 (Sask. Q.B.) — referred to R. v. Stellato (1993), 1993 CarswellOnt 74, 18 C.R. (4th) 127, 78 C.C.C. (3d) 380, 61 O.A.C. 217, 12 O.R. (3d) 90, 43 M.V.R. (2d) 120, [1993] O.J. No. 18 (Ont. C.A.) — considered R. v. Stellato (1994), [1994] 2 S.C.R. 478, 1994 CarswellOnt 1159, 3 M.V.R. (3d) 1, 72 O.A.C. 140, 31 C.R. (4th) 60, 90 C.C.C. (3d) 160, 18 O.R. (3d) 800, 168 N.R. 190, 1994 CarswellOnt 84, EYB 1994-67659, [1994] S.C.J. No. 51 (S.C.C.) — referred to R. v. Wright (2008), 2008 CarswellAlta 1044, 2008 ABPC 126, [2008] A.J. No. 852 (Alta. Prov. Ct.) — considered R. v. Young (1981), 34 A.R. 214, 1981 CarswellAlta 141, 11 M.V.R. 301, [1981] A.J. No. 657 (Alta. Q.B.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 8 — referred to s. 9 — referred to s. 24(2) — referred to Criminal Code, R.S.C. 1970, c. C-34 s. 223(1) — referred to s. 224A(1)(c) [en. 1968-69, c. 38, s. 16] — referred to Criminal Code, R.S.C. 1985, c. C-46 s. 253 — referred to s. 253(1)(a) — considered s. 253(1)(b) — pursuant to s. 254 — referred to s. 254(3) — considered s. 254(3)(a)(i) — considered s. 258 — referred to 232 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

s. 258(1)(c) — considered s. 258(1)(c)(ii) — considered s. 258(1)(c)(iii) — considered s. 258(1)(c)(iv) — considered

TRIAL of accused on charges of impaired driving and driving with excessive blood alcohol level.

D.E. Labach Prov. J.: Introduction 1 The accused, Nicole Dolezsar, is charged on Information #24375047 that she: (a) On or about the 7th day of July, 2009 at or near Saskatoon in the Province of Saskatchewan while her ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle contrary to section 253(1)(a) of the Criminal Code. (b) On or about the 7th day of July A.D. 2009 at or near Saskatoon in the Province of Saskatchewan having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle contrary to Section 253(1)(b) of the Criminal Code. 2 The trial on this matter took place on June 16, 2010. At the commencement of trial Defence Counsel advised that they anticipated making an argument that the accused’s section 8 and section 9 Charter rights were violated and the evidence obtained as a result of those Charter violations should be excluded pursuant to s. 24(2). It was their view that the officer who stopped the accused on the day in question did not have reasonable grounds to make a breath test demand pursuant to section 254(3) of the Code. 3 After hearing evidence from Constable Thibodeau, the arresting officer in this case, the court entered into a voir dire at the request of Defence Counsel to deal with these Charter issues. By consent of both parties, Constable Thibodeau’s evidence, both examination-in-chief and cross-examination, was applied to the voir dire. The Crown called no further evidence on the voir dire. 4 The Defence called two witnesses on the voir dire: the accused, Nicole Dolezsar and the passenger in the vehicle at the time it was stopped, Paige Walsh. After hearing argument on the voir dire, I rendered an oral decision dismissing the Defence application. I was satisfied that Constable Thibodeau had the requisite reasonable grounds upon which to make a breath demand on the accused. The Defence did not prove either Charter breach on a balance of probabilities and therefore I did not have to deal with the question of exclusion of evidence. R. v. Dolezsar D.E. Labach Prov. J. 233

5 Following my decision, exhibit P-1 from the voir dire, the Certificate of Analyses, was entered as a full exhibit on the trial proper. At that time I was advised by both Crown and Defence that they agreed that the evidence from the voir dire could be applied to the trial proper. Since Constable Thibodeau’s testimony had all been given in the course of the trial proper and applied to the voir dire, there was no need to apply his evidence to the trial. The only evidence on the voir dire that was not already part of the trial proper was the Defence evidence. Based on counsels’ agreement it appears that they intended to apply the accused’s testimony and the testimony of Ms. Walsh on the voir dire to the trial proper. 6 Crown called no other evidence on the trial proper and neither did the De- fence. Defence counsel then advised that in the course of the trial an issue had arisen on whether the breath demand was made as soon as practicable. They wanted an adjournment to provide the Court with some case law on that point. As a result, closing argument on the trial proper was adjourned to June 25, 2010 and then later to August 17, 2010. 7 On August 17, 2010, in the course of their closing argument, I asked De- fence counsel about their view of the impact of certain portions of the Crown cross-examination of the accused and Ms. Page on their arguments. Defence counsel advised that I could not take their witnesses’ evidence on the voir dire into consideration on the trial proper because they had not agreed to that evidence being applied to the trial proper. According to counsel, he had only agreed that the Crown evidence from the voir dire could go in on the trial proper and if he left the Court with a different view, it was in error. 8 It was Crown’s view that all the evidence from the voir dire, both Crown and Defence, was going in by agreement and as such, I could consider any evidence given by the accused or Ms. Walsh in my deliberations. 9 It is clear to me that Defence forgot that we did not enter into a voir dire until after the Crown’s only witness, Constable Thibodeau, had given his testimony on the trial proper. As such, he was confused in his understanding as to what was to be applied from the voir dire to the trial. In the normal course, only the Crown evidence from a voir dire would be applied to the trial proper unless Defence specifically consented otherwise. In this case, although Defence counsel inadvertently agreed to defence evidence on the voir dire going in on the trial proper I do not believe he meant to do this. 10 As such, I am going to resolve this issue in favour of the Defence. I will consider the only evidence on the trial proper to be that of Constable Thibodeau and exhibit P-1, the Certificate of Analyses. I reach this conclusion only because in this case there is no prejudice to the Crown by proceeding in this fashion. In the future, counsel would be well advised to pay more attention to the proceedings. It is not for the Court to second guess counsel’s intentions. Only counsel know their strategies at a trial. Care should be taken by both Crown and Defence 234 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

as to what is agreed to as once something is agreed upon, both parties should be able to rely on that agreement as they formulate their strategies and arguments in their respective cases. 11 In closing argument, counsel for the accused argued that the breath demand made by Constable Thibodeau was not made as soon as practicable therefore the Crown is precluded from relying on the presumption in section 258(1)(c) of the Criminal Code. He also argued that the evidence was not sufficient to prove that the accused was impaired beyond a reasonable doubt. The Crown took the position that the demand was made as soon as practicable but in any event, required a Charter application . Since Defence made no Charter application, even if I found that the breath demand was not made as soon as practicable, the Crown could still rely on the presumption. They were also of the view that the evidence was more than sufficient to satisfy the Court that the accused was impaired when Constable Thibodeau noticed her driving.

Facts 12 On the evening of July 7, 2009, Constable Jason Thibodeau was on general patrol duties. He had been an RCMP officer since October, 2006 and was stationed at Warman detachment. At 11:38 p.m., he was operating a marked patrol car heading towards Saskatoon on Highway 11. As he reached the city limits and passed Marquis Drive, he noticed a lot of vehicles exiting on to the highway. Apparently there was a concert at Credit Union Centre that evening and it had just let out. 13 Highway 11 is a major highway that is a direct route into the city of Saska- toon. It is a double lane highway with a median separating the northbound and southbound lanes. After Constable Thibodeau passed southbound through the intersection of Marquis Drive and Highway 11, he noticed a silver Grand Am travelling immediately in front of him. As he followed this vehicle, he noticed that it veered over the yellow line into the adjoining lane of traffic on four separate occasions over a 1.2 kilometre distance. After the third occasion he decided to pull this vehicle over. Before he could do that, the Grand Am went over the yellow line a fourth time and almost hit a vehicle travelling in the adjoining lane. At this point, Constable Thibodeau activated his lights and siren. 14 The Grand Am did not pull over right away. Instead, the driver kept driving for another 30 to 40 seconds finally taking the Circle Drive off ramp and pulling into the parking lot at the Travelodge Hotel. 15 Constable Thibodeau pulled his police cruiser in behind the Grand Am and attended to the driver’s side of the car. It was 11:40 p.m. Nicole Dolezsar, the accused, was in the driver’s seat and a female friend was in the passenger seat. 16 He asked the accused for her driver’s license and registration. While waiting for her to provide them he noticed an odour of beverage alcohol coming from the vehicle. He did not see any alcohol in the vehicle and the accused provided R. v. Dolezsar D.E. Labach Prov. J. 235

her documents without fumbling. When she spoke to him, he could smell beverage alcohol coming from her. He also noted that her eyes appeared bloodshot. 17 He asked the accused how much she had consumed. She responded “nothing” so he asked her a second time. This time she answered “two”. He took that to mean she had had two drinks of beverage alcohol. 18 Based on her driving and the signs of impairment he noted, he arrested the accused for impaired driving at 11:42 p.m. He asked her to get out of her car, but she did not initially comply. Eventually she did get out and he placed hand- cuffs on her and escorted her back to his patrol car. 19 He put the accused in the back of the patrol car and then returned to the Grand Am to deal with the passenger. She was somewhat rude to him but appropriate arrangements were eventually made for her to get a ride. 20 It was not until he had finished dealing with the passenger that he returned to his police vehicle and gave the accused her right to counsel, police warning and breath demand. He did not make note of the times he read these to the accused. She gave appropriate answers to his questions in relation to her rights and in his view she understood what he was telling her. 21 Constable Thibodeau then left with the accused for the Warman RCMP detachment, some 25 kilometres away. He arrived at the detachment at 12:16 a.m. not having made any stops. When asked in cross-examination why he went to Warman detachment and not to Saskatoon detachment, he advised that Warman was his home detachment and he thought it might have been a farther trip to go to the Saskatoon detachment. 22 At the detachment, he allowed the accused to contact her father to get the name and contact number for their family lawyer. Once that was done, Consta- ble Thibodeau put her in touch with that lawyer and gave her privacy in which to get her legal advice. She finished talking to her lawyer at 12:35 a.m. and when asked, she advised Constable Thibodeau that she was satisfied with her lawyer call and that she did not want to call another lawyer. 23 He then turned the accused over to Constable Holliday, the breath technician. He observed the testing process and while watching the accused in the Intoxilyzer room, noted that she appeared to be swaying back and forth slightly. The accused did provide two proper samples. The first sample was taken at 12:46 a.m. and the reading was .12 and the second was taken at 1:07 a.m. and the reading was .11. 24 After the tests were completed, Constable Thibodeau prepared the appropriate paperwork, served the accused with her copy of the Certificate of Analyses and then drove her back to the Travelodge Hotel where she was released to her brother. 25 In his dealings with her, he thought that she was rude with him. He gave her no reason to be rude and treated her respectfully. 236 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

26 In cross-examination, Constable Thibodeau admitted that the accused did not have slurred speech or a flushed or reddish face. She had no trouble getting out of her vehicle, walking over to the police car and getting into it and no other problems with motor skills.

Issues a) Is the evidence sufficient to prove beyond a reasonable doubt that the breath demand was made as soon as practicable? b) If the breath demand was not made as soon as practicable is the Crown precluded from relying on the presumption in section 258(1)(c) of the Criminal Code? c) Is the evidence sufficient to prove beyond a reasonable doubt the offence of impaired driving contrary to s. 253(a) of the Criminal Code?

Analysis a) Is the evidence sufficient to prove beyond a reasonable doubt that the breath demand was made as soon as practicable? 27 In R. v. Chorney (2008), 70 M.V.R. (5th) 286 (Alta. Prov. Ct.), Judge Allen of the Provincial Court of Alberta, reviewed existing case law regarding the meaning of “as soon as practicable” in the context of section 254(3). At paras. 37 and 38 he said: [37] The determination whether the demand is made “as soon as practicable” is fact driven. “As soon as practicable” does not mean “as soon as possible”; rather the phrase means “within a reasonably prompt time in the circumstances”. In meeting that standard the whole chain of events is considered and the Crown is not required to account for every minute the accused is in custody. The touchstone in determining whether the sample was taken “as soon as practicable” is “whether the police were acting reasonably”. Subjective and objective matters are explored in meeting the standard. In some circumstances, some explanation may be needed for apparent delay. This evidence can be in the form of direct testimony or from inferences to be drawn from the evidence presented. [38] In most circumstances, the police read the section 254(3) demand almost concurrently when they arrest detainees, or shortly after providing detainees with Charter advice related to counsel, or a caution related to silence. This is the preferable practice. 28 In R. v. Wright, [2008] A.J. No. 852 (Alta. Prov. Ct.), Judge Semenuk reviewed a number of cases that discussed what was as soon as practicable and what was not. Of these cases, he concluded at para. 41 that: [41] In my review of the above-mentioned authorities, each case is fact specific. As well, the Court in making its determination is not fix- R. v. Dolezsar D.E. Labach Prov. J. 237

ated so much on the length of the delay in making the breath demand as it is with the reason for the delay. For instance, a lengthy delay may be justified where the investigating officer is dealing with an injury accident. A very short delay may not be justified, if the investigating officer decides to make a personal phone call. 29 In R. v. Carriere, [2010] S.J. No. 499 (Sask. Prov. Ct.), Judge Kalmakoff addressed whether breath tests were taken as soon as practicable within the meaning of section 258(1)(c). While section 258 serves a different purpose than section 254, the treatment of the phrase is identical in both sections. He put it aptly at para. 58 when he said: [58] “As soon as practicable” is a standard which must be applied with reason. It does not mean as soon as possible, but as soon as can reasonably be expected. The Crown is obligated to demonstrate, in all the circumstances, that the breath samples were taken within a reasonably prompt time. There is no requirement that the Crown account for what happened every minute that the accused was in custody prior to the tests being taken, but as long as the delay can be explained to the satisfaction of the trial judge, the Crown is entitled to rely on the presumption in section 258(1)(c). This requires that there be some evidence from which the Court can infer an acceptable reason for the delay. A significant delay which is completely unexplained provides no evidentiary basis upon which to find the delay is reasonable. 30 It is obvious that a common sense approach is preferable to a parsing of each minute that a police officer neglects to make a demand or delays giving a breath test. The Court must look at all the evidence and determine if the breath demand was made or the breath tests were taken within a reasonably prompt time in the circumstances. See also R. v. Carter, [1981] S.J. No. 1337 (Sask. C.A.) at para. 8. 31 In the present case, Constable Thibodeau testified to the following time line: 11:38 p.m. - he first noticed the accused’s vehicle 11:40 p.m. - he pulls the accused’s vehicle over 11:42 p.m. - he arrests the accused for impaired driving 12:16 a.m. - he arrives at the Warman RCMP detachment with the accused 12:35 a.m. - the accused finishes speaking with legal counsel 12:46 a.m. - the accused provides her first breath sample 01:07 a.m. - the accused provides her second breath sample 32 Defence Counsel took issue with the thirty-four minutes from the time the officer arrested the accused until he arrived at the Warman RCMP detachment. He acknowledged that Constable Thibodeau made the breath demand somewhere between arresting the accused at 11:42 p.m. and arriving at the detach- 238 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

ment at 12:16 a.m., but without a specific time the Crown cannot prove that the demand was made as soon as practicable. 33 In that time frame, Constable Thibodeau spent some time dealing with the accused’s passenger, he read the accused her right to counsel, police warning and breath demand and he drove from the Travelodge Hotel to Warman RCMP detachment. Unfortunately, he made no notes about what times he did these things and short of advising the Court that they all occurred between 11:42 p.m. and 12:16 a.m., he could not say much more. 34 In R. v. Huot (2001), 209 Sask. R. 171 (Sask. Prov. Ct.), Judge Kolenick addressed the issue of whether breath samples were taken as soon as practicable. While he was dealing with the phrase in the context of section 258, his comments at para. 11 are just as applicable to the present case: [11] It is apparent that the issue of whether breath samples were taken as soon as practicable, requires the peace officer to keep reasonable track of the times of the key matters as they occurred during the course of the investigation. Otherwise, the Court is unable to put the consideration of any apparent delay in its proper context. 35 While thirty-four minutes is not in and of itself an egregious delay, the question is when did the officer make the breath demand on the accused and what, if anything occurred in the interim. In this case, Constable Thibodeau candidly admitted that after arresting the accused and placing her in the back of his police cruiser he went back to the accused’s vehicle and spent some time dealing with her passenger. It was not until he finished dealing with the passenger that he went back to his patrol cruiser and read the accused the breath demand. 36 Once Constable Thibodeau arrested the accused for impaired driving, if his intention was to take her for breath testing, then he had an obligation to make the section 254(3) demand at that time or after providing the accused with her rights and police warning in order to comply with the “as soon as practicable” requirement. Instead, he spent an unknown amount of time dealing with the passenger. Had he spent one or two minutes with the passenger and then returned to his patrol car to give the accused a breath demand, that may survive the Court’s scrutiny. But he could just as easily have spent ten minutes, fifteen minutes, twenty minutes or more dealing with the accused’s passenger before he returned to his patrol car. The Court is left in the unenviable position of having to guess and that is not appropriate. It is not for the Court to speculate about this time line. See R. v. Billette, [2001] S.J. No. 227 (Sask. Q.B.) at para. 22; R. v. Smith, [2009] S.J. No. 385 (Sask. Q.B.) at para. 5. 37 The officer should have finished dealing with the accused first and then dealt with the passenger. He did not. Since there is no evidence establishing when he made the breath demand on the accused, the Court can only speculate on whether his delay in dealing with the passenger was reasonable in the circumstances. That is not appropriate. In the absence of that evidence I cannot be satis- R. v. Dolezsar D.E. Labach Prov. J. 239

fied beyond a reasonable doubt that the Crown has proven that the breath demand in this case was made as soon as practicable.

b) If the breath demand was not made as soon as practicable is the Crown precluded from relying on the presumption in section 258(1)(c) of the Criminal Code? 38 The Crown takes the position that even if the section 254(3) breath demand was not made as soon as practicable, they are not precluded from relying on the presumption in section 258 of the Criminal Code. In their view, the failure of an officer to make a demand under section 254(3) as soon as practicable, is akin to the situation dealt with by the Supreme Court of Canada in R. v. Rilling (1975), [1976] 2 S.C.R. 183 (S.C.C.). As such, in the absence of a Charter application, Rilling is dispositive of the issue. In this case, the Defence made no Charter application so despite the demand not being made as soon as practicable, the Crown argues that they can still rely on the presumption in section 258. They point to the recent case of R. v. Forsythe (2009), 250 C.C.C. (3d) 90 (Man. C.A.) leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 60 (S.C.C.) as support for their position. 39 The Defence on the other hand takes the position that if the requirements of section 254(3) are not satisfied, the Crown cannot rely on the presumption of identity in section 258(1)(c) of the Criminal Code. Since no viva voce evidence was called relating the breath results back to the time of driving, the accused cannot be convicted of driving while over .08. They cite the case of R. v. Mid- dlebrook, [1995] A.J. No. 975 (Alta. Prov. Ct.) as support for this contention. In their view, no Charter application is required. 40 The first step in resolving this issue is to take a closer look at the purpose of section 254(3) and section 258(1)(c). In that regard, the applicable portions of these sections bear repeating. s. 254(3) If a peace officer has reasonable grounds to believe that a person is committing or at any time within the preceding three hours has committed, an offence under s. 253 as a result of the consumption of alcohol, the officer may, by demand made as soon as practicable, require the person a) to provide, as soon as practicable (i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, ..... s. 258(1) In any proceedings under s. 255(1) in respect of an offence committed under s. 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2), 240 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

..... (c) where samples of the breath of the accused have been taken pursuant to a demand made under section 254(3), if ..... (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least 15 minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, ..... 41 In R. v. Deruelle, [1992] 2 S.C.R. 663 (S.C.C.), the Supreme Court of Can- ada engaged in an analysis of the context of s. 253 and s. 258. The Court was dealing with the issue of whether a breathalyzer demand or blood demand under section 254(3) had to be made within two hours of the offence. They concluded that a peace officer need only form the belief that an impaired driving offence had been committed within the past two hours and that the demand made pursu- R. v. Dolezsar D.E. Labach Prov. J. 241

ant to that belief must follow as soon as practicable but may fall outside the two hour time limit. At paragraph 15, Mr. Justice La Forest said: [15] Looking beyond the text of the provision, the breathalyzer scheme of the Code is designed to ensure that breath or blood samples are obtained as quickly as possible after the alleged impaired driving offence. This overriding objective is achieved through various mecha- nisms found in specific Code provisions. While a general objective is the same throughout the scheme, the specific purposes of each mechanism are different. As such, the fact that the provisions constitute a “scheme” does not mandate a unitary interpretation contrary to the language of each individual provision. The two hour limit in section 254(3) contributes to the objective of the scheme by forcing prompt police investigation, and by requiring the police to take the sample as soon as practicable. This specific purpose, which goes to the admissibility of the sample into evidence, can be distinguished from the purpose of the time limit in the presumption section, section 258(1)(c). The latter provides a procedural shortcut for the police, but only if the breath or blood sample is obtained within two hours of the alleged offence. As such, it is concerned with the qual- ity of the evidence obtained by the police, rather than its admissibility. 42 While the Court in Deruelle, supra, was speaking about the time limitations in sections 254(3) and 258(1)(c), their comments are just as applicable to the remaining requirements of these respective sections. The purpose of s. 254(3) is to allow a peace officer to make a demand for breath samples in certain circumstances. The breath demand must be made as soon as practicable after the peace officer forms the belief that the person is committing a section 253 offence. The samples are to be provided as soon thereafter as is practicable. If these preconditions are met then the results of the breath test are admissible in evidence as against an accused. This is different than the purpose of section 258. The purpose of section 258 is to allow the Crown the benefit of a presumption that the results of breath tests taken after driving are the same as the blood alcohol level of an accused at the time of driving if all the preconditions in section 258(1)(c) have been met. If they have not been met, then the Certificate of Analyses is still admissible in evidence however the Crown cannot rely on the presumption. In this instance they could use the blood alcohol readings on the Certificate to prove by viva voce evidence that the accused’s blood alcohol readings were over .08 at the time of driving. This distinction is significant. 43 In R. v. Rilling, supra, the Supreme Court dealt with the admissibility of evidence in a case where the police did not satisfy the prerequisites of s. 254(3). Specifically, the trial judge had found that the police did not have reasonable and probable grounds to make a breath demand but he did not exclude the breathalyzer results from evidence and convicted the accused. In rejecting the 242 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

accused’s appeal, the Supreme Court agreed with the comments of the Supreme Court of Alberta when they said at page 11: . . . that while absence of reasonable and probable grounds for belief of impairment may afford a defence to a charge of refusal to submit to a breathalyzer test laid under subsection (2) of section 235 [now section 254(5)] of the Code, it does not render inadmissible certificate evidence in the case of a charge under section 236 [now section 255(1)] of the Code. The motive which actuates a peace officer in making a demand under section 235(1) [now section 254(3)] is not a relevant consideration when the demand has been acceded to. 44 This reasoning in Rilling was applied in the case of R. v. Young, [1981] A.J. No. 657 (Alta. Q.B.) where the police had reasonable and probable grounds to make the breath demand but it was not made as soon as practicable. At para. 9, Mr. Justice Wachowich had this to say about an instance when a demand was not made as soon as practicable: [9] This Court considered in R. v. Brown (1981), 27 A.R. 407, the question of the demand being made “forthwith or as soon as practicable”. The cases which the court considered were R. v. Rilling, [1973] 3 W.W.R. 319; 11 C.C.C. (2nd) 285; [1976] 2 S.C.R. 183, 31 C.R.N.S. 142, [1975] 6 W.W.R. 626; 24 C.C.C.(2nd) 181; 5 N.R. 327, 60 D.L.R. (3d) 128. This Court in the Brown decision considered the decision of R. v. Hruby which was then an unreported decision of Haddad, J.A., January 22, 1980 and is now reported in (1980), 19 A.R. 230, 4 M.V.R. 192. This Court concluded that although the demand in the Brown case may not have been made “forthwith or as soon as practicable” that this factor became irrelevant once there had been a compliance with the demand. Therefore the argument of the Appellant herein on the ground put forth, in my view, is not tenable as the opportunity to challenge the validity of the demand had been lost when the breath sample was provided. 45 Rilling was a pre-Charter decision. With the advent of the Charter, the Su- preme Court made it clear that Rilling is still good law and that any attack on the admissibility of breath samples on the basis of no reasonable grounds to make the demand must be couched in a Charter application. See R. v. Bernshaw, [1994] S.C.J. No. 87 (S.C.C.) at paras. 40 - 42. But I believe that the reasoning in Bernshaw, goes even further, that is, any attack on the admissibility of breath samples on the basis of non-compliance with s. 254(3) must be done by way of a Charter application, otherwise, notwithstanding the non-compliance, the evidence would still be admissible as per Rilling. 46 In Bernshaw, supra, the Supreme Court was faced with the issue of whether the results of a breathalyzer test should be excluded from evidence on the grounds that the officer did not have the reasonable and probable grounds required to make the demand. Specifically, the officer based his grounds on a fail reading he received on the screening device. But the accused argued that the R. v. Dolezsar D.E. Labach Prov. J. 243

officer knew or ought to have known that the fail result might have been inaccurate due to the presence of mouth alcohol. In reaching the conclusion that the officer could rely on the fail reading for his grounds for the demand in the absence of credible evidence that the screening device test was not done properly, Mr. Justice Sopinka, speaking for the majority, said at para. 51: . . . The requirement in section 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a pre-condition to a lawful search and seizure under section 8 of the Canadian Charter of Rights and Freedoms. Section 8 requires that reasonable and probable grounds exist in fact and not that their presence can be deemed to exist notwithstanding the evidence. See also Madam L’Heureux-Dub´e’s comments in dissent at paragraph 96 where she agrees with the majority on this point. 47 There are really only three requirements in section 254(3) to the admissibility of breath sample results into evidence. The first is that a peace officer have reasonable (formerly reasonable and probable) grounds to believe that a person has committed a section 253 offence within the last three hours (formerly two hours). The second is that a demand to provide breath samples be made as soon as practicable. The third is that the person provide samples of their breath as soon as practicable. All of these requirements have a subjective and an objective component. While the aforementioned comments of Mr. Justice Sopinka in Bernshaw are directed at this first requirement, there is no reason why his comments are not equally applicable to the second and third requirements. It does not make sense at law that a Charter application is required to take issue with the requirement of reasonable grounds but not the requirement that the demand be made or the tests taken as soon as practicable. Thus as long as the accused wants to attack the admissibility of the breath samples on the basis of non-compliance with one of the three pre-requisites in section 254(3), they should have to do it by Charter application. 48 Allen, J of the Alberta Provincial Court reached this same conclusion after an extensive analysis of section 254(3) in R. v. Catling, [2001] A.J. No. 724 (Alta. Prov. Ct.). At paragraph 47 he wrote: [47] Where an officer does not make a demand “forthwith or as soon as practicable” the demand to provide breath samples for an approved instrument is not a proper one pursuant to section 254(3). The failure of an officer to make a demand under section 254(3) “forthwith or as soon as practicable” is analogous to a situation where the demand is made without reasonable and probable grounds. As such, in my view, the same legal result should follow. Pursuant to R. v. Rilling, supra, this failure may afford a defence to refusal but would not render evidence of the breath tests inadmissible. The accused would be allowed an alternative to establish a Charter infringement. . . . 244 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

49 There is a body of case law following this reasoning that when an accused is challenging the reasonable grounds for a demand, whether a breath demand was made as soon as practicable or whether breath tests were taken as soon as practicable under section 254, they are challenging the admissibility of the breath test results and that such challenge must be Charter based. Otherwise Rilling would apply and despite the non-compliance would render the results admissible. With this I agree. See R. v. Catling, supra; R. v. Radcliffe, [2008] A.J. No. 575 (Alta. Q.B.); R. v. Wright, [2008] A.J. No. 852 (Alta. Prov. Ct.); R. v. Pinchak, [2010] A.J. No. 156 (Alta. Prov. Ct.); R. v. Ference, [2010] A.J. No. 357 (Alta. Prov. Ct.). 50 This reasoning is, to a certain degree, the crux of the Manitoba Court of Appeal’s decision in R. v. Forsythe, supra. In this case, the police stopped the accused and noted signs of impairment. A roadside screening test was performed and the accused failed. At 1:30 a.m., he was read his rights, police warning and breath demand. A tow truck was called and the officer and the accused waited until the tow truck arrived before leaving for the detachment. The accused provided breath samples at 2:24 a.m. and 2:48 a.m., both being .14. The accused was convicted at trial but successfully appealed to the summary conviction appeal court on the basis that the evidence did not establish that the samples were taken as soon as practicable. Upon further appeal to the Court of Appeal, the acquittal was set aside and the original conviction restored. Beard J.A., speaking for a unanimous Court, determined that the appeal judge erred in law by concluding that the requirement of section 254(3) that the accused’s samples be taken as soon as practicable was a pre-condition to the admissibility of the test results. In their view, there was no reason to have different procedures and principles to determine the admissibility of breathalyzer evidence taken under section 254(3) depending on which of the requirements in that section had not been met. Charter analysis to determine admissibility of breath samples should be applied to all of the requirements in section 254(3). 51 While I agree with the Manitoba Court of Appeal’s comments that a Charter challenge is necessary when an accused is taking issue with the admissibility of breath samples on the basis of whether the requirements of section 254(3) have been met, I am not prepared to agree that a Charter challenge is necessary to take issue with the applicability of the section 258 presumption. There are a great number of cases in Saskatchewan where an accused has challenged whether a breath sample was taken as soon as practicable under section 258(1)(c). In doing so they are challenging the applicability of the presumption rather than the admissibility of the breath tests. If an accused is successful in their challenge, then the Crown cannot rely on the statutory presumption that the blood alcohol concentrations in the Certificate of Analyses were the same as at the time the vehicle was operated despite the fact that the Certificate of Analyses was admitted as a full exhibit. In such a case, no Charter application is required because the admissibility of the certificate evidence is not in question, only the R. v. Dolezsar D.E. Labach Prov. J. 245

use that may be made of it is. See R. v. Allin, 2003 SKPC 58 (Sask. Prov. Ct.); R. v. Fyfe, [2007] S.J. No. 305 (Sask. Prov. Ct.); R. v. Gilchrist, [2008] S.J. No. 665 (Sask. Prov. Ct.); R. v. Ealey, [2010] S.J. No. 357 (Sask. Prov. Ct.); R. v. Carriere, supra. 52 Support for this position can be found in the case of R. v. Carter, supra. In this case, the Saskatchewan Court of Appeal dealt with an appeal by way of stated case from an accused’s conviction for driving while over .08. The question on the stated case was whether the learned trial judge had erred in finding that there was no unreasonable delay from the time of the impaired driving offence to the time the breath tests were taken. In finding that the trial judge had correctly determined that the tests were taken as soon as practicable, Chief Jus- tice Culliton had this to say at paragraph 5: [5] The law is well settled that for the prosecution to rely on the presumption provided for in section 237(1)(c)(iv) of the Criminal Code it is necessary that there be compliance with the requirements set out in paragraphs (ii), (iii) and (iv) [*page 4] of section 237(1)(c). Clearly the failure to satisfy the Court that breath samples were taken as soon as practicable after the offence was alleged to have been committed, does not go to the admissibility of the certificate, but solely as to whether or not there can be reliance on the presumption provided for in paragraph (iv). 53 Thus, while I take guidance from Appellate Courts in other jurisdictions, until the Saskatchewan Court of Appeal has ruled otherwise, I feel bound by the decision in R. v. Carter, supra, as well as the considerable body of case law from Saskatchewan courts indicating that a Charter application is not required when taking issue with the applicability of the presumptions in section 258(1)(c). 54 In the present case, Defence Counsel urges the Court to find that the presumption in section 258(1)(c) does not apply since the section 254(3) demand was not made as soon as practicable. Of significance to this argument is the fact that the requirement that the demand be made as soon as practicable only appears in section 254(3) and not in section 258(1)(c). As a result, this requirement is not a direct precondition to the ability of the Crown to rely on the presumption in section 258(1)(c). The only argument Defence could avail themselves of is that a precondition of section 258(1)(c) is that the “samples of the breath of the accused be taken pursuant to a demand under subsection 254(3)” and for the demand to be a lawful section 254(3) demand, it must satisfy the three requirements under that section, one of them being that the demand be made as soon as practicable. 55 On this point, I am guided by the decision in R. v. Showell, [1971] O.J. No. 1657 (Ont. H.C.). In this case, the Court was dealing with a Crown appeal from a provincial court decision dismissing a charge of driving while over .08 against the accused. The issue on appeal was whether there was a valid section 223(1) 246 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

[now section 254(3)] demand such that the certificate evidence could be relied upon pursuant to section 224A(1)(c) [now section 258(1)(c)]. Although the high court overturned the dismissal and entered a conviction on the basis that the trial judge erred in finding that there were no reasonable and probable grounds to make the breath demand, the Court said the following at paragraph 14: [14] In summary, the requirement of reasonable and probable grounds of s. 223(1) is not an ingredient of the demand such that the non-existence of the grounds results in the demand not being a s. 223(1) demand. Rather, it is a substantive provision setting out a defence for a refusal to give a breath sample. Therefore, even if the demand is made without reasonable and probable grounds it is a s. 223(1) demand within the meaning of s. 224A(1)(c) and, therefore, certificate evidence of the results is admissible. 56 Given that the wording of section 258(1)(c) is only that there be a “demand” and not a “lawful demand” under section 254(3), these comments in Showell are persuasive. Moreover, while Rilling, supra, was a later decision, these comments are a logical extension of the Rilling reasoning. If a Charter argument is successfully made under section 254(3) and the test results are excluded from evidence then no reliance on the section 258(1)(c) presumption is necessary. If no Charter argument is made or if the test results are not excluded from evidence despite the Charter breach, then the Crown should still be able to rely on the presumption as long as all the requirements under section 258(1)(c) have been established. It would not make sense otherwise that if the requirements of section 254(3) are not met but the results are admissible that that, in and of itself, should then not allow the Crown the ability to rely on the presumption. It is after all, only a shortcut for the Crown in proving the blood alcohol content of the accused at the time of driving and nothing more. Thus, irrespective of whether all the prerequisites of section 254(3) have been met, as long as the demand is made in clear language and the rest of the requirements of section 258(1)(c) are met, the Crown can rely on the presumption. In this case, the demand made on the accused was clear and unambiguous and Cst. Thibodeau was satisfied that she understood it. Defence has not taken issue with any of the requirements of section 258(1)(c) and, as a result, the Crown can rely on the presumption. 57 Defence counsel sought to rely on the case of R. v. Middlebrook, supra, in support of their position. In Middlebrook, the accused was facing charges of impaired driving and refusing to comply with a breath demand. While the accused was convicted of the impaired driving, he was acquitted of the refusal charge in the absence of a Charter argument on the basis that the police officer had not made the demand for a sample forthwith. I appreciate counsel bringing this case to the Court’s attention however it is of little assistance on the issues in the present case. Specifically, counsel for the accused in Middlebrook was not asking the court to find that the presumption did not apply since the demand was R. v. Dolezsar D.E. Labach Prov. J. 247

not made forthwith. The accused had refused to provide samples so no reliance on the presumption was possible. Defence was instead arguing that because section 254(3) was not strictly complied with, the accused had a reasonable excuse for refusing to provide samples of his breath. This was the very position the Supreme Court took in Rilling, supra, and although the court in Middlebrook did not quote from Rilling in acquitting the accused, it is clear that that was the basis upon which the court reached their conclusion. A Charter breach was not alleged but then it did not have to be since this was a refusal case. This is considerably different than the circumstances of the present case. 58 In the present case, Defence Counsel argued that the breath demand was not made as soon as practicable as required by section 254(3) of the Criminal Code. By taking issue with section 254(3) he is challenging the admissibility of the breath test results not attacking the presumption in section 258. He has not raised a Charter argument and absent such an argument, Rilling, supra, is dispositive of the issue. Notwithstanding Constable Thibodeau’s failure to provide evidence that the breath demand was made as soon as practicable, the breath test results are admissible. Strict compliance with the section 254(3) requirements is not a precondition of a demand referred to in section 258(1)(c). While a Charter argument is not required to dispute the Crown’s ability to rely on the presumption, Defence has not taken any issue with any other preconditions of section 258(1)(c). Therefore, I find that the Crown is entitled to rely on the presumption set forth in that section.

c) Is the evidence sufficient to prove beyond a reasonable doubt the offence of impaired driving contrary to s. 253(a) of the Criminal Code? 59 In R. v. Stellato, [1993] O.J. No. 18 (Ont. C.A.) affd, [1994] S.C.J. No. 51 (S.C.C.), the Supreme Court of Canada approved Labrosse J.A.’s comments on the evidence required to prove impairment. At paragraph 14 of the Ontario Court of Appeal decision, Labrosse JA held: [14] In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. 60 In R. v. Landes (1997), 161 Sask. R. 305 (Sask. Q.B.), Mr. Justice Klebuc (as he then was) said this about the evidence required to establish impairment: [16] An opinion as to impairment, be it by the trial judge or a non-expert, must meet an objective standard of “an ordinary citizen” or a “reasonable person” in order to avoid the uncertainties associated with 248 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

subjective standards, particularly when based on inferences. To that end a list of tests and observations has been developed for use by peace officers and courts in determining whether an accused’s mental faculties and physical motor skills were impaired by alcohol to the degree of impairing the accused’s ability to drive a motor vehicle. Those observations and tests include: (1) evidence of improper or abnormal driving by the accused; (2) presence of bloodshot or watery eyes; (3) presence of a flushed face; (4) odour of an alcohol beverage; (5) slurred speech; (6) lack of co-ordination and inability to perform physical tests; (7) lack of comprehension; and (8) inappropriate behaviour. [17] In my view, a trial judge must carefully review all of the reported tests and observations which inferentially support or negate any impairment of the accused’s mental and physical capabilities, and then be satisfied beyond a reasonable doubt that the reasonable inferences to be drawn therefrom establish that the accused’s ability was impaired to the degree prescribed by sections 253 and 255 of the Crim- inal Code. A piecemeal approach supporting or negating impairment is not permissible. See R. v. Hall at page 66. 61 At the time Constable Thibodeau arrested the accused for impaired driving, he noted a smell of beverage alcohol on her breath and she had bloodshot eyes. When asked how much she had to drink she initially lied to him and said nothing. He asked again and she admitted that she had a couple of drinks. She was rude to the officer and he witnessed what he believed was at least four instances of her driving erratically including a near miss with a vehicle in the adjoining lane. 62 He did not notice any slurred speech, flushed or reddish face or dexterity problems. The accused had no problem getting out of her vehicle, walking to the police vehicle or getting into the police vehicle. She had no problems with her motor skills, understood what he was saying to her and gave appropriate responses to his questions. 63 While I was satisfied on this evidence that Constable Thibodeau had reasonable grounds to demand the breath sample, I cannot say that I am satisfied to the requisite degree that the accused was impaired at the time she was driving. The tests are different. I suspect she was probably impaired but that is not sufficient. In R. v. Lifchus, [1997] 3 S.C.R. 320 (S.C.C.), Mr. Justice Corey said this at paragraph 39 when talking about this concept of proof beyond a reasonable doubt: [39] ..... Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has R. v. Dolezsar D.E. Labach Prov. J. 249

failed to satisfy you of the guilt of the accused beyond a reasonable doubt...... 64 Therefore I do not feel that the evidence is sufficient to prove beyond a reasonable doubt that on July 7, 2009, the accused was driving a motor vehicle while her ability to do so was impaired by alcohol.

Conclusion 65 Having determined that the Crown can rely on the presumption in section 258(1)(c) of the Criminal Code, there is uncontradicted evidence before me that at the time Constable Thibodeau observed the accused’s driving on July 7, 2009, her blood alcohol readings were .12 and .11. On all of the evidence I am satisfied beyond a reasonable doubt that the accused was driving while over .08 contrary to section 253(b) of the Criminal Code and I find her guilty of that charge. 66 Out of the same incident I find the accused not guilty of impaired driving contrary to section 253(a). Accused convicted of driving with excessive blood alcohol level and acquitted of impaired driving charge. 250 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

[Indexed as: R. v. Imbers] HER MAJESTY THE QUEEN and JAIME IMBERS Ontario Court of Justice T. Lipson J. Judgment: September 2, 2010 Docket: None given, 2010 ONCJ 398 Mr. G. Scott for Crown Mr. R. Mwangi for Defendant Criminal law –––– Offences — Dangerous driving — Evidence –––– Witness alleged that accused caused damage to witness’s car with door of accused’s car while both cars were stopped in adjacent parking spots — Accused was uncooperative when witness requested that they exchange insurance information and parties had verbal altercation — Accused continued to ignore witness’s requests to exchange information, then entered his vehicle and started ignition — Witness stood in front of accused’s car to write down vehicle information in order to report incident to police — Witness alleged that accused began to drive, forcing witness to climb onto hood of car in order to avoid being run over — Witness called 911 from cell phone from hood of car while accused continued to drive — Witness remained on hood until accused stopped vehicle — Accused left scene and returned short while later with his mother to speak to police — Accused charged with dangerously operating motor vehicle — Accused convicted — Accused’s version of story was implausible and incredible — Position of witness on hood of car contradicted accused’s claim that witness had jumped onto hood from side of vehicle — Evidence did not leave court in any reasonable doubt — Witness was honest and reliable, and 911 call provided powerful and compelling support for witness’s account — Accused deliberately drove considerable distance with witness on hood of car without stopping — Actions of accused were not justified in any way. Cases considered by T. Lipson J.: R. v. Beatty (2008), 76 B.C.L.R. (4th) 201, 371 N.R. 119, [2008] 1 S.C.R. 49, 420 W.A.C. 7, 251 B.C.A.C. 7, 54 C.R. (6th) 1, 57 M.V.R. (5th) 1, 2008 CarswellBC 307, 2008 CarswellBC 308, 2008 SCC 5, 228 C.C.C. (3d) 225, 289 D.L.R. (4th) 577, [2008] 5 W.W.R. 1, 179 C.R.R. (2d) 247, [2008] A.C.S. No. 5, [2008] S.C.J. No. 5 (S.C.C.) — followed R. v. W. (D.) (1991), 1991 CarswellOnt 1015, 3 C.R. (4th) 302, 63 C.C.C. (3d) 397, 122 N.R. 277, 46 O.A.C. 352, [1991] 1 S.C.R. 742, 1991 CarswellOnt 80, [1991] S.C.J. No. 26, EYB 1991-67602 (S.C.C.) — followed

TRIAL of accused on charge of dangerous operation of motor vehicle. R. v. Imbers T. Lipson J. 251

T. Lipson J.:

1 The accused, Jaime Imbers, entered a plea of not guilty to a charge of dangerous operation of a motor vehicle.

Overview of the evidence and position of the parties 2 The main Crown witness was Fitzroy Daley, a forty-five year old business- man. About 8:30 p.m. on Friday September 18, 2009 Mr. Daley parked his car in a plaza on Sandhurst Circle in Scarborough and opened his driver’s side door to exit the vehicle. At the same time Mr. Imbers reversed his car into the adjacent parking space. Mr. Daley was reaching for his cell phone when he heard a loud noise. He testified that Mr. Imbers opened his door which then struck Mr. Daley’s door. The impact caused a small dent to Mr. Daley’s door. In cross- examination Daley stated that he then looked at the accused and Mr. Imbers told him “I did not see you”. Mr. Imbers then went into the beer store followed by Mr. Daley. In the store Mr. Daley told the accused that he had hit his car. Mr. Imbers denied this. Daley invited him to take a look. Daley testified that Mr. Imbers brushed past him “somewhat aggressively” and the two men walked to their cars. Mr. Daley testified that he showed Mr. Imbers the dent but Mr. Im- bers denied causing any damage. The two argued for a few moments and Mr. Daley told Mr. Imbers that he wanted to exchange insurance information with him. Mr. Imbers refused to cooperate. Mr. Daley told him that he was going to call 911. Mr. Imbers told him “yo, man, like you do whatever you want. But I’m leaving. If you want to, you can come with me.” Imbers who was, according to Daley, “getting aggressive”, got into his car and was getting ready to leave the lot. Daley told him he was going to write down his vehicle information and not to leave the scene. Daley stood in front of the accused’s vehicle and was copying the plate number. Imbers started the car. Daley said “hold on a minute, I’m just writing this down. You’re not allowed to leave and I gotta get your information”. Daley testified that the accused put the car into drive. Daley testified that he had to jump onto the hood of Mr. Imber’s car in order to avoid ending up under the car. The witness stated that he “was literally spread-eagle across his car while he was driving, trying not to fall off and trying to tell him to stop the car and I’m calling 911 at the same time”. The accused continued to drive out of the parking lot onto Sandhurst Circle. The witness could feel the car passing over some bumps as it moved on an upward slope out of the plaza and onto the street. Mr. Daley testified that he continued on the phone with a 911 operator as he screamed repeatedly at the accused to stop the car. Mr. Daley estimated that he was on the hood the length of a football field to quarter mile. He stated that the accused “was squealing as he went down the street” travelling at about 60-70 kilometres an hour. In cross-examination he conceded telling the police that the car was travelling at about 50-60 kms per hour. There were cars coming in the opposite direction and the accused was swerving his car as he drove. Imbers 252 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

finally squealed the car to a stop and the witness jumped off the hood. At this point half of Mr. Imbers’ car was on the street and the other half on the sidewalk. Imbers then drove the car off and turned right onto a street off Sandhurst Circle. Mr. Daley returned to the parking lot and waited for the police to arrive. He stated that he was bleeding from his shins and hands. Mr. Imbers returned to the parking lot with his mother. Daley pointed out the accused to the police officers who had attended to investigate. 3 In cross-examination Mr. Daley denied that he jumped onto the hood of Mr. Imber’s car because he was trying to stop him from leaving the plaza. He testified that he “didn’t think any normal, sane human being would want to jeopardize his life like that”. He denied the suggestion that the car was travelling only 5 km an hour. 4 The 911 call made by Mr. Daley is exhibit 1. The portion of the call where Mr. Daley is speaking to both the 911 operator and the accused was admitted for its truth pursuant to the res gestae exception to the rule against the admission of hearsay evidence. Mr. Daley’s utterances were clearly spontaneous and contem- poraneous to the dramatic events unfolding as he lay sprawled on the hood of Mr. Imbers’ moving vehicle. Mr. Daley is heard to be imploring the accused to stop the car and describing the event in real time to the 911operator. P.C. Brown testified that when she investigated the incident starting around 9 p.m., Mr. Daley appeared visibly shaken. She saw no evidence that he was injured. She did observe some damage to Mr. Daley’s vehicle. 5 Mr. Imbers testified in his own defence. He is a twenty-seven year old life- guard and swimming instructor who at the time was living with his parents, a two to three minute drive from the plaza. He told the court that he went to the plaza to purchase a case of beer for his father. Mr. Imbers testified that he was expected to deliver the beer promptly to his father or else his father might become upset or even violent with him. He backed his car into a parking spot next to Mr. Daley’s vehicle. As he opened his door, Mr. Daley also opened his and the two doors collided. Mr. Daley got out of his car and gave the accused a “really bad look like I did something really bad and he gave me a look like I really owed him something right then and there.” Mr. Daley told him that he had hit his car. The accused said nothing and walked into the beer store. Mr. Daley also came into the store and again told him he hit his car. Mr. Imbers stated that he felt upset when Daley told him that. He also stated that he was getting “annoyed” that Daley was following. The accused bought his beer and the two men then went into the parking lot. Imbers noticed that the rear of Daley’s car was partly in the accused’s parking space. Imbers felt that Daley was at fault for any damage because of this stating “so, that really got me annoyed that he was still bothering me”. Daley asked for the accused’s insurance information and this annoyed Mr. Imbers because he felt Daley was at fault. While Mr. Imbers admitted having his insurance papers with him, he did not provide the information to Mr. Daley. Instead, he told Daley to follow him home because he wanted to R. v. Imbers T. Lipson J. 253

drop off the beer to his father. Providing insurance information at the scene would have taken half an hour. Daley said he was not going to follow him. 6 The accused then turned on the ignition. Mr. Daley had been sitting in his car with his door open. He appeared to be on his phone. He ran out of his car and went in front of the accused’s car. Imbers stopped, put his car in reverse and turned the wheel to the right. Daley then went to the driver’s side of Imbers’ car and jumped on the hood as Mr. Imbers tried to drive away. He was travelling at only 5-7 km an hour, always in first gear. Mr. Daley was positioned “like a star” with arms outstretched and holding on to the top of the roof. He didn’t immediately stop the car because he was in shock. He simply let the car coast to the top of the parking lot and stopped. His car had travelled some 20-30 feet with Mr. Daley on the hood. While on the hood, Mr. Daley was swearing and yelling on his cell phone. At most he was on the hood for 10-15 seconds while the car was moving and for a further five seconds after the car stopped. The accused then reversed his car to clear Mr. Daley and left. He left the scene in order to get the beers to his father. Knowing that Mr. Daley had been on the phone with the police, the accused returned to the scene with his mother. He wanted her to witness any interaction between himself and the police. At work he had been in- structed to always have a witness present with dealing with the police. Mr. Im- bers testified that he saw no visible injuries on Mr. Daley. 7 In cross-examination, Mr. Imbers admitted that as he was leaving the plaza his foot was on the gas pedal and he was giving the car gas. He maintained he was only travelling at 5-7 km per hour and that Mr. Daley managed to get off the car before the car left the lot. He admitted being annoyed with Mr. Daley when he followed him into the beer store and “he was in my ear and talking really close”. He denied there was any damage to Mr. Daley’s door. He didn’t stop the car while Mr. Daley was on the hood because he was in ‘deep shock”. 8 Mrs Carmen Imbers also gave evidence. She accompanied her son back to the plaza after the incident. She did not witness the events giving rise to the charge. 9 The defence position is that Mr. Daley jumped onto the hood of the accused’s moving car. This happened very quickly and caught Mr. Imbers by surprise. There was no time for Mr. Imbers to appreciate or react to this sudden and shocking action on the part of Mr. Daley. A reasonably prudent driver in the same circumstances would have reacted in the same way as the accused. It is submitted that it was Mr. Daley who created a hazardous situation for Mr. Im- bers when he jumped onto the car hood. Mr. Imbers reacted by bringing his car to a safe stop to avoid any harm to Mr. Daley and acted reasonably in all the circumstances. 10 The Crown submits that the account given by Mr. Daley should be accepted and that of Mr. Imbers should be rejected. The 911 tape materially supports the version given by Mr. Daley. The explanation given by the accused that Mr. 254 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

Daley intentionally jumped on the hood to prevent Mr. Imbers from leaving the scene is implausible and defies common sense.

Applicable legal principles 11 Mr. Imbers is presumed to be innocent. The burden of proof rests upon the Crown to prove his guilt beyond a reasonable doubt. Mr. Imbers is not required to prove anything. 12 The credibility of the witnesses must be assessed. Mr. Imbers testified in his own defence. Reasonable doubt applies to the assessment of credibility. I instruct myself in accordance with the three stage analysis set out in the Supreme Court of Canada decision in R. v. W. (D.), [1991] 1 S.C.R. 742 (S.C.C.) as follows: First, if I believe the evidence of the accused, he must be acquitted. Second, if I do not believe the evidence of the accused, but am left in reasonable doubt by it, then again, he must be acquitted. Third, even if I am not left in doubt by the evidence of the accused, I must then decide whether, on the basis of the evidence I do accept, whether I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. 13 The three stage analysis in W. (D.) is frequently cited for the proposition that a criminal trial is not a contest of credibility between the accused and the complainant; that disbelieving the accused does not lead necessarily to conviction. It is essential that the burden of proof not be inadvertently shifted. It is an error for a trial judge to find that because a complainant was credible the onus shifts to the accused to disprove his guilt. It is also important to carefully consider the third step in W. (D.). Even if the evidence of the accused is completely disbe- lieved, the trial judge must go on to consider whether the Crown has established guilt beyond a reasonable doubt. The trial judge must consider the whole of the evidence — which I have done. 14 The offence alleged is dangerous operation of a motor vehicle. To decide whether the accused operated his motor vehicle in a manner that was dangerous to the public, I am required to consider the circumstances of the driving including the nature, condition and use of the place whether the driving occurred; the amount of vehicular and pedestrian traffic actually there at the time and the amount of both vehicular and pedestrian traffic that might reasonably be expected to be there at the time. The offence involves more than just carelessness. The Crown must satisfy the court beyond a reasonable doubt that Mr. Imbers’ driving was a marked departure from what a reasonable, prudent driver would do in the same circumstances. The Crown does not have to prove that the accused meant to endanger the life or safety of anyone who was or might have been there at the time. Nor does the Crown have to prove that someone was actually harmed by the way the accused drove his vehicle. R. v. Imbers T. Lipson J. 255

15 In R. v. Beatty (2008), 228 C.C.C. (3d) 225 (S.C.C.) the Supreme Court of Canada clarified that the mens rea consists of a modified objective test that requires the conduct of the accused to amount to “a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances”. In considering what constituted “in the accused’s circumstances”, the court must consider any explanation offered by the accused of his actual state of mind.

Assessment of the witnesses’ credibility and findings of fact 16 Certain facts are not in dispute. Mr. Daley believed that Mr. Imbers had dented his driver’s side door as the two were in the process of exiting their cars in the plaza lot. Mr. Daley wanted to discuss the problem immediately. Mr. Im- bers ignored Mr. Daley’s request and entered the beer store. Mr. Daley followed the accused into the beer store in order to discuss what had occurred. Mr. Daley was upset and Mr. Imbers was annoyed with Mr. Daley for following him into the store. Mr. Imbers continued to ignore Mr. Daley inside the store. Then the two men left the store and returned to where their cars were parked. Mr. Daley requested insurance information from Mr. Imbers and the accused refused to give him any insurance information, even though he had his insurance document with him. Mr. Daley’s request for insurance information furthered annoyed Mr. Imbers. Mr. Imbers explained that he did not want to provide insurance information because his priority was to deliver the case of beer he bought to his father. He also said exchanging insurance information with Mr. Daley would take him “half an hour”. I reject the accused’s explanation for not exchanging information. It would have taken no more than five minutes to provide his insurance information, not half an hour. I am satisfied he simply did not want to cooperate with Mr. Daley and was intent on going on his way. I am satisfied that Mr. Daley proceeded to take down Mr. Imbers’ licence plate information. In his testimony Mr. Imbers stated that Mr. Daley was on his phone and had a pen and paper in his hands and that when the accused started his car, Mr. Daley “went right in front of my car”. It simply defies common sense that Mr. Daley would purposely endanger his own safety by either going in front of the accused’s moving vehicle or by jumping onto the hood from the side as Mr. Imbers claimed. Mr. Imbers’ position is implausible and incredible. I accept the evidence of Mr. Daley that the car only started moving when he was standing in front of Mr. Imbers’ car copying down the licence plate information. In cross- examination, Mr. Daley rejected any suggestion that he purposely jumped on the hood commenting that he “didn’t think any normal, sane human being would want to jeopardize his life like that”. I agree and I do not accept Mr. Imbers’ version of how the accused came to be on the hood. Mr. Imbers agreed that Mr. Daley was laying spread eagled on the hood with his hands in the windshield area. This positioning is consistent with someone jumping on the hood from an 256 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

original standing position in front of the car as opposed to a standing position to the side of the accused’s car. 17 Mr. Imbers claimed that Mr. Daley was on the hood of the car for a distance of some 20-30 car lengths. The accused stated that Daley was on his car for about 10-20 seconds and that he was letting the car coast only 5-8 kilometres an hour. He claimed that his car was not even out of the parking lot before Mr. Daley jumped off the car. The 911 call made by Mr. Daley to a police dispatcher provides vivid and compelling evidence that contradicts Mr. Imbers’ claims. Mr. Daley is heard describing the events in real time. He is clearly in a state of escalating panic as he is clinging to the hood, frantically describing the event to the operator and also screaming at the accused to stop the car. It is clear that Mr. Imbers was not stopping the car. He is heard telling the operator — “I’m on the guy’s hood and he’s driving down the street”. He repeatedly tells the accused “You better stop the car” and then Mr. Daley is heard to be screaming repeatedly “Stop the fucking car, stop the fucking car”. A moment after getting off the car, Daley tells the operator that he is on the street. It is clear from the tape that Mr. Daley is on the roof for approximately 40 seconds and not 10-20 seconds as claimed by Mr. Imbers. It is also clear that the accused is driving the car and not merely letting it coast for a few feet. I accept the evidence of Mr. Daley that Mr. Imbers was driving the car while Daley was on the hood out of the plaza lot and for a distance on Sandhurst Circle. Even accepting the accused’s evidence concerning speed and duration of driving, he would have travelled with Daley on the hood for in excess of 50 metres. Mr. Daley’s estimate that the car went at least the length of a football field is in my view far more accurate than the one given by Mr. Imbers’. 18 It was submitted by the defence that Mr. Daley is not a credible witness. If there were other cars travelling on the street as claimed by Mr. Daley when this happened, why didn’t anyone stop to help Mr. Daley? If Mr. Daley had in fact been bleeding from his hands and shins as he claimed, why didn’t the investigating officer, P.C. Brown, make any observations of his injuries? Defence counsel also submitted that it was only at trial and not in his statement to police that Mr. Daley claimed that Imbers stopped his car partly on the street and partly on the sidewalk. I do not view these alleged inconsistencies as having any serious impact on my assessment of credibility or findings of fact. I do not doubt that Mr. Daley would have suffered some scrapes and bruises from the incident, no matter which version was accurate. The officer spoke to the complainant when it was dark around 9 p.m. on September 18, 2009. The fact that she did not observe any injuries on Mr. Daley is explainable and does not, in my view, dimin- ish Mr. Daley’s testimony. The absence of other witnesses in a case can potentially leave the court in reasonable doubt. The fact that other witnesses were not located or came forward, does not serve to discredit the evidence of Mr. Daley that other cars were travelling on Sandhurst Circle at the time. R. v. Imbers T. Lipson J. 257

19 I have carefully considered the evidence of Mr. Daley and Mr. Imbers in light of all the other evidence, including the 911 call. I disbelieve the accused. Mr. Imbers account is not believable and does not leave the court in any reasonable doubt. I found Mr. Daley to be an honest and reliable witness. The portion of the 911 call where Mr. Daley is sprawled on the hood of the car imploring the accused to stop the car provides powerful and compelling support for Mr. Daley’s account of this incident. I am satisfied beyond a reasonable doubt that the accused operated his car in a dangerous manner. He committed this offence because he was simply intent on leaving the scene. He was angered by the per- sistent efforts of Mr. Daley to obtain his insurance information and decided to drive away as Mr. Daley was standing in front of his car copying his licence plate number. As the car moved forward Mr. Daley was forced to jump on the hood to avoid being run over. The actions of the accused were not justified in any way. There was not the slightest suggestion in Mr. Imbers testimony that he was in fear of the complainant and had to leave the plaza in the manner that he did. On the contrary, he said the Mr. Daley was annoying him. I do not believe that the accused was in any kind of shock or astonishment. The accused deliberately drove a considerable distance with Mr. Daley on his hood without stopping the car. He never testified that his actions were on account of fear of Mr. Daley and I find that he was never in fear. 20 In conclusion, I am satisfied beyond a reasonable doubt that Mr. Imbers operated his vehicle in a dangerous manner. He is found guilty. 21 Released: September 2, 2010 Accused convicted. 258 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

[Indexed as: R. v. Startup] Her Majesty the Queen and Dylan Joseph Startup Alberta Provincial Court T.C. Semenuk Prov. J. Judgment: October 8, 2010 Docket: Calgary 090271859P1-01-001-004, 2010 ABPC 328 Ms K. Ramakrishnan for Crown I. Savage for Accused Criminal law –––– Charter of Rights and Freedoms — Unreasonable search and seizure [s. 8] — Authorized by law –––– Accused was involved in single vehicle accident after leaving neighbourhood pub — Accused’s pick-up truck veered out of control, crossed opposite lane of travel, and smashed head-long into cement block retaining wall — Passenger in vehicle was seriously injured — After accident, accused walked back to his residence and police were called — Passenger was retrieved by accused and another roommate and brought back to residence — Police arrived — Officer directed accused to go into living room — Accused stated to officer, “I was at home, and [passenger] showed up all bloody” — Officer observed that accused’s shoes contained traces of snow and what appeared to be blood embedded in sole — Officer determined that accused was driver in collision — Officer noted signs of impairment — Accused was arrested for impaired driving and read his s. 10(b) rights under Canadian Charter of Rights and Freedoms — Accused was charged with dangerous driving causing bodily harm, failing to stop at scene of accident knowing that bodily harm has been caused to another person, and impaired driving causing bodily harm — Accused was also charged with two offences under Traffic Safety Act — Accused brought application for exclusion of evidence — Application granted — Statement made by accused, indicia of impairment by alcohol, and traces of snow and what appeared to be blood on accused’s shoes were excluded from evidence — Accused’s rights under ss. 7, 8, and 10(b) of Charter were violated — Detention arose as soon as officer directed accused to go to living room — Ac- cused had right to be informed of his s. 10(b) Charter right upon detention — Accused’s shoes were subject to unlawful and unreasonable search in violation of s. 8 of Charter — Officer’s inspection of accused’s shoes was not made with lawful authority. Criminal law –––– Charter of Rights and Freedoms — Unreasonable search and seizure [s. 8] — Reasonable grounds –––– Accused was involved in single vehicle accident after leaving neighbourhood pub — Accused’s pick-up truck veered out of control, crossed opposite lane of travel, and smashed head-long into cement block retaining wall — Passenger in vehicle was seriously injured — After accident, accused walked back to his residence and police were called — Passenger was retrieved by accused and another roommate and brought back to residence — Police arrived — Officer directed accused to go into living room — Accused stated to officer, “I was at home, and [passenger] showed up all bloody” — Officer observed that accused’s shoes contained traces of snow and what appeared to be blood embedded in sole — Officer determined that accused was driver in collision — Officer noted signs of impairment — Accused was ar- R. v. Startup 259 rested for impaired driving and read his s. 10(b) rights under Canadian Charter of Rights and Freedoms — Accused was charged with dangerous driving causing bodily harm, failing to stop at scene of accident knowing that bodily harm has been caused to another person, and impaired driving causing bodily harm — Accused was also charged with two offences under Traffic Safety Act — Accused brought application for exclusion of evidence — Application granted — Statement made by accused, indicia of impairment by alcohol, and traces of snow and what appeared to be blood on accused’s shoes were excluded from evidence — Accused’s rights under ss. 7, 8, and 10(b) of Charter were violated — Detention arose as soon as officer directed accused to go to living room — Ac- cused had right to be informed of his s. 10(b) Charter right upon detention — Accused’s shoes were subject to unlawful and unreasonable search in violation of s. 8 of Charter — Officer’s inspection of accused’s shoes was not made with lawful authority. Criminal law –––– Charter of Rights and Freedoms — Arrest or detention [s. 10] — Right to counsel [s. 10(b)] — Detention –––– Accused was involved in single vehicle accident after leaving neighbourhood pub — Accused’s pick-up truck veered out of control, crossed opposite lane of travel, and smashed head-long into cement block retaining wall — Passenger in vehicle was seriously injured — After accident, accused walked back to his residence and police were called — Passenger was retrieved by accused and another roommate and brought back to residence — Police arrived — Officer directed accused to go into living room — Accused stated to officer, “I was at home, and [passenger] showed up all bloody” — Officer observed that accused’s shoes contained traces of snow and what appeared to be blood embedded in sole — Officer determined that accused was driver in collision — Officer noted signs of impairment — Accused was arrested for impaired driving and read his s. 10(b) rights under Canadian Charter of Rights and Freedoms — Accused was charged with dangerous driving causing bodily harm, failing to stop at scene of accident knowing that bodily harm has been caused to another person, and impaired driving causing bodily harm — Accused was also charged with two offences under Traffic Safety Act — Accused brought application for exclusion of evidence — Application granted — Statement made by accused, indicia of impairment by alcohol, and traces of snow and what appeared to be blood on accused’s shoes were excluded from evidence — Accused’s rights under ss. 7, 8, and 10(b) of Charter were violated — Detention arose as soon as officer directed accused to go to living room — Ac- cused had right to be informed of his s. 10(b) Charter right upon detention — Accused’s shoes were subject to unlawful and unreasonable search in violation of s. 8 of Charter — Officer’s inspection of accused’s shoes was not made with lawful authority. Criminal law –––– Charter of Rights and Freedoms — Life, liberty and security of person [s. 7] — Miscellaneous –––– Accused was involved in single vehicle accident after leaving neighbourhood pub — Accused’s pick-up truck veered out of control, crossed opposite lane of travel, and smashed head-long into cement block retaining wall — Pas- senger in vehicle was seriously injured — After accident, accused walked back to his residence and police were called — Passenger was retrieved by accused and another roommate and brought back to residence — Police arrived — Officer directed accused to go into living room — Accused stated to officer, “I was at home, and [passenger] showed up all bloody” — Officer observed that accused’s shoes contained traces of snow and what appeared to be blood embedded in sole — Officer determined that accused was driver in collision — Officer noted signs of impairment — Accused was arrested for im- 260 MOTOR VEHICLE REPORTS 4 M.V.R. (6th) paired driving and read his s. 10(b) rights under Canadian Charter of Rights and Free- doms — Accused was charged with dangerous driving causing bodily harm, failing to stop at scene of accident knowing that bodily harm has been caused to another person, and impaired driving causing bodily harm — Accused was also charged with two offences under Traffic Safety Act — Accused brought application for exclusion of evidence — Application granted — Statement made by accused, indicia of impairment by alcohol, and traces of snow and what appeared to be blood on accused’s shoes were excluded from evidence — Accused’s rights under ss. 7, 8, and 10(b) of Charter were violated — Detention arose as soon as officer directed accused to go to living room — Ac- cused had right to be informed of his s. 10(b) Charter right upon detention — Accused’s shoes were subject to unlawful and unreasonable search in violation of s. 8 of Charter — Officer’s inspection of accused’s shoes was not made with lawful authority. Criminal law –––– Charter of Rights and Freedoms — Arbitrary detention or imprisonment [s. 9]. Cases considered by T.C. Semenuk Prov. J.: R. v. Evans (1991), 4 C.R. (4th) 144, [1991] 1 S.C.R. 869, 63 C.C.C. (3d) 289, 124 N.R. 278, 3 C.R.R. (2d) 315, 1991 CarswellBC 918, 1991 CarswellBC 417, [1991] S.C.J. No. 31, EYB 1991-67049 (S.C.C.) — considered R. v. Geroux (2008), 441 A.R. 274, 2008 ABPC 49, 2008 CarswellAlta 465, [2008] A.J. No. 377 (Alta. Prov. Ct.) — referred to R. v. Godoy (1998), 235 N.R. 134, 117 O.A.C. 127, 21 C.R. (5th) 205, 131 C.C.C. (3d) 129, 168 D.L.R. (4th) 257, 1998 CarswellOnt 5224, [1999] 1 S.C.R. 311, 1998 Cars- wellOnt 5223, [1998] S.C.J. No. 85 (S.C.C.) — considered R. v. Grant (2009), 193 C.R.R. (2d) 1, 2009 SCC 32, 2009 CarswellOnt 4104, 2009 Cars- wellOnt 4105, 253 O.A.C. 124, 82 M.V.R. (5th) 1, 245 C.C.C. (3d) 1, 66 C.R. (6th) 1, [2009] 2 S.C.R. 353, 391 N.R. 1, 309 D.L.R. (4th) 1, [2009] A.C.S. No. 32, [2009] S.C.J. No. 32 (S.C.C.) — considered R. v. Harrison (2009), 193 C.R.R. (2d) 74, 2009 SCC 34, 2009 CarswellOnt 4108, 2009 CarswellOnt 4109, 253 O.A.C. 358, 245 C.C.C. (3d) 86, 66 C.R. (6th) 105, [2009] 2 S.C.R. 494, 97 O.R. (3d) 560 (note), 391 N.R. 147, 309 D.L.R. (4th) 87, [2009] S.C.J. No. 34 (S.C.C.) — considered R. v. Mann (2004), 21 C.R. (6th) 1, 241 D.L.R. (4th) 214, 185 C.C.C. (3d) 308, 122 C.R.R. (2d) 189, 324 N.R. 215, [2004] 3 S.C.R. 59, 2004 SCC 52, 2004 Car- swellMan 303, 2004 CarswellMan 304, [2004] 11 W.W.R. 601, 187 Man. R. (2d) 1, 330 W.A.C. 1, [2004] S.C.J. No. 49, REJB 2004-68801 (S.C.C.) — considered R. v. Nguyen (2008), 2008 CarswellOnt 298, 2008 ONCA 49, 55 C.R. (6th) 82, 166 C.R.R. (2d) 207, 231 C.C.C. (3d) 541, 232 O.A.C. 289, [2008] O.J. No. 219 (Ont. C.A.) — considered R. v. Russell (2008), 2008 CarswellAlta 1056, 2008 ABPC 166, 177 C.R.R. (2d) 108, [2008] A.J. No. 870 (Alta. Prov. Ct.) — considered R. v. Suberu (2009), 193 C.R.R. (2d) 96, 2009 SCC 33, 2009 CarswellOnt 4106, 2009 CarswellOnt 4107, 390 N.R. 303, 66 C.R. (6th) 127, 245 C.C.C. (3d) 112, 97 O.R. (3d) 480 (note), [2009] 2 S.C.R. 460, 309 D.L.R. (4th) 114, 252 O.A.C. 340, [2009] S.C.J. No. 33 (S.C.C.) — considered R. v. Startup T.C. Semenuk Prov. J. 261

Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 7 — considered s. 8 — considered s. 9 — considered s. 10 — considered s. 10(a) — considered s. 10(b) — considered s. 24 — considered s. 24(1) — considered s. 24(2) — considered Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 249(3) — pursuant to s. 252(1.2) [en. 1999, c. 32, s. 1] — pursuant to s. 255(2) — pursuant to s. 495(1)(a) — considered Traffic Safety Act, R.S.A. 2000, c. T-6 Generally — referred to

APPLICATION by accused for exclusion of evidence.

T.C. Semenuk Prov. J.: Introduction 1 On the date in question, the Accused was involved in a single vehicle accident after leaving a neighborhood Pub. A couple blocks away from his residence, his pick-up truck veered out of control, crossed the opposite lane of travel, and smashed head-long into a cement block retaining wall. The passenger in his vehicle was seriously injured when his head penetrated the windshield. After the accident, the Accused walked back to his residence and the police were called. The injured passenger was retrieved by the Accused and another roommate and brought back to the residence. When the police arrived at the residence, the Accused made an inculpatory statement; certain observations were made of his physical condition, and some physical evidence was found that led to his arrest for impaired driving. 2 As a result of the accident, the Accused is charged with three (3) Criminal Code offences including: dangerous driving causing bodily harm, failing to stop at the scene of an accident, knowing that bodily harm has been caused to another person and impaired driving causing bodily harm. He is also charged with two (2) Traffic Safety Act offences, failing to remain at the scene of an accident and failure to report an accident. 262 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

3 Defence Counsel has given Charter Notice alleging violations of Sections 7, 8, 9, 10(a) and 10(b) of the Charter. If the Court finds a violation or violations of the Charter, pursuant to Section 24(2) of the Charter, Defence Counsel submits that any statement made by the Accused after he was detained in his residence; any observations made by the police as to his physical condition in the residence and any physical evidence found by the police in the residence, ought to be excluded from evidence. 4 For the reasons that follow, the Court finds that Sections 7, 8, and 10(b) of the Charter were violated. Pursuant to Section 24(2) of the Charter, the evidence sought to be excluded by Defence Counsel, is excluded from evidence.

Facts 5 The Accused is charged in an Information as follows: Count 1: On or about the 23rd day of January, 2009, at or near Calgary, Al- berta, did operate a motor vehicle on a highway or in a public place in a manner that was dangerous to the public, having regard to all the circumstances including the nature, condition and use of such place and the amount of traffic that at the time was or might reasonably be expected to be on such highway (or in such place), and did thereby cause bodily harm to Devon Heilemann, contrary to Section 249(3) of te Criminal Code of Canada. Count 2: On or about the 23rd of January, 2009, at or near Calgary, Alberta, having had the care, charge or control of a vehicle that was involved in an accident with Devon Heilemann, and knowing that the or being reckless to the said Devon Heilemann having bodily harm, did, with intent to escape civil or criminal liability, unlawfully fail to offer assistance to any person injured or appearing to require assistance, contrary to Section 252(1.2) of the Criminal Code of Canada. Count 3: On or about the 23rd day of January, 2009, at or near Calgary, Al- berta, did unlawfully operate a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or a drug, and did thereby cause bodily harm to Devon Heilemann, contrary to Section 255(2) of the Criminal Code of Canada. 6 The trial commenced with a voir dire to determine the Charter issues raised by Defence Counsel in his Charter Notice. The Crown agreed to call all it’s evidence in the context of the voir dire. Depending on the Court’s ruling, Coun- sel agreed that all evidence heard in the voir dire would be applied to the trial proper. 7 The Crown called five witnesses in the voir dire including: Devon Heilemann, Lane Morey, Billy Ray Gorrell, and Constables Brewster and Wil- kinson, members of the Calgary Police Service (CPS). The Accused, Dylan Star- tup, testified in his own defence. R. v. Startup T.C. Semenuk Prov. J. 263

8 Devon Heilemann testified in examination-in-chief, that he was 24 years of age and gainfully employed as a welder. He worked all over Alberta. He met the Accused, Dylan Startup, through a friend named Lane Morey. He met the Ac- cused a couple of times and they were only casual friends. 9 Sometime between 6:00 - 7:00 p.m., on the date in question, he went to visit his friend, Morey, and his girlfriend, Kelsy, at her residence in Marda Loop in southwest Calgary. They sat around and had a couple of casual drinks. 10 At about 11:00 p.m., the accused Startup, showed up at the residence. He was being loud and obnoxious. He was being ignorant and was ready to party. He said, “Where’s the booze?”, and poured himself a drink. He appeared to be half drunk at the time. He was drinking gin and orange juice, and freely poured the gin. While at the residence, he had at least three drinks. 11 Between 7:00 - 11:00 p.m., when the Accused showed up, he drank 6 -7 beers. He did not have a large amount of alcohol to drink, and only felt “slightly” impaired by the beer he drank. He “maybe” had a whiskey after the Accused arrived. On a scale of 1 to 10, in terms of impairment, he was at 3 or 4 maximum. 12 After being at the residence for only 30 to 45 minutes, the Accused asked him if he wanted to go to Wolfman’s Pub, located a couple blocks away, and he replied, “Sure”. He and the Accused left the residence around midnight to go to the Pub. 13 He drove his 1991 Jeep to the Pub and the Accused drove his two-wheel drive, red, 1992 Chevy extended cab pick-up truck. It only took about 30 seconds to drive to the Pub from the residence. 14 After arriving at the Pub, he and the Accused sat at a table. After the Ac- cused ordered a single or a double whiskey for each of them, the waitress who was serving wouldn’t come back to their table, because he was acting up. 15 While at the Pub, he had 2 -3 more drinks. He was drinking single rye and cokes. The Accused was also drinking rye and coke, and had the same, or more to drink. He didn’t know if the Accused was drinking singles or doubles. He was also drinking at a faster rate. 16 The music was not loud in the Pub, and the Accused started dancing by himself. Nobody else was dancing. He was also being arrogant, and getting “in people’s faces”. He was making a fool of himself, and he was embarrassed to be with him. The only other time he met the Accused, he appeared to be calm and relaxed. He didn’t really notice anything unusual about the Accused’s motor abilities, or his ability to speak. 17 As the Accused was getting louder and louder, he was trying to coax him to leave the Pub. He said, “Let’s go back to the house”. They had been at the Pub for about one hour, and he felt that he had too much to drink, to drive his Jeep back to the house. He decided to leave his Jeep at the Pub. In a moment of 264 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

weakness, he also decided to drive back to the house with the Accused in his pick-up truck. 18 He got into the front passenger seat of the Accused’s truck, and did not put on his seat belt. As the Accused pulled out of the parking lot on to a residential street, he was driving erratically. There were cars parked on both sides of the street, and he was “fish tailing” all over the road. He was doing it intentionally by driving at an excessive speed and over steering his truck. He came close to hitting parked vehicles. After driving half a block in about 15 seconds, he hit a cement block wall. His heart was going at the time, and he saw it coming. After impact, the whole front end passenger side of the truck was caved in, and the air bags deployed. 19 On hitting the wall, he flew forward putting his head through the windshield. His face was bleeding, but he did not lose consciousness. He didn’t think the Accused was injured. He asked the Accused to call an ambulance, and he replied, “Fuck that, let’s go back to the house”. The Accused then got out of the truck, and ran back to the house. 20 He was in shock, and tried to get out of the truck. Outside the truck, he was getting dizzy, and his face was bleeding profusely. He had a cell phone on him and tried calling 9-1-1. He didn’t know where he was, because he was not familiar with Calgary. He called a second time, and then heard his friend, Lane Morey, coming to the accident scene. Morey then helped him walk back to the house. 21 On entering the house he saw the Accused sitting on the couch in the living room watching television. He didn’t think the Accused was drinking any alcohol at the time, and was very quiet, not saying anything. He took a seat in the kitchen and Morey called 9-1-1. Morey got him a towel to hold to his face, and while sitting in the kitchen, he almost lost consciousness. Kelsey was asleep in a bedroom at the time. 22 The police arrived at the residence about 15 minutes later. He thought his friend, Morey, opened the door, but he wasn’t sure. The police were in the kitchen with some paramedics tending to him. The police then went to talk to the Accused in the living room. 23 He was taken to the Foothills Hospital by the Emergency Medical Techni- cians (EMS). His shoulder was injured. He had a major concussion, and it took 180 stitches to close the cuts on his face. Glass fragments were removed from his face and skull. He stayed in the hospital overnight. He was given prescrip- tion medication for the pain to his shoulder and face, but didn’t take it. His shoulder was still stiff and sore, and he was forced to give up riding his dirt bike. Seven days after the accident, he went back to work. As a result of his shoulder injury, he was not able to resume his normal tasks at work, even after taking physiotherapy. He was left with lots of scars on his face and in his hair line. He R. v. Startup T.C. Semenuk Prov. J. 265

had scarring all over the right side of his face. The scarring can be repaired with surgery, but he couldn’t afford the expense. 24 He gave a statement to the police while he was getting stitched at the hospital. He told the police that the Accused drank three (3) double rye and cokes at the Pub. When they left the Pub that night, he was not drunk. He put himself at a level of 4, on a scale of 1 to 10, in terms of alcohol impairment. 25 On cross-examination, he testified that he and Morey were good friends. He met Morey in grade 2, and they remained friends throughout grade school and high school, growing up in Wainwright, Alberta. When Morey moved to Cal- gary, he would come to visit him at least six times every year. They would hang out, have drinks and dinner. 26 On the date in question, he had been invited over to Morey’s girlfriend’s place. He had to work the next day, and he went over to socialize, and have a few drinks. He found out that the Accused was also living at that residence at the time. 27 Prior to arriving at the residence, he did not consume or bring any alcohol. He had worked that day, and arrived at the residence around 7:00 p.m. When he arrived, there was only Morey, Kelsey and himself there at the time. While he was at the residence, he drank 6 - 7 cans of beer. That was not a lot of alcohol for him to drink, and he didn’t feel the effects of the alcohol “much”. 28 There was beer in the fridge, and he was helping himself. There was also an upside down liquor stand dispenser in the kitchen containing vodka, rye and gin. When you hit a button, one (1) ounce of alcohol was automatically dispensed. 29 Morey and Kelsey were also drinking that night. He thought Morey was drinking whiskey and beer. Kelsey was drinking gin or vodka. She was not drinking beer. They were just socializing together and listening to music. 30 He only drank 6 - 7 beers, no more. He usually counts his drinks, and doesn’t mix drinks. He weighed 165 pounds at the time, and for him to get drunk, he would have to drink 15 - 20 beers. 31 He agreed that after the accident, some parts of his memory were not “fresh”. At the Pub, he thought the Accused had at least two drinks. He saw the Accused order drinks at least two times. 32 When the Accused arrived at the residence around 11:00 p.m., he was kind of loud and “slightly” obnoxious. He was not aggressive. He was arrogant and appeared to be upbeat and excited. He didn’t know where the Accused had been prior to arriving at the residence. He could have been out with a couple of friends having a couple of drinks. 33 He saw the Accused pour himself a drink. He was pretty sure the Accused was drinking gin or vodka with orange juice. He agreed that it was not a “free pour” and that the Accused poured himself a single shot using the automatic liquor dispenser. 266 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

34 The Accused poured himself at least 3 - 4 drinks. He knew this, because he was sitting in the kitchen and had to move 2 - 4 times, so the Accused could access the liquor stand. He couldn’t say about how much alcohol the Accused was putting in his drinks, but thought they were only single shots. 35 He remembered having a telephone conversation with Crown Counsel on November 17, 2009, about the incident. He agreed that in that statement, he told the prosecutor that the Accused arrived at the residence between 11:30 p.m. and midnight. He agreed that he wasn’t certain when the Accused arrived. He also agreed that he could have told the prosecutor that he wasn’t sure the Accused had anything to drink at the residence. He also agreed that he might have told the prosecutor that he drank whiskey at the residence. He also agreed that he could have told the prosecutor that he began drinking at the residence sometime between 6:00 - 7:00 p.m., and that he estimated that he drank 10 beers. 36 In his statement to the police at the hospital, he agreed that there was not anything there about how much he had to drink at the residence prior to going to the Pub. He agreed that 10 months later, he told the prosecutor on the telephone that he had 10 beers at the residence, and at trial, he testified that he only had 6 - 7 beers. 37 He agreed that they could have left the residence later than midnight. It could have been 12:10 - 12:15 - 12:18 a.m. 38 In describing the Accused as “obnoxious” that evening, he meant the Ac- cused was arrogant, upbeat and excited. He was being a fool or a buffoon at the Pub. 39 When they arrived at the Pub and sat down at a table, they each ordered a rye and coke from the waitress, and he paid for the drinks. He thought that the drinks were single shot drinks. He didn’t hear the Accused order doubles, and the drinks were not served in tall glasses. He gave the waitress $20.00, and told her to keep the change. After the waitress would not serve them anymore at the table, the Accused went to the bar and ordered drinks. He stayed seated at the table, and really didn’t know how many drinks the Accused ordered at the bar, or the alcohol content of the drinks. He had 2-3 more rye and cokes at the Pub, and paid for his own drinks. 40 He agreed that the Accused was upbeat and excited at the house and at the Pub. 41 He agreed that he could have told the prosecutor on the telephone that the Accused’s level of impairment did not change from his leaving the house and leaving the Pub, and that he was still being loud and obnoxious. He agreed that in his statement to the police at the hospital and his conversation with the prosecutor on the telephone, he never described the Accused at the Pub as being a buffoon. R. v. Startup T.C. Semenuk Prov. J. 267

42 He never saw the Accused on the evening in question fall, hold on to objects or people for balance, drop or knock over a drink, stumble into anyone, or bump into a table. Other than the Accused dancing in the Pub, he didn’t notice anything unusual about the Accused’s physical behaviour. He did not recall the Ac- cused having slurred speech. 43 He did not have any concerns about the Accused’s ability to drive his truck being impaired by alcohol on leaving the Pub, until he started to drive. He wasn’t certain if the roads were covered with snow, or whether it was snowing at the time. He didn’t know if there was snow piled up on the curbs off the road. 44 The Accused’s left turn, out of the parking lot of the Pub, onto the street, was normal. As he was driving up the street, he punched the accelerator and was fish tailing. He thought the Accused was intentionally driving that way. He thought the Accused’s manner of driving was affected by the alcohol he drank. He couldn’t say if the snow on the road made it more difficult for the Accused to control his vehicle. 45 On being shown photographs of the accident scene, he agreed that front tires of the Accused’s truck were buried half way in snow, and that there were foot prints visible in the snow. It was dark at the time, and he didn’t know about the street lights on the street. When he asked the Accused to phone an ambulance and the Accused stated, “Fuck that, let’s go to the house”, he didn’t know if the Accused thought he would be more comfortable at the house. When the Accused left him at the scene of the accident, he agreed the house was only a short distance away, and the Accused could have been going to the house to get help. 46 After Morey took him back to the house, the Accused tried to tell him what happened, but he didn’t want to hear it. He agreed that he was angry at the Accused. When he stated that the Accused was not drinking alcohol after the accident, he could be mistaken, and he could have been drinking. 47 He agreed that in his telephone conversation with the prosecutor, he could have said that it was possible that his ability to observe and recall events on the evening in question was affected by the alcohol he drank. 48 He didn’t remember if the Accused came back to the scene of the accident with Morey to help him back to the house. He denied that the Accused, prior to going back to the house after the accident, asked him to come back to the house, and that he refused. He denied threatening to kill the Accused in the kitchen when he got back to the house. He didn’t know if the Accused called 9-1-1, or Morey called 9-1-1. 49 He couldn’t recall in his conversation with the Accused on the telephone, after the accident, when he asked the Accused to call an ambulance, if the Ac- cused simply replied, “No, let’s go back to the house”. 268 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

50 On re-examination, he testified that he saw Morey drinking beer and whiskey, but he made no observation about his being affected by the alcohol he drank. 51 At the Pub, he didn’t see anyone approach the Accused about his behaviour. He couldn’t say why the Accused was making such a fool of himself, but he noticed it was out of the ordinary, and he stood out. It wasn’t busy in the Pub at the time. 52 After the impact of hitting his head on the windshield, he was dazed, and saw a hole in the windshield. The Accused could see that he put his face through the windshield. After exiting the truck, the Accused did not offer him any assistance back to the house. He did not wait for him, and he did not look back. He didn’t remember if the Accused returned to the scene of the accident with Morey. 53 He had no recollection of the Accused drinking alcohol at the house after the accident. He was seated in the kitchen, there was beer in the fridge, and he would have to move out of the way for the Accused to get a drink. 54 Morey used the home phone to call 9-1-1, when they got back to the house. He didn’t recall if there was more than one land line in the house. 55 On being questioned by the Court, he testified that he estimated the Ac- cused’s speed prior to the accident, to be 40 - 50 kilometers per hour. The accident happened within one block. The Accused’s truck crossed over the opposite lane of travel, went up on the sidewalk, and hit the wall. 56 Lane Morey testified in examination-in-chief, that he was 25 years old and worked in the oilfield. He and Devon Heilemann, grew up together and had been best friends for at least 15 years. He also knew the Accused, Dylan Startup, as a friend who lived in the same residence as his girlfriend, Kelsey. 57 On the date in question, he went to Kelsey’s place around 6:30 - 7:00 p.m. He brought a 12 pack of Budweiser beer and a bottle of Jagermeister with him. He, Kelsey and Heilemann, were sitting in the kitchen having some drinks. 58 There was a liquor stand with a dispenser located on the kitchen table. The liquor stand contained three bottles of liquor, including gin, whiskey and vodka. He and Heilemann, were drinking Budweiser beer, and Kelsey was drinking gin, orange juice and sprite. 59 The Accused, Startup, showed up at the residence around 9:00 p.m., with two friends named Corey and Tyler. By the time the Accused arrived, he had already consumed 3 - 4 beers. Heilemann, had about the same amount of beer to drink. 60 After the Accused arrived, everyone was drinking alcohol, but he wasn’t 100 percent sure, what the Accused was drinking. 61 At around 10:00 p.m., he and Kelsey went to Kelsey’s bedroom, and Heilemann and the Accused left the residence. He didn’t know what time they R. v. Startup T.C. Semenuk Prov. J. 269

left the residence. He came out of the bedroom to sleep on the couch, and nobody was in the house. 62 He wasn’t too sure how the Accused was behaving that evening, he wasn’t really paying attention. He had no comment on how the alcohol was affecting the Accused or Heilemann. When he went to Kelsey’s bedroom, he was feeling good and loose from the alcohol he drank. 63 Later that evening, the Accused returned to the residence and woke him up when he was sleeping on the couch. He seemed kind of “stunned”. He asked the Accused, “What’s going on?” He replied, “I crashed the truck”. He asked the Accused, “Where is Devon?” “ He replied, “ He is still in the truck. “ 64 The Accused seemed skittish, stunned, and scared. He could not tell if the Accused was showing signs of alcohol consumption. 65 He was mad at the Accused and asked, “Why is Devon still in the truck?” The Accused replied, “He didn’t want to come”. He then asked the Accused to show him where Devon was, and the Accused took him to the scene of the accident. It was located about a block and a half away from the residence. The Ac- cused told him they went to Wolfman’s Pub, and the accident happened on the way home. 66 When he and the Accused got to the accident scene, Heilemann was standing outside the truck bleeding and calling 9-1-1 on his cell phone. The Accused’s truck had crashed into a retaining wall. He put his coat over Heilemann’s face to try and stop the bleeding. Heilemann was moving around, and was able to communicate. He put his arms around Heilemann, and carried him back to the house. Heilemann, had a hard time seeing, and had glass in his eye. It took a couple of minutes to get back to the house. The Accused walked beside them on the way back to the house. The Accused was not saying anything, and didn’t do anything to assist Heilemann. 67 When they got back to the house, he called 9-1-1. He told the dispatcher that his buddy had been in an accident, was bleeding from the head and needed an ambulance. About 5 - 10 minutes later, the police and EMS arrived. 68 The Accused was sitting in the living room. He looked scared. Heilemann was sitting at the kitchen table. He was faint, and almost passed out. The bleeding had slowed down. 69 When the police arrived, he thought the Accused let them in the house. The police arrived first, then EMS arrived. EMS were attending to Heilemann in the kitchen, and the police were speaking to the Accused in the living room. The Accused looked scared. 70 The police took a statement from Heilemann in the kitchen, and then EMS took him to the hospital. 270 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

71 He had consumed alcohol with the Accused in the past and had seen him drunk. When the Accused is drunk, he behaved almost normal. He is a bit loose and happy. 72 That evening, the roads were not in very good condition. The road had not been cleared. They were covered with snow, but it was not snowing. Tire tracks were visible on the road with a hump of snow in the middle. 73 The police were at the house for about a half hour, before taking the Ac- cused away. 74 On cross-examination, he testified that he and Kelsey had been seeing one another for 4- 5 months. He would go to her place every weekend, and see her 2- 3 times during the week. 75 On the date in question, he got to the house between 6:30 - 7:00 p.m. He and Heilemann were drinking beer, and possibly some whiskey. 76 Other than the beer he brought, there was no other beer in the fridge. Prior to coming to the house, he spoke with Kelsey and Heilemann on the phone, and they told him to pick up some beer and mix. 77 When he arrived, there was only he, Kelsey, and Heilemann at the house. The Accused showed up with his two friends around 9:00 p.m., and they were all sitting around having drinks. There was no animosity, anger or hard feelings between anyone in the house. The Accused was not acting strange or goofy. 78 He estimated the Accused returned to the house after the accident around 1:00 a.m. His conversation with the Accused about the accident lasted about five minutes before they went back to the truck. Neither he nor the Accused called 9- 1-1 prior to leaving the residence. 79 When they got back to the house, he asked the Accused to get a clean towel for Heilemann’s face, and he stood by in the kitchen while he helped Heilemann. 80 He agreed that it could have been snowing during the early morning hours that evening. 81 He agreed that when they got back to the house, he suggested to the Accused that he should have a beer, but he didn’t see the Accused get a beer. 82 Before leaving the house and going to the Pub, he thought Heilemann drank 4-5 beers. He didn’t think he drank 6 -7 beers. 83 On re-examination, he testified that he got 1:00 a.m. as the time he and the Accused went back to the accident scene, after looking in his cell phone, after calling his parents. He called his parents between 2:00 - 2:30 a.m., and worked back from that time. 84 When he, Heilemann and the Accused got back to the residence, he did not remember the Accused at any point saying, “We should call 9-1-1”. He asked R. v. Startup T.C. Semenuk Prov. J. 271

the Accused to get the phone, and he ended up getting the phone himself. The Accused just stood there. 85 On being questioned by the Court, he testified that prior to going to bed, he consumed 3 - 4 beers, 1 ounce of whiskey and 2 shots of Jagermeister. 86 After returning from the hospital seeing Heilemann, at about 4:00 a.m., he and the Accused had an altercation in the hallway between the kitchen and the living room, over the incident. 87 Constable Gorrell testified in examination-in-chief, that he had been a mem- 1 ber of the CPS for 3 /2 years. He worked out of the 2 District Office in Calgary. 88 On the date in question, he was on duty and in uniform. He was operating a marked police vehicle, and responded to a 9-1-1 call. of a car accident in Marda Loop, in southwest Calgary, with his partner Constable Prodaniuk. He didn’t know the precise location of the accident and was circulating for awhile around 33rd Ave. and 18th St. S.W. 89 After circulating, he found the accident scene where a truck had hit a retaining wall in an alleyway located behind 2101- 31st Ave. S.W. He found the accident scene between 1:30 - 1:40 a.m. He saw the tire tracks of the truck hitting the wall as it traveled northbound on 21st St. from 30th Ave. S.W. The truck had veered left, crossed over the lane of oncoming traffic, and hit the retaining wall. 90 Nobody was in the truck at the time. The air bags had been deployed, and there was significant damage to the front end of the truck. He saw blood in the snow, and the windshield was damaged. It looked like something had hit the windshield. 91 He did not recall if the truck was still running. He did not note if the keys were in the ignition, or if the lights were on. He then took nine (9) photographs of the damage to the outside of the truck. 92 The retaining wall the truck hit, was on private property next to a small ga- rage. The damage to the cinder block wall was minimal. 93 The area where the accident happened was illuminated by a street light. The roads were snowy and icy at the time, and he couldn’t see the pavement under the snow. He didn’t remember if the snow was fresh. 94 On doing a computer check, he determined from the Alberta licence plate on the truck, being JNE 311, that the Accused, Dylan Startup, was the registered owner. 95 The accident happened about a block and a half north of Wolfman’s Pub. 96 On cross-examination, he testified that he didn’t recall how he received the dispatch of the accident, whether it was over the air or on the computer in his police vehicle. 97 He did not hear any dispatch message to attend a residence located at 2032 - 31 Ave. S.W. 272 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

98 On investigating the accident, he went to the tire tracks first, and followed them backwards from the truck. The tracks led in a straight line north on 20th St., and then veered left across the opposite lane of travel into the retaining wall. There was no evidence from the tire tracks of the truck “fish tailing” in the snow, prior to veering left. 99 He had recorded in his notes that when he started his shift at 7:00 p.m., the weather was cold at -20 Celsius, and light snow. 100 He agreed that the roadway on 20th St. had fresh snow on it; the road had not been cleared and was snowy and icy. 101 He agreed that in some of the photographs he took, there was fresh snow on the roof, hood and windshield of the truck. 102 On being questioned by the Court, he testified that there is no posted speed limit northbound on 20th St., but it was a residential area, and would be 40 kilometers per hour. Considering the road conditions at the time, he thought a safe speed traveling in his police vehicle north on 20th St. would have been 30 kilometers per hour. 103 At this point in the trial, the Court entered a voir dire to determine the Char- ter issues raised by Defence Counsel in his Charter Notice. 104 Constable Brewster testified in examination-in-chief, that he had been a member of the CPS for three and a half years. He worked out of the 2 District Office in Calgary. 105 On the date in question, he was on duty, in uniform and working with his partner, Constable Wilkinson. He responded to a 9-1-1 dispatch “check on welfare” call. At this point, he did not know the reason for the call. He was dispatched to a residence located at 2032 - 31st Ave., S.W., in Calgary, to make sure everyone in the house was safe. 106 They arrived at the residence at 0205 hours. He approached the residence on foot, and rang the door bell. The Accused, Dylan Startup, answered the door. He asked the Accused if he called 9-1-1, and he replied, “No”. He pointed to the kitchen and said, “A guy in there needs help”. He stepped aside and they entered the house. 107 He went into the kitchen and saw Devon Heilemann and Lane Morey. Morey had called 9-1-1, and was applying pressure to Heilemann’s face. He noted that there was quite a bit of blood. 108 Morey was on the phone with 9-1-1, when they entered the house. He wanted EMS to be sent to the house. 109 When he looked at Heilemann’s face and saw lots of blood, his first thought was that he had been stabbed or assaulted. In speaking with Heilemann, he asked, “Have you been assaulted?” and he replied, “No, I was in a car accident”. He asked him, “Were you driving?” and he replied, “No”, he then asked, “Who R. v. Startup T.C. Semenuk Prov. J. 273

was driving?” and he replied, “See that guy in the living room rounding up the dog”. 110 He noted that there was a dog in the house and that it was barking and causing a commotion. The Accused was in the process of rounding up the dog. 111 While his partner stayed in the kitchen with Heilemann, he asked the Ac- cused to accompany him into the living room. He simply told the Accused, “Join me for a second”. He did not take physical control of the Accused. He then asked the Accused, “ What’s going on here?”, and he replied, “I was at home, and Devon Heilemann showed up all bloody”. 112 At that time, the Accused was not under arrest. He was talking to the Ac- cused as a witness. The Accused was not under any obligation to answer his questions. He did not make any promises, threats or inducements to the Ac- cused. He was not physically restrained in any way. 113 A call then came over his radio that Constable Gorrell had located the scene of the accident. He did not know that the Accused was the registered owner of the truck. 114 When he was talking to the Accused, he was standing by the couch in the living room near the entrance of the kitchen. He was standing within five feet of the Accused. 115 He noted that the Accused was not wearing shoes at the time. He wanted to determine if the Accused had been at the scene of the accident. He looked at a pair of white skate shoes with black laces located at the front entrance to the house. The Accused indicated they were his shoes. On looking at the shoes, he saw traces of snow and what appeared to be blood embedded in the sole. 116 At this point in his investigation, he determined that the Accused was the driver of the vehicle involved in the collision, and Heilemann was the passenger. 117 On speaking with the Accused, he noted slurred speech, glossy eyes, and he appeared confused and disoriented. He also noted that he had a tough time rounding up the dog. He was very unbalanced, supporting himself on walls or furniture. In his opinion, the Accused’s ability to operate a motor vehicle was impaired by alcohol. 118 At 0218 hours, he arrested the Accused for impaired driving and read him his Section 10(b) Charter right to Counsel and Police Caution from a card. 119 He did not read the Accused his Section 10(b) Charter right to Counsel at the outset of his investigation, because it was not until he was aware of the accident scene nearby, that an offence involving the Accused was committed. 120 In his first aid training, he was aware of the indicia displayed by people who are in shock. They include little emotion, high stress, pale complexion, sweating and shaking. On speaking with the Accused, the idea that he may be in shock never occurred to him. 274 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

121 After the Accused was arrested, he and his partner escorted him to the 2 District Office. After being charged, he was released a 0430 hours on an Ap- pearance Notice, and he left the Office in a taxi. 122 He started his shift that night at 1700 hours. He noted that it was cold and - 20 Celsius. There was snow on the road and it was slippery. He didn’t recall if it snowed that night. 123 When he drove to the Accused’s residence in his police vehicle, he had no issues driving in the area. He thought the unposted speed limit was 50 kilometers per hour. 124 In his view as a police officer, it falls on the driver to make sure that all passengers in a motor vehicle are wearing seat belts. 125 When he was in the residence speaking with the Accused, he didn’t notice any alcohol in the residence. He did not observe the Accused with any alcohol. He only spoke to the Accused for about 10 minutes. When he was speaking to the Accused, he was free to leave. He didn’t know whose house it was at the time. 126 On cross-examination, he testified that on the date in question, he had been a member of the CPS for about two and a haf years, and had conducted 6 - 8 impaired driving investigations. 127 He had been dispatched to the residence as a result of a “check on welfare” hang up call. 128 He agreed that he overheard the dispatcher say that it was an injury accident complaint, but he did not know where it was, only in the general location of the residence. 129 When the Accused answered the door, he pointed to the kitchen and said, “There is a guy in there who needs help”. He was not responding to a question, he volunteered that information. 130 When he entered the kitchen and saw Heilemann with injuries to his head and face, and lots of blood, he did not think this might be the person in the injury accident. He thought it might be an assault. He only found out that Heilemann was the person in the injury accident after he said, “I was in a car accident”. 131 In his mind, prior to speaking with Heilemann, there was only a “possibility” that he sustained his injuries in a car accident. After speaking with Heilemann, the scope of his investigation turned towards the car accident. It was his duty to determine who the driver was in the car accident. After Heilemann identified the Accused as being the driver, he started interacting with the Accused. At this point in his investigation, he thought it was “very likely”, the Accused was the driver and Heilemann was the passenger in the vehicle. 132 He agreed that there was nothing he saw to suggest that Heilemann was assaulted in the house. R. v. Startup T.C. Semenuk Prov. J. 275

133 After speaking with Heilemann, he agreed that in his notes he wrote, “I then take the Accused to the living room”. He disagreed that he was “directing” the Accused to go to the living room. He agreed that he did not write in his notes, “I asked him to join me”. 134 His reason for taking the Accused to the living room was to separate the Accused from the other residents in the house. It was also to give the others an opportunity to take care of Heilemann. 135 He maintained that he viewed the Accused as a potential witness and wanted to question him about the injury accident. 136 He agreed that, prior to talking to the Accused, he did not advise the Ac- cused as to the nature of his investigation. There was no Police Caution read to the Accused, and nor did he read to the Accused his Section 10(b) Charter right to Counsel. He also agreed that he did not tell the Accused he was free to leave. He couldn’t speculate on what he would have done, had the Accused tried to leave the house. 137 He agreed that he wanted to ask the Accused some questions, and he expected co-operation from the Accused. He wanted to investigate the Accused’s possible involvement in the injury accident. In his mind, there was a possible traffic infraction or criminal violation. The offence of hit and run was a possibility. 138 He agreed that he did not record the entire conversation with the Accused in his notes. He did not record all the questions he asked the Accused in his notes, because some of them were not relevant. He didn’t recall those questions now. 139 He testified that he made his notes after the Accused was released from custody, about two and a half hours after being at the house. He stated that he didn’t make any notes when the Accused was on the phone with his lawyer, because he didn’t want to interrupt that process by making notes and then being interrupted. 140 When he asked the Accused, “What’s going on?, he denied that he knew the location of the accident scene from radio message from Constable Gorrell. He wasn’t sure when he got that message, and he did not record the time in his notes. He only knew that it was nearby, that Heilemann was injured, and that the Accused was “possibly” the driver. 141 He agreed that he was only authorized to be in the residence as a result of the 9-1-1 call. 142 He also agreed that there was nothing in his notes about the Accused’s speech being slurred, his balance being unstable, his eyes being glossy, his being confused and disoriented, or his having any difficulty rounding up the dog. 143 He agreed that he asked the Accused, “Which shoes are yours?”. His reason for asking that question was to determine if there was evidence on the shoes putting the Accused at the accident scene. He did not tell the Accused that why he wanted to look at the shoes. 276 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

144 He didn’t believe the Accused when he said that he was at home when Heilemann walked in all bloody. He did not ask the Accused, “Were you the driver?”, because at that time, it was not within the scope of his investigation. 145 He agreed that he did not ask the Accused if he consumed alcohol that evening, and he did not smell alcohol on the Accused. He had no idea, at the time, how the accident happened. He had no details. 146 He did not think of getting an arrest warrant at the time, because he believed he was in the residence lawfully; there was an injured person in the house and he was investigating an injury accident. He agreed that he was not in hot pursuit when he entered the residence. He also agreed that he was not concerned about the continuation of an offence. He also believed that the Accused was involved in the accident, and that he likely had an offence involving the Accused. He did not believe that any offence occurred in the residence. Prior to the Accused’s arrest, he did not radio back to get any details about the accident. 147 After leaving the residence with the Accused, he drove by the scene of the accident, but did not stop. He saw Constable Gorrell at the scene. 148 He observed that the Accused had an injury to his forehead. He had a scratch and was bleeding. He didn’t recall asking the Accused if he banged his head, or how he did that. He did not ask the Accused if he was injured in a motor vehicle accident. He didn’t ask the Accused if he had any other injuries, or if he had a seat belt on at the time of the accident. 149 He never told the Accused that he was under investigative detention, because it never occurred to him that was happening. In his mind, the Accused was a “person of interest”. He never told the Accused that he was being investigated, because it never occurred to him. 150 He agreed that some of the indicia he noted about the Accused, when speaking to him, could be consistent with his being in shock. 151 On re-examination, he testified hearing the dispatcher say an injury accident, but he didn’t know where the accident scene was located. 152 When he wrote in his notes, “I then take the Accused to the living room”, he meant that the Accused accompanied him, and not that he had any sort of physical control over the Accused. 153 He didn’t make his notes earlier because he was holding continuity over the Accused. 154 He believed he was lawfully placed in the residence because of the injured party in the residence, and the “check on welfare” 9-1-1 call. 155 He didn’t recall the Accused complaining about any physical injuries. 156 On being questioned by the Court, he agreed that on his way to the residence, he drove north on 20th St., right past the scene of the accident, but he didn’t see it. R. v. Startup T.C. Semenuk Prov. J. 277

157 Constable Wilkinson, testified in examination-in-chief ,that he had been a member of the CPS for nine years. 158 On the date in question, he was on duty in uniform in a marked police vehicle, with his partner Constable Brewster. Sometime before 2:00 a.m., they received a dispatch of a 9-1-1 call, from a residence located at 2032- 31st Ave. S.W. in Calgary. 159 They drove to the residence arriving at 2:05 a.m. They didn’t know much about the details of the call. They pulled up to the house, and approached the front door on foot. The Accused answered the door, and motioned them into the house. He didn’t remember if they knocked on the door. 160 At the time it was cold, -20 Celsius, with snow and wind, and the roads were icy. 161 He didn’t recall exactly what the Accused said at the door, but it was to the effect, “He is bleeding all over in the kitchen”. 162 They went to the kitchen and saw a male in a chair bleeding profusely from the head. At the time, he thought that the Accused had been assaulted by another male. There were significant injuries to his face. He told him to remain seated, while a towel was being applied to his face by a friend. He saw a five-inch gash on the right side of his forehead, and the bone was exposed. 163 He attended to the male in the kitchen as a victim, and didn’t know what his partner Constable Brewster was doing. There was a call on the radio and he found out that there had been a motor vehicle injury accident in the area. At the time he didn’t know where Constable Brewster was in the house. 164 The male in the kitchen, Devon Helemann, told him that he was at Wolfman’s Pub with a friend. They left the Pub in his friend’s pick-up truck. His friend was driving, and on the way back to the house, he smashed into a retaining wall. He was not familiar with the area and phoned another friend. The other friend came to the accident scene and walked him back to the house. The Ac- cused, Dylan Startup. accompanied his friend to the scene of the accident and they walked back to the house. 165 When he was talking to Heilemann, the Accused was in the living room trying to put a large dog in a room. The dog was running around barking and was a distraction and the Accused said he would try to put the dog into a bedroom. For officer safety, and that of EMS, the dog should be put away for the house to be safe. 166 The information they had about the accident in the 9-1-1 call was incomplete. Once he spoke with Heilemann, he was able to put two and two together and knew what happened. After being let into the house, he had no further dealings with the Accused. He remained in the kitchen, taking care of Heilemann, until EMS arrived. 278 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

167 On being radioed by another police unit that came across the location of the motor vehicle accident, he did not recall if he communicated that to Constable Brewster. 168 On leaving the residence, the Accused was arrested and handcuffed on the way to the 2 District Office. They left the residence at 2:29 a.m. 169 He had no interaction with the Accused in the residence, and other than the smell of alcohol he noticed as he entered the house, he did not note any other indicia of impairment. 170 There was no need to inform the Accused of his Section 10(b) Charter right to Counsel when they entered the house, because they were there responding to a 9-1-1 call. When the Accused motioned them to the kitchen and a guy bleeding, they didn’t know what they were investigating at the time. 171 On the way to the residence, because of the weather and road conditions, they drove to the house slower than normal, but there were no issues. 172 On escorting the Accused to the 2 District Office, another unit voiced the location of the accident, and they stopped and looked. 173 At the District Office, he noted the Accused had a scuff on his face and a light abrasion on his forehead. He did not complain about any injuries. He also noted a smell of alcohol on the Accused. 174 On cross-examination, he testified that Constable Brewster may have been in the kitchen when he asked Heilemann what happened. 175 He didn’t recall if the Accused called 9-1-1 that night. He did not make a note of that in his police notes. He did make a note that Lane Morey called 9-1- 1. He didn’t recall if Morey made any comment as to the sequence of events leading to the accident. 176 He recalled that the Accused spoke slowly, and it seemed his speech was “slightly” slurred. His words were not entirely clear. 177 It was only after speaking to Heilemann that he concluded that the Accused and Heilemann were involved in the injury accident, and that the Accused was the driver and Heilemann was the passenger. 178 He didn’t recall asking Constable Brewster to investigate if the Accused was the driver of the truck at the time of the accident. He also didn’t recall telling Constable Brewster what Heilemann had said about the accident. 179 On being questioned by the Court, he testified that 20th St. northbound, towards the residence, has an incline and goes up quite a good hill. 180 Dylan Startup, the accused, testified in examination-in-chief, that he was 22 years old and gainfully employed as a mechanic. 181 On the date in question, he resided at 2032 - 31st Ave. S.W. in Calgary. He recognized Constables Brewster and Wilkinson as the officers who came to the door of his residence. They knocked and he opened the door. He didn’t say R. v. Startup T.C. Semenuk Prov. J. 279

much. He told them there was an incident, and pointed them in the direction of a kitchen. 182 He testified that he called 9-1-1, not for the police to attend. He was not aware of anyone else calling 9-1-1. 183 When the police were talking to Heilemann, he was asked to put the dog away. It was barking and being aggressive and he rounded him up and put him in the spare room. 184 After returning to the kitchen, Constable Brewster told him, “We need to talk”. He did not hear what Heilemann told the police. He obeyed Constable Brewster and went to the living room. Constable Brewster asked him several questions, and he didn’t say too much. 185 He testified that he answered Constable Brewster’s questions in the living room, because he was in a position of authority. He felt that he needed to answer Constable Brewster’s questions. 186 Constable Brewster told him, “Go get your shoes”. He did what he was told because Constable Brewster was in a position of authority. After he showed Constable Brewster his shoes, he was placed under arrest and read his Charter rights. 187 On cross-examination, he testified that Constable Brewster did not have any physical contact with him. He never touched him. He agreed that he invited the police into the residence after they knocked. As they entered, he stepped aside and pointed them towards the kitchen. 188 He maintained that he called 9-1-1 when he and Morey returned back to the residence with Heilemann. He called 9-1-1 on the house phone in the living room, after giving Heilemann a towel for his face. 189 He agreed that when he was speaking with Constable Brewster in the living room, he was not threatened. He was not told that he had to answer the questions being asked. He did not have any conversation with Constable Wilkinson in the living room. 190 He agreed that the dog in the house was being disruptive, and the police told him to round up the dog. He put the dog in the spare room and came back to the kitchen to see what was happening, and help if needed. 191 He maintained that when he returned to the kitchen, Constable Brewster said, “We need to talk”. Those were his exact words. He then followed Consta- ble Brewster to the living room. He believed Constable Brewster told him to go to the living room. 192 He agreed that when he told Constable Brewster , “I was at home, and Devon Heilemann showed up all bloody,”, he lied. 280 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

193 He maintained that when Constable Brewster asked him, “Which shoes are yours?”, he grabbed his shoes in the closet near the front entrance, and gave them to him. 194 When asked about his use of the words “position of authority”, he testified that he was in sea cadets when he was younger and there were always other people in a position of authority including his parents. 195 He admitted being arrested in the past for impaired driving charges when he was 17 or 18 years old. 196 On re-examination, he testified he agreed that Constable Brewster did not tell him he had to answer his questions. That being said, when he said, “We need to talk”, he felt he had no alternative. He did not feel that he could leave the residence. He testified, “I thought I wasn’t allowed to go anywhere”.

Issues 197 The Accused having testified in the voir dire, credibility is in issue. Aside from credibility, the main issue between Crown and Defence is whether or not the Accused was detained, in law, by police in his residence. Depending on the Court’s finding on that issue, the other Charter issues to be addressed may be summarized as follows: 1. Was the Accused “arbitrarily detained” in his residence on a hit and run investigation, in violation of Section 9 of the Charter, after the police lawfully entered the residence to investigate a “check on welfare” 9-1-1 hang-up call? 2. If the Accused was detained in his residence on a hit and run investigation, was the Accused not informed “promptly” of the reason for his detention in violation of Section 10(a) of the Charter? 3. If the Accused was detained in his residence on a hit and run investigation, was the Accused not informed “without delay” of his right to Coun- sel in violation of Section 10(b) of the Charter? 4. If the Accused was detained in his residence on a hit and run investigation, did the police conduct an unreasonable search and evidence in the residence in violation of Section 8 of the Charter? 5. Was the Accused arrested for impaired driving without “reasonable grounds”, contrary to Section 495(1)(a) of the Criminal Code, and in violation of Section 7 of the Charter? 6. If the Court finds a violation of Sections 7, 8, 9, 10(a) and/or 10(b) of the Charter, should any inculpatory statement made by the Accused, any indicia of impairment by alcohol displayed by the Accused and observed by the police in the residence, and any physical evidence found by the police in the residence, be excluded from evidence pursuant to Section 24(2) of the Charter? R. v. Startup T.C. Semenuk Prov. J. 281

Law and Analysis Relevant Charter and Criminal Code Sections 198 Sections 7, 8, 9, 10(a)(b) and 24(1)(2) of the Charter provide as follows: Life, Liberty and Security of Person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Search and Seizure 8. Everyone has the right to be secure against unreasonable search or seizure. Detention or Imprisonment 9. Everyone has the right not to be arbitrarily detained or imprisoned. Arrest or Detention 10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and Enforcement of Guaranteed Rights and Freedoms / Exclusion of Evidence Bringing Administration of Justice Into Disrepute 24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. 199 Sections 495(1)(a) of the Criminal Code provides as follows: Arrest without Warrant by Peace Officer / Limitation / Consequence of Arrest without a Warrant 495 (1) A peace officer may arrest without warrant (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence. 282 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

Credibility of the Accused 200 In R. v. Russell, 2008 ABPC 166 (Alta. Prov. Ct.), this Court at para. 65, stated as follows: [65] This Court’s view on the assessment of credibility of an Accused testifying in a Charter voir dire was fully expressed in R. v. Kicovic, 2004 ABPC 190. In that case, I decided that the principles enunciated by the Supreme Court of Canada in R. v. W.(D.), (1991) 63 CCC (3d) 397, do not apply. The Accused on a Charter application carries both an evidentiary and a legal or persuasive burden of proof on the balance of probabilities. Guilt or innocence is not in issue at this stage of the proceedings, and the reasonable doubt principle has no application. If the evidence of the Accused conflicts with that given by an investigating police officer, the Court must determine the probabilities of who is telling the truth. It is much the same as the Court assessing credibility in a civil case. If the Court is left in the position of not knowing who to believe, the application cannot, in law, succeed. The Defence will have failed to discharge its evidentiary burden. 201 I must say that I am troubled by the evidence given by the Accused. His demeanor while testifying, particularly on cross-examination by Crown Counsel, gave me concern. It appeared to me that he was not responsive to many of Crown Counsel’s questions, and he was going out of his way not to answer her questions directly. As well, he gave some answers in cross-examination that were not consistent with his examination-in-chief. In other words, he was shaken on cross-examination by Crown Counsel. Finally, he admitted on cross- examination that he lied to Constable Brewster when he said, “I was at home, and Devon Heilemann showed up all bloody”. 202 That being said, I was not impressed by the evidence given by Constable Brewster either. It appeared to me that he was not being wholly candid with the Court as to his dealings with the Accused. It was also apparent to me, that he withheld from the Court, his complete knowledge of what was said by Heilemann to his partner Constable Wilkinson in the kitchen, as to the motor vehicle accident that night and the Accused being the driver at the time His evidence, that he was only speaking to the Accused in the living room as a witness at the time is not believable. As well, on cross-examination by Defence Counsel, he gave evidence that was inconsistent with what he had recorded in his police notes, particularly in terms of “taking” the Accused to the living room. I have no doubt whatsoever that, prior to his speaking with the Accused in the living room, he had a reasonable suspicion that the Accused was the driver of a motor vehicle involved in a hit and run accident, after leaving a neighborhood Pub that night, that caused serious bodily harm to his passenger, Heilemann. R. v. Startup T.C. Semenuk Prov. J. 283

Detention 203 This Court is informed as to the meaning of word detention, in law, by the recent decision of the Supreme Court of Canada, in R. v. Grant, 2009 SCC 32 (S.C.C.), per McLachlin, C.J., and Charron, J., at para. 44. 204 Considering all the evidence, including the evidence of the Accused, De- fence Counsel has satisfied me on the balance of probabilities, that there was a psychological detention in the circumstances of this case. In my view, the Ac- cused was directed by Constable Brewster to go to the living room. This is confirmed in Constable Brewster’s notes where he wrote, “I then take the Accused to the living room”. He did not simply ask the Accused to “join him” in the living room, as he testified. I accept the Accused’s evidence that Constable Brewster told him, “We need to talk”. I also accept the Accused’s evidence, that he viewed Constable Brewster to be a person in authority and he needed to answer his questions. I do not accept Constable Brewster’s evidence that the Ac- cused was free to leave the residence or go to another room in the residence. He never told the Accused he was free to leave. I am satisfied that the Accused was under investigative detention, as soon as he entered the living room with Consta- ble Brewster. I disbelieve Constable Brewster’s evidence that he was only treating the Accused in the living room as a witness.

1. Was the Accused “arbitrarily detained” in his residence on a hit and run investigation, in violation of Section 9 of the Charter, after the police lawfully entered the residence to investigate a “check on welfare” 9-1-1 hang-up call? 205 Based on all the evidence, I am satisfied that Constables Brewster and Wil- kinson were lawfully in the Accused’s residence on the evening in question based on their response to a 9-1-1 “check on welfare” hang up call, and the principles enunciated by the Supreme Court of Canada, in R. v. Godoy (1998), [1999] 1 S.C.R. 311 (S.C.C.). 206 Defence Counsel argues that after entering the residence lawfully, the Ac- cused was “arbitrarily detained “ by Constable Brewster. I disagree. It is trite law to state that a lawful detention is not arbitrary. R. v. Mann (2004), 185 C.C.C. (3d) 308 (S.C.C.), per Iacobucci J., at para. 20. 207 A detention will be lawful when a police officer detains an individual for investigative purposes, if there are reasonable grounds to suspect, in all the circumstances, that the individual is connected to a particular crime such that detention is necessary. Mann, supra, per Iacobucci J., at para. 45. 208 Applying these principles to the case at Bar, I am satisfied on all the evidence, that Constable Brewster had reasonable grounds, based on his observations of the serious injuries to Heilemann and the information received from him in the kitchen, to suspect that the Accused was the driver of a motor vehicle that 284 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

night, after leaving a neighborhood Pub, involved in a single vehicle hit and run injury accident, that caused serious bodily harm to his passenger, Heilemann. 209 I find the investigative detention of the Accused in the living room of the residence to be lawful and not arbitrary. 210 There is no Section 9 Charter violation in the circumstances of this case.

2. If the Accused was detained in his residence on a hit and run investigation, was the Accused not informed “promptly” of the reason for his detention in violation of Section 10(a) of the Charter? 211 My understanding of the law is that compliance with Section 10(a) of the Charter is to be assessed from the perspective of what an Accused can reasonably be supposed to have understood, rather than the formalism of precise words used by police. R. v. Evans (1991), 63 C.C.C. (3d) 289 (S.C.C.), per McLachlin J., (as she then was), at p. 303. 212 In other words, if the circumstances of the case are such that an accused knows why he is being detained, it is not necessary for a police officer to expressly inform him as to the reason. R. v. Nguyen, 2008 ONCA 49 (Ont. C.A.), per The Court at paras. 16-17. 213 In all the circumstances of this case, I am satisfied the Accused knew why he was being detained in the living room by Constable Brewster. He was in the kitchen, or in close proximity, when Heilemann informed Constable’s Brewster and Wilkinson, that after leaving Wolfman’s Pub that night, on his way back to the house, he was the driver of a motor vehicle that smashed into a retaining wall causing serious bodily harm to Heilemann. It would have been perfectly obvious to the Accused, what Constable Brewster wanted to speak to him about. 214 There was no Section 10(a) Charter violation in the circumstances of this case:

3. If the Accused was detained in his residence on a hit and run investigation, was the Accused not informed “without delay” of his right to Counsel in violation of Section 10(b) of the Charter? 215 As I understand the law, Section 10(b) of the Charter seeks to address the vulnerability of an Accused relative to state control. Concerns about self-incrim- ination and interference with the liberty of an Accused are present as soon as detention is effected. As a result, in order to protect the Accused, he must be informed of his Section 10(b) Charter right to Counsel “without delay”, which means “immediately”, or as soon as detention arises. R. v. Suberu, [2009] 2 S.C.R. 460 (S.C.C.), per McLachlin C.J. and Charron J., at paras 39 -41. 216 In the circumstances of this case, detention arose as soon as Constable Brew- ster directed the Accused to go to the living room. This was shortly after he and Constable Wilkinson entered the residence at 0205 hours and spoke with R. v. Startup T.C. Semenuk Prov. J. 285

Heilemann in the kitchen. At that time, the Accused’s right to be informed of his Section 10(b) Charter right to counsel arose. Constable Brewster did not inform the Accused of his right to Counsel until 0218 hours, after he was arrested for impaired driving. 217 Accordingly, I find there was a Section 10(b) Charter violation in this case.

4. If the Accused was detained in his residence on a hit and run investigation, did the police conduct an unreasonable search and seizure of evidence in the residence in violation of Section 8 of the Charter? 218 Having found that the Accused was lawfully detained in the living room of his residence, I accept his evidence that he was told by Constable Brewster, “Go get your shoes” and that he did what he was told. I also accept his evidence that his white skate shoes with black laces were in the closet near the front entrance of the residence, and that he gave them to Constable Brewster. Constable Brew- ster wanted to see the Accused’s shoes to determine if he was at the scene of the accident that night. After examining the shoes and seeing traces of snow and what appeared to be blood embedded in the sole he determined the Accused was the driver of the vehicle involved in the collision, and that Heilemann was the passenger. He then noted various indicia of impairment by alcohol, and arrested the Accused for impaired driving. 219 In the circumstances of this case, the reason for Constable Brewster wanting to look at the Accused’s shoes was to further his investigation of the accident. His direction to the Accused, “Go get your shoes”, was made so he could conduct a search of the soles of the shoes to place the Accused at the accident scene, and to contradict the Accused’s prior statement, “I was at home, and Devon Heilemann showed up all bloody”. 220 Having regard to the principles enunciated in Mann, supra, per Iacobucci J., at para. 45, that direction to the Accused, and inspection of his shoes by Consta- ble Brewster, was not made with lawful authority. Unlike a lawful arrest, there is no lawful authority to search for evidence incident to a lawful detention. 221 In effect, the Accused’s shoes were subject to an unlawful and unreasonable search in violation of Section 8 of the Charter. 222 The subsequent discovery of traces of snow and what appeared to be blood embedded in the sole of the shoes was unlawful and unreasonable and in violation of Section 8 of the Charter.

5. Was the Accused arrested for impaired driving without “reasonable grounds” contrary to Section 495(1)(a) of the Criminal Code, and in violation of Section 7 of the Charter? 223 This Court had occasion to canvass the authorities dealing with “reasonable grounds”, to arrest pursuant to Section 495(1)(a) of the Criminal Code, in R. v. Geroux, 2008 ABPC 49 (Alta. Prov. Ct.). 286 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

224 I do not intend to repeat what I said in that case, but adopt the principles stated therein, as they may apply in the particular circumstances of this case. 225 In addition to the serious injury observations made by Constable Brewster and information received by him and Constable Wilkinson from Heilemann in the kitchen, there are three critical pieces of evidence that would give Constable Brewster ”reasonable grounds” to arrest the Accused for impaired driving in this case. Firstly, the Accused’s initial inculpatory statement to Constable Brew- ster on being questioned in the living room, “I was at home, and Devon Heilemann showed up all bloody”. Secondly, the indicia of impairment by alcohol displayed by the Accused in the living room and observed by Constable Brewster. Thirdly, the traces of snow and what appeared to be blood he found embedded in the sole of the Accused’s shoes. 226 In my view, absent these three pieces of evidence, Constable Brewster would not have “reasonable grounds”, to arrest the Accused. 227 In the result, this Court’s determination on this post Section 7 Charter issue will depend on my ruling on the exclusion of these three pieces of evidence pursuant to Section 24(2) of the Charter, as a result of the pre-existing Sections 10(b) and 8 Charter violations, already found in this case.

6. If the Court finds a violation of Sections 7,8,9, 10(a) and/or 10(b) of the Charter, should any inculpatory statement made by the Accused, any indicia of impairment by alcohol displayed by the Accused and observed by the police in the residence, and any physical evidence found by police in the residence, be excluded from evidence pursuant to Section 24(2) of the Charter? 228 The Supreme Court of Canada, in R. v. Grant, 2009 SCC 32 (S.C.C.), has recently revamped the framework for determining whether evidence obtained in violation of the Charter, ought to be excluded from evidence pursuant to Section 24(2) of the Charter. 229 In making that determination, the Court is to conduct a three-stage inquiry, assessing and balancing the following factors: 1. The seriousness of the Charter violation. 2. The impact of the violation on the Accused’s Charter protected interests; and 3. Society’s interest in the adjudication of the cased on the merits. 230 I will deal with the Section 10(b) Charter violation first in relation to any inculpatory statement made by the Accused, and any indicia of impairment displayed by him, and observed by the police in the residence. 231 In my view, the seriousness of the violation must be tempered by the fact that the Supreme Court of Canada, delivered it’s judgment in Suberu, supra, after the accused’s detention in this case. Until that decision was given, the law R. v. Startup T.C. Semenuk Prov. J. 287

as stated by the Supreme Court of Canada, in Mann, supra, was unsettled as to when the accused’s Section 10(b) Charter right to Counsel, arose on detention. 232 That being said, I cannot ignore the fact that, like the investigating officer in R. v. Harrison, 2009 SCC 34 (S.C.C.), I made a finding that Constable Brewster was not being candid with the Court. When he directed the Accused to go to the living room, he had reasonable grounds to suspect that he was the driver in a single vehicle hit and run accident that night, that caused serious bodily harm to his passenger, Heilemann. He was conducting an investigation into that allegation made by Heilmann and the Accused was not a witness, but his prime suspect. Despite Constable Brewster’s limited experience as a police officer, I find that he knew exactly what he was doing when he was questioning the Accused. The Accused was under investigative detention, and prior to questioning him, he ought to have informed him of his Section 10(b) Charter right to Counsel. This factor weighs heavily in favour of exclusion of the evidence in this case. 233 In passing, I note that this impaired driving investigation is taking place in the Accused’s residence, and not on the roadside. In the circumstances of this case, and there being no Roadside Demand, there is no suspension of the Ac- cused’s Section 10(b) Charter right to Counsel for the Court to consider. 234 In terms of the impact of the violation on the Accused’s Section 10(b) Char- ter right interest, the result for the Accused was serious. He made an inculpatory statement to Constable Brewster, without the benefit of choosing to give up his right to silence after seeking the advice of legal Counsel. As well, Constable Brewster was able to observe him in the living room while he was detained. As stated above, Section 10(b) of the Charter seeks to address the vulnerability of an Accused in state control in circumstances such as this. This factor weighs heavily in favour of exclusion of the evidence in this case. 235 In terms of society’s interest in the adjudication of the case on the merits, the seriousness and prevalence of drinking/driving offences in Alberta, and indeed across Canada, is well documented in the cases. This factor weighs in favour of admission of the evidence in this case. 236 I will now deal with the Section 8 Charter violation in relation to the traces of snow and what appeared to be blood embedded in the sole of the Accused’s shoes. This finding by Constable Brewster was significant, because it immediately led to the arrest of the Accused for impaired driving. 237 Crown Counsel, during the course of argument, and on a proper application of the principles in Grant, supra, conceded that the Court ought to exclude this evidence pursuant to Section 24(2) of the Charter. 238 I agree. The search for physical evidence of a crime, in the Accused’s residence, while he is under investigative detention, is not authorized by law. I also consider the fact that this evidence was found by Constable Brewster after the Accused’s Section 10(b) Charter right to Counsel, had been violated. The cumu- lative effect of both the Section 8 and 10(b) Charter violations in this case is 288 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

egregious. The impact on the Accused’s Charter protected interests was enor- mous, because it led to his arrest for impaired driving in this case. Although the seriousness and prevalence of drinking driving offences in Alberta and across Canada weighs in favour of admission, and a trial on the merits, in the particular circumstances of this case, I cannot ignore society’s other privacy interest in prohibiting searches and seizures by police in private residences absent lawful authority.

Ruling 239 Balancing all the factors, the inculpatory statement made by the Accused, “I was at home, and Devon Heilemann showed up all bloody”; the indicia of impairment by alcohol observed by Constable Brewster while he was under investigative detention in the living room of the residence; and the traces of snow and what appeared to be blood embedded in the sole of the Accused’s shoes are excluded from evidence, as admission would bring the administration of justice into disrepute. 240 Absent this evidence, I also find that the Accused was arrested for impaired driving by Constable Brewster without “reasonable grounds”, contrary to Sec- tion 495(1)(a) of the Criminal Code, and in violation of Section 7 of the Charter. 241 Any further exclusion of evidenced, post arrest, pursuant to Section 24(2) of the Charter, has not yet been argued. Application granted. R. v. Muthuthamby 289

[Indexed as: R. v. Muthuthamby] Her Majesty the Queen and Shantharuban Muthuthamby Ontario Court of Justice Fergus ODonnell J. Heard: June 9, 2010; August 24, 2010 Judgment: September 28, 2010 Docket: None given, 2010 ONCJ 435 Mr. B. Cohen for Crown Mr. J. Mass for Defendant, Shantharuban Muthuthamby Criminal law –––– Trial procedure — Preliminary matters — Powers of court — Stay of proceedings — Miscellaneous –––– Unlawful strip search — Accused charged with impaired driving — Police officers encountered accused unconscious and clearly impaired by consumption of alcohol while in driver’s seat of vehicle — Accused was arrested and officers performed stage I and stage II searches of accused, which searches revealed no weapons, drugs or related contraband items — Officers at police detachment, including officer in charge, decided to perform strip search of accused, which search inter alia required accused to spread his buttocks and move his genitals — Accused conceded that Crown could prove all elements of offence charged beyond reasonable doubt — Ac- cused brought application for judicial stay of proceedings occasioned by allegedly unlawful strip search — Application granted in part — Public had strong interest in seeing drinking-and-driving offences adjudicated on their merits — However, in present case, having regard inter alia to negative results of level II search and lack of imminent concern for officer safety, strip search was totally unreasonable — Police service had or ought to have been aware for at least ten years, due to previous judgments inter alia of Supreme Court of Canada, that strip searches were properly restricted to appropriate cases and that present case did not qualify — Having regard to accused’s admission of factual guilt and to seriousness of offence charged, stay of proceedings would not be appropriate — Accused was accordingly entitled to choose between sentences of one-day conditional term of imprisonment or one-dollar fine as remedy for unreasonable search, together with statutory minimum driving prohibition and opportunity to change plea to guilty in order to qualify for ignition interlock program. Criminal law –––– Charter of Rights and Freedoms — Unreasonable search and seizure [s. 8] — Manner of search –––– Unlawful strip search — Accused charged with impaired driving — Police officers encountered accused unconscious and clearly impaired by consumption of alcohol while in driver’s seat of vehicle — Accused was arrested and officers performed stage I and stage II searches of accused, which searches revealed no weapons, drugs or related contraband items — Officers at police detachment, including officer in charge, decided to perform strip search of accused, which search inter alia required accused to spread his buttocks and move his genitals — Accused conceded that Crown could prove all elements of offence charged beyond reasonable doubt — Ac- cused brought application for judicial stay of proceedings occasioned by allegedly unlaw- 290 MOTOR VEHICLE REPORTS 4 M.V.R. (6th) ful strip search — Application granted in part — Public had strong interest in seeing drinking-and-driving offences adjudicated on their merits — However, in present case, having regard inter alia to negative results of level II search and lack of imminent concern for officer safety, strip search was totally unreasonable — Police service had or ought to have been aware for at least ten years, due to previous judgments inter alia of Supreme Court of Canada, that strip searches were properly restricted to appropriate cases and that present case did not qualify — Having regard to accused’s admission of factual guilt and to seriousness of offence charged, stay of proceedings would not be appropriate — Accused was accordingly entitled to choose between sentences of one-day conditional term of imprisonment or one-dollar fine as remedy for unreasonable search, together with statutory minimum driving prohibition and opportunity to change plea to guilty in order to qualify for ignition interlock program. Cases considered by Fergus ODonnell J.: Doucet-Boudreau v. Nova Scotia (Department of Education) (2003), (sub nom. Doucet- Boudreau v. Nova Scotia (Minister of Education)) 232 D.L.R. (4th) 577, (sub nom. Doucet-Boudreau v. Nova Scotia (Minister of Education)) [2003] 3 S.C.R. 3, 2003 SCC 62, 2003 CarswellNS 375, 2003 CarswellNS 376, 312 N.R. 1, 45 C.P.C. (5th) 1, 112 C.R.R. (2d) 202, 218 N.S.R. (2d) 311, 687 A.P.R. 311, [2003] S.C.J. No. 63, REJB 2003-49438 (S.C.C.) — followed R. v. Agostinelli (2002), 2002 CarswellOnt 4447, [2002] O.J. No. 5008 (Ont. C.J.) — considered R. v. C. (N.) (2004), 2004 ONCJ 99, 2004 CarswellOnt 2643, [2004] O.J. No. 2723 (Ont. C.J.) — referred to R. v. Coulter (2000), 2000 CarswellOnt 2972, [2000] O.J. No. 3452 (Ont. C.J.) — considered R. v. Flintoff (1998), 1998 CarswellOnt 2373, 111 O.A.C. 305, 16 C.R. (5th) 248, 36 M.V.R. (3d) 1, 126 C.C.C. (3d) 321, [1998] O.J. No. 2337 (Ont. C.A.) — considered R. v. Golden (2001), 2001 CarswellOnt 4301, 2001 SCC 83, 2001 CarswellOnt 4253, 207 D.L.R. (4th) 18, 279 N.R. 1, 47 C.R. (5th) 1, 159 C.C.C. (3d) 449, [2001] 3 S.C.R. 679, 153 O.A.C. 201, 89 C.R.R. (2d) 271, [2001] S.C.J. No. 81, REJB 2001-27031 (S.C.C.) — considered R. v. Grenke (2004), 2004 ONCJ 121, 2004 CarswellOnt 3028, 7 M.V.R. (5th) 89, [2004] O.J. No. 3062 (Ont. C.J.) — considered R. v. Mesh (April 16, 2009), Rutherford J., [2009] O.J. No. 6194 (Ont. C.J.) — referred to R. v. Nasogaluak (2010), [2010] 1 S.C.R. 206, 72 C.R. (6th) 1, [2010] 4 W.W.R. 1, 251 C.C.C. (3d) 293, 474 A.R. 88, 479 W.A.C. 88, 206 C.R.R. 100, 315 D.L.R. (4th) 193, 470 W.A.C. 395 (note), 469 A.R. 395 (note), 19 Alta. L.R. (5th) 1, 2010 SCC 6, 2010 CarswellAlta 268, 2010 CarswellAlta 269, 398 N.R. 107, 90 M.V.R. (5th) 1, [2010] S.C.J. No. 6 (S.C.C.) — followed R. v. Padda (2003), 6 Admin. L.R. (4th) 55, 46 M.V.R. (4th) 184, 2003 CarswellOnt 9210, [2003] O.J. No. 5503 (Ont. C.J.) — followed R. v. Samuels (2008), 2008 ONCJ 85, 67 M.V.R. (5th) 132, 2008 CarswellOnt 1111, 168 C.R.R. (2d) 98, [2008] O.J. No. 786 (Ont. C.J.) — referred to R. v. W. (D.) (2009), 2009 ONCJ 13, 2009 CarswellOnt 376, 184 C.R.R. (2d) 188, [2009] O.J. No. 331 (Ont. C.J.) — considered R. v. Muthuthamby Fergus ODonnell J. 291

R. v. Zarinchang (2010), 261 O.A.C. 153, 2010 CarswellOnt 2253, 2010 ONCA 286, 254 C.C.C. (3d) 133, 99 O.R. (3d) 721, 73 C.R. (6th) 199, [2010] O.J. No. 1548 (Ont. C.A.) — followed Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 24(1) — considered s. 24(2) — referred to Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 719(3) — considered

APPLICATION by accused for judicial stay of proceedings occasioned by unlawful strip search.

Fergus ODonnell J.: Overview 1 Mr. Muthuthamby is charged with impaired driving. At the outset of his trial, he admitted the facts necessary to prove that charge beyond a reasonable doubt and pursued an application to have the charge stayed on the basis of an allegedly unlawful strip search at the police station after his breath test.

The Evidence 2 The admitted facts show that just before 3 p.m. on 18 October, 2008, Mr. Muthuthamby was seen by several witnesses in the driver’s seat of his car, which was stopped in the middle lane of westbound Steeles Avenue and Old Weston Road in Toronto. Mr. Muthuthamby was slumped over the steering wheel and when a passer-by shook him there was no response. The witness then tried to lift Mr. Muthuthamby’s head, likewise eliciting no response, whereupon he started to remove Mr. Muthuthamby from the car. Mr. Muthuthamby then woke up and was unsteady on his feet and had to be assisted by the witness. The defence admitted that the charge of impaired driving was made out and I then heard from three police officers who were involved in Mr. Muthuthamby’s arrest and search. 3 Sergeant Richard Rowsome responded to the impaired driving call and, along with Constable Canning took Mr. Muthuthamby to 32 Division for his breath test. Mr. Muthuthamby was subjected to a pat-down or Level 1 search at the time of his arrest. That test uncovered nothing of concern, neither potential weapons nor any other type of contraband. At the time of arrival at the station, he was subjected to a Level 2 test, which is somewhat more intrusive than a Level 1 search insofar as it involves actually removing the contents of the prisoner’s pockets and cataloguing them. This second search also resulted in no 292 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

weapons or other contraband. After Mr. Muthuthamby had done his breath tests, a Level 3 strip search was authorized by Sergeant Farrugia, the acting officer-in- charge of the station. Sergeant Rowsome said that due to Mr. Muthuthamby’s level of intoxication Sergeant Farrugia deemed Mr. Muthuthamby unfit for release and was also concerned about his ability to understand the terms of his release. Sergeant Rowsome agreed with this decision. 4 Sergeant Rowsome said he had no conversation with Sergeant Farrugia about the decision to conduct a strip search. Constable Canning recalled no such conversation either. Sergeant Rowsome was simply told that Mr. Muthuthamby was to be searched because he would be held in custody in close proximity with other prisoners and police personnel and that Sergeant Farrugia wanted a Level 3 search done. He was not being held for a bail hearing, but rather until he had sobered up sufficiently. Constable Canning estimated the time required for that to be between two and four hours, perhaps a bit longer. 5 Sergeant Rowsome said that not only was Mr. Muthuthamby never aggressive or violent, to the contrary he was cooperative throughout. Sergeant Row- some’s database searches of Mr. Muthuthamby showed no outstanding charges and no criminal record. When he drove Mr. Muthuthamby to the police division, Sergeant Rowsome had no concerns for his (Sergeant Rowsome’s) safety. Con- stable Canning had less interaction with Mr. Muthuthamby, but likewise had no safety concerns. He described Mr. Muthuthamby as not only not being aggressive, but rather being apologetic. Based on the results of the Level 1 and Level 2 searches and on Mr. Muthuthamby’s background, Constable Canning said there was no basis to suspect Mr. Muthuthamby had illicit drugs or contraband on his person. 6 Mr. Muthuthamby was permitted to call his wife. This was after the Level 3 search. Sergeant Rowsome did not recall telling Mr. Muthuthamby’s wife to come to the station right away, just that she could pick him up when he was released. Releasing Mr. Muthuthamby into his wife’s custody would have resolved the concern about his well-being, but not the concern about his ability to understand the terms of his release. 7 The strip search itself was performed by Sergeant Rowsome and Constable Canning. The door and door panel leading into that room were closed during the search. Mr. Muthuthamby was searched item by item, removing one item of clothing, having it and the relevant area of his body examined and being in- structed to put that piece of clothing back on. When he removed his underwear, he was required to lift his genitals and spread his buttocks for a visual examination. The search ended with a visual examination of Mr. Muthuthamby’s mouth. At no time in the examination did the police touch Mr. Muthuthamby and he was never fully naked. The entire process took around six minutes. 8 Sergeant Farrugia testified that Mr. Muthuthamby was presented to her after his breath tests and Sergeant Rowsome and Constable Canning were recom- R. v. Muthuthamby Fergus ODonnell J. 293

mending his release on a promise to appear. However, because Mr. Muthuthamby had breath readings of 220 and 240 milligrams of alcohol in 100 millilitres of blood, Sergeant Farrugia was concerned that he could not understand what he was promising to do by signing his release documents. He was simply too drunk, based on her observations and the readings. He would ultimately be releasable without a show-cause hearing, but not right away. 9 Sergeant Farrugia had seen the objects removed from Mr. Muthuthamby during the Level 2 search and there were no drugs or weapons removed from him. He was never aggressive or violent, but rather was cooperative. She was unsure if she had any conversation with Sergeant Rowsome or Constable Can- ning about the circumstances of Mr. Muthuthamby’s arrest, only that she may have. There was nothing about such consultation in her notes. Contrary to Con- stable Canning and Sergeant Rowsome, Sergeant Farrugia thought it was probable that she would have discussed Mr. Muthuthamby’s background because they were recommending release to her. She would have wanted to know if a prisoner was in a reverse-onus situation before deciding on release. While I have concerns about Sergeant Farrugia’s application of the search protocol, about which I will say more later, I am inclined to the view that she is correct in believing she discussed Mr. Muthuthamby’s background with the arresting officers; her explanation on this point was logical and had the ring of truth to it. 10 Sergeant Farrugia testified that she was familiar with the Toronto Police Ser- vice policy on strip searches and that it required a case-by-case analysis. How- ever, she also said that the Toronto Police Service policy requires that every person being placed in a cell must be completely searched. 11 Sergeant Farrugia described the cell area at 32 Division as consisting of eight individual cells, separated by concrete walls, plus a bull-pen designed to hold multiple prisoners. The prisoners in the individual cells cannot see each other but could conceivably reach out to the prisoner in the adjacent cell because the cell-fronts are open bars. That evening the cells already contained two prisoners before Mr. Muthuthamby. Sergeant Farrugia believed they would have been in cells #1 and #2, but later suggested that Mr. Muthuthamby, who was put into cell #8, would have had a neighbour in cell #7. This discrepancy was never resolved in the evidence. In terms of the positioning of the cells, leaving out the bull pen, they are as follows, with bold lines representing concrete walls and lighter lines representing the barred faces of the cells: 294 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

C O R R I D O R B8765 U L L1234 P E N C O R R I D O R 12 Sergeant Farrugia testified that even with no other prisoners in the cells, she is concerned about the possible transfer of contraband among prisoners. To her, at least, “everybody who goes into those cells has been completely searched which means that they’ve been, in layman’s terms, strip searched”. 13 The Toronto Police Service policy with respect to strip searches was put before me. The policy refers to the Supreme Court of Canada decision in R. v. Golden, 2001 SCC 83 (S.C.C.). It categorizes searches into four levels, only three of which are relevant for our purposes. The policy includes the following description of the duties of an officer-in-charge: 9. When in charge of a unit where persons are detained shall ensure that • The decision to search a person has been evaluated based on the risk factors found in Appendix B and • Where reasonable grounds to conduct a Level 3 search exist, ensure a Level 3 search is conducted • Where reasonable grounds do not exist, ensure a Level 2 search is conducted.1 When assessing the level of search, the OIC/police officer shall on a case-by-case basis (emphasis in original), evaluate the circumstances relevant to the individual to be searched and determine the appropriate level of search required to address any risk factors, keeping in mind that the safety of officers, the individual and to others is paramount. The OIC is responsible for ensuring that the level of search appropriately addresses the risk factors associated to the current arrest including those related to the erson, and logistical issues such as the type of transportation and contact with others that this individual is expected to encounter.2

1R.O. 2009.02.05-0123, page 7 of 8. 2R.O. 2007-07-09-0928, page 1 of 4. R. v. Muthuthamby Fergus ODonnell J. 295

14 In relation to Level 3 searches in particular, the policy again refers to the Supreme Court of Canada decision in Golden and sets out the following risk factors: a. The details of the current arrest b. The history of the person c. Any items already located on the person during a Level 1 or 2 search d. The demeanour or mental state of the individual e. The risks to the individual, the police or others, associated with not performing a Level 3 search f. The potential that the person will come into contact with other detainees, creating an opportunity for the person to hand off contraband, weapons, etc....to another prisoner.3

Was The Strip Search Unreasonable? 15 Based on the evidence I have heard, two conclusions seem clear to me. First, given the level of Mr. Muthuthamby’s blood alcohol readings, no fault can be found in the decision to hold him at the station until he was sober enough to be released and to understand the terms of his release. The blood alcohol concentration readings provided to Sergeant Farrugia were around three times the level established by Parliament for criminal culpability. Second, assuming the strip search was valid, no issue can be raised about the manner in which it was performed and, indeed, Mr. Mass made it clear that he had no quibble on that front. 16 The design of the 32 Division cells is such that it would be possible to house four strip searched prisoners in the first row of individual cells without any real- istic possibility that a prisoner who had not been strip searched and who was in the row of cells behind the first row could pass contraband to the other prisoners. For example, if Mr. Muthuthamby were housed in cell #8 and the first two prisoners were in cells #1 and #2, it would require supernatural powers to pass any contraband in his possession off to another prisoner. If prisoners were added to the second row, the risk of contraband being passed from a prisoner who had not been strip-searched to another prisoner would increase, subject to some dexterity on the prisoner’s part, reaching the point of easy feasibility of transfer between cells #8 and #7. This, of course, presupposes that the prisoner who has not been strip searched has managed to conceal contraband on his person, regardless of any risk analysis suggesting that he is at low risk, as Mr. Muthuthamby clearly was. 17 The twin starting points for analysis in this case are the Supreme Court of Canada’s decision in Golden in 2001 and the Toronto Police Service policy that builds upon that decision. In Golden the Supreme Court of Canada clearly rec-

3Ibid, at page 2 of 4. 296 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

ognizes the inherent humiliation involved in a strip search, even one that is done in the most respectful manner possible, as this search was done. While recognizing the importance of officer and public safety in search decisions, the Supreme Court of Canada notes (at paragraph 94) that weapons will normally be detected by a Level 1 search (or in this case a Level 2). The Supreme Court of Canada goes on to note: Only if the frisk search reveals a possible weapon secreted on the detainee’s person or if the particular circumstances of the case raise the risk that a weapon is concealed on the detainee’s person will a strip search be justified. Whether searching for evidence or for weapons, the mere possibility that an individual may be concealing evidence or weapons upon his person is not sufficient to justify a strip search. The Supreme Court of Canada goes on to recognize that searches in a custodial setting will raise additional issues but then proceeds to recognize the further re- finement required in dealing with short-term detainees in impaired driving cases: While we recognize that police officers have legitimate concerns that short- term detainees may conceal weapons that they could use to harm themselves or police officers, these concerns must be addressed on a case-by-case basis and cannot justify routine strip searches of all arrestees.4 18 On the issue of whether or not there had in fact been a breach of section 8 in this case, Mr. Cohen for the Crown fought a valiant rear-guard action. He argued that in making the comment immediately above the Supreme Court of Canada relied upon the decision of Justice Duncan of this court in R. v. Coulter, [2000] O.J. No. 3452 (Ont. C.J.) without reference to the fact that in the hiatus between the Supreme Court of Canada hearing argument in Golden and giving judgment, Justice Langdon of the Superior Court heard argument on a Crown appeal of Justice Duncan’s ruling and released a judgment expressing “respectful but firm disagreement” with Justice Duncan’s distinction between prisoners being held for a show-cause hearing and releasable detainees held to sober up. The outcome in Golden on this issue might have been different if the Supreme Court of Can- ada had had the benefit of Justice Langdon’s analysis, argues Mr. Cohen. 19 Some years ago one of this province’s most accomplished appellate lawyers caused somewhat of a stir by telling a national newspaper that a coin-toss was as reliable a predictor of outcomes in the Supreme Court of Canada as any other analysis. Whether that was, or remains, an accurate perspective I leave to people more accomplished than I in the study of the Supreme Court of Canada’s body of work. What I do know is that I possess no crystal ball with which to divine how the Supreme Court of Canada might have acted if they had had the benefit of Justice Langdon’s ruling in Coulter; I only have the words that they did pub- lish, which maintain the distinction between two types of detainees and clearly

4At paragraph 97. R. v. Muthuthamby Fergus ODonnell J. 297

disapprove of routine strip searches of all detainees. That case by case analysis is reflected in the Toronto Police Service policy. It is the law of the land and there was no evidence adduced before me upon which I can conclude that the Supreme Court of Canada failed to account for particular circumstances that might dictate a different outcome on the facts of this case. 20 Applying the law set out in Golden to the facts of this case, it seems clear to me that there was no case-by-case analysis performed here. Had such an analysis been done, the accumulation of factors could not reasonably have led to the conclusion that a strip search of Mr. Muthuthamby was called for. Of the six criteria set out in the Toronto Police Service policy, none of the first five applies. If, in the case of short-term detainees specifically, the sixth criterion (potential contact with other prisoners, etc.) automatically countermands the conclusion reached through application of the first five criteria, what we are left with is an automatic searching of all short-term detainees, which the Supreme Court of Canada specifically proscribed in Golden. 21 The law does not say that a short-term detainee can never be strip-searched, but it requires that there be valid and articulable reasons for doing so.5 Those are missing in this case. At the time Mr. Muthuthamby was put in the cells he was one of three prisoners. Based on his profile and on the results of the Level 1 and Level 2 searches, he was already at extremely low risk for possessing contraband of any type. That very low risk could have been further reduced by placing him in cell #8 and using cells 1-4 for the first four prisoners that night, assuming that that many prisoners accumulated before Mr. Muthuthamby’s eventual so- bering-up. Even if more prisoners were admitted, the risk from Mr. Muthuthamby strikes me as still being low. I suspect it was too low to justify a strip search even if he had an immediate neighbour. The bottom line is that, including the bullpen, the station could accommodate nine prisoners without having more than one prisoner in a cell and eight prisoners without Mr. Muthuthamby having direct access to any other prisoner. 22 It is impossible for me to determine whether Sergeant Farrugia’s view that everyone going into cells is to be searched is a personal view held by her alone or is an organizational imperative imposed from a higher rank. From the reported cases, it is certainly not unique to Sergeant Farrugia, but I do not have a basis upon which I can reasonably conclude that the practice is widespread or even that it is a frequent or dominant practice at 32 Division. This is so in light of the size of the Toronto Police Service.6 What is clear is that, regardless of

5See MacDonell, J. in R. v. Grenke, [2004] O.J. No. 3062 (Ont. C.J.) at paragraphs 16-17 in relation to the possibility of there being circumstances in which the strip-searching of short-term detainees might be justified. 6It might be tempting to say that there has been a given number of strip-search decisions since Golden and that that necessarily demonstrates a systemic problem ten years after 298 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

who is calling the shots, the way in which Mr. Muthuthamby was handled is contrary to both the law relating to strip searches as outlined by the Supreme Court of Canada in Golden and to the explicit policy of the Toronto Police Ser- vice in response to that decision.

What Is The Appropriate Remedy? 23 Mr. Mass asks that I stay the proceedings. He says that no other remedy is available or sufficient and that Mr. Muthuthamby cannot be left without a remedy for a Charter violation. Pursuit of a civil action, he says, is unrealistic given the costs involved, especially when one considers the relatively low dollar value of any potential damages. 24 I pause here to note that there remains room for debate about the desirability of joining what is effectively a tort claim with a criminal trial, with the argument that success on the former should derail the latter. This is a point raised by Duncan, J. in R. v. W. (D.), [2009] O.J. No. 331 (Ont. C.J.), a case in which a robber’s leg was broken when his bicycle was struck by a police cruiser. It is a valid concern and requires the court to be attentive to the extent to which it risks allowing a criminal trial to be hijacked by what may arguably be a collateral matter, perhaps even one that could take much longer than the criminal trial itself. Nonetheless, I propose to deal with the issue in this case for two reasons. First, the point was not argued before me. Second, the admirable economy with which counsel presented their cases meant that this matter was dealt with more expeditiously than many impaired driving cases that do not raise important Charter issues. 25 There is no doubt that a stay has sometimes been granted for violations of this nature. At times, the judges granting a stay do so “with regret”. Among the cases in which a stay has been granted for a strip-search violation are R. v. Sam- uels, [2008] O.J. No. 786 (Ont. C.J.) (Nakatsuru, J.), R. v. Mesh, [2009] O.J. No. 6194 (Ont. C.J.) (Rutherford, J.) and R. v. Gaeshingtsong (unreported decision of Paris, J. of the Ontario Court of Justice dated 23 June, 2009). (I note that in both Samuels and Mesh, the trial judges felt that the minimum sentence for impaired driving offences constrained them from giving a meaningful remedy through a sentence reduction.) I do not find the decision in R. v. Agostinelli, [2002] O.J. No. 5008 (Ont. C.J.) (Sheppard, J) helpful insofar as the trial judge found that the manner of search in that case demonstrated “a deliberate act which can only be designed to humiliate, demean and intimidate an accused person”.

Golden. However, that is nothing more than an exercise in speculation about the extent of the problem insofar as the Toronto Police Service has approximately 5,000 uniformed personnel and polices a population of close to three million residents. R. v. Muthuthamby Fergus ODonnell J. 299

26 A stay was rejected as a remedy for an unconstitutional strip search of a young person in R. v. C. (N.), [2004] O.J. No. 2723 (Ont. C.J.). In R. v. Grenke, [2004] O.J. No. 3062 (Ont. C.J.), MacDonell, J., then of this court, declined to stay drink-driving charges because of an unlawful strip-search, finding that the search had no connection with the collection of evidence against Grenke. The remedy he granted was a reduction of sentence from 30 days to 14 days. 27 R. v. Flintoff, [1998] O.J. No. 2337 (Ont. C.A.), is a decision of the Court of Appeal for Ontario that pre-dates the Supreme Court of Canada decision in Golden but largely reflects the same constitutional principles. In that case, Flint- off was strip-searched even though there was never any chance of him being put in the cells even as a short-term detainee. The manner in which the search was conducted itself raised concerns that are not present in this case. The breath-test results were obtained after the unlawful strip search. In those circumstances, the Court of Appeal for Ontario held that, given this time sequence, the breath results were unlawfully obtained and excluded those results under s. 24(2), thus dealing a body-blow to the Crown’s “over 80” charge. However, the Court of Appeal for Ontario refused to stay the impaired driving charge arising out of the same arrest, noting that the evidence in relation to that charge was entirely sev- erable from the evidence relating to the “over 80” charge obtained at the station. The impaired driving charge in this case has that much in common with Flint- off — it was provable from external evidence, mostly or entirely from civilian witnesses. 28 Remedies are available under sections 24(1) and 24(2) of the Charter. This case engages s. 24(1), which empowers the court to award “such remedy as the court considers appropriate and just in the circumstances”. An “appropriate and just” remedy was defined by the Supreme Court of Canada in Doucet-Boudreau v. Nova Scotia (Department of Education), 2003 SCC 62 (S.C.C.) as engaging four criteria, namely: a. It meaningfully vindicates the claimant’s rights and freedoms; b. It respects the division of powers, although this does not mean the courts can never trench on areas that might presumptively be seen as within the purview of the legislature or executive; c. The remedy invokes powers to which the judicial function is suited; d. The remedy vindicates the claimant’s right but is also fair to the other party. 29 With respect to the granting of a stay as a s. 24(1) remedy in particular, the Court of Appeal for Ontario recently distilled the relevant legal principles from 300 MOTOR VEHICLE REPORTS 4 M.V.R. (6th) the Supreme Court of Canada in R. v. Zarinchang, 2010 ONCA 286 (Ont. C.A.) as follows: [57] . . . (1) There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual’s trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process. (2) In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied: (i) the prejudice caused by the abuse in question will be manifested, perpetu- ated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and (ii) no other remedy is reasonably capable of removing that prejudice. (3) In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider — the balancing of the interests in granting a stay against society’s interest in having a trial on the merits. [58] Where the residual category is engaged, a court will generally find it necessary to perform the balancing exercise referred to in the third criterion. When a stay is sought for a case on the basis of the residual category, there will not be a concern about continuing prejudice to the applicant by proceeding with the prosecution. Rather, the concern is for the integrity of the justice system. [59] When the problem giving rise to the stay application is systemic in nature, the reason a stay is ordered is to address the prejudice to the justice system from allowing the prosecution to proceed at the same time as the systemic problem, to which the accused was subjected, continues. In effect, a stay of the charge against an accused in the residual category of cases is the price the system pays to protect its integrity. [60] However, the “residual category” is not an opened-ended means for courts to address ongoing systemic problems. In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the ad- R. v. Muthuthamby Fergus ODonnell J. 301

vantage of staying the charges against this accused outweigh the interest in having the case decided on the merits? In answering that question, a court will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion. It seems to us that a court will be required to look at the particulars of the case, the circumstances of the accused, the nature of the charges he or she faces, the interest of the victim and the broader interest of the community in having the particular charges disposed of on the merits. [61] Thus, in our view, a strong case can be made that courts should engage in the balancing exercise set out in the third criterion in most cases coming within the residual category. 30 In R. v. Nasogaluak, 2010 SCC 6 (S.C.C.), the Supreme Court of Canada recently resolved the issue of whether or not Charter breaches could be taken into account by a sentencing court. The Supreme Court of Canada found that where the circumstances of a breach relate to the offender or the offence, those circumstances become relevant circumstances within the Criminal Code’s sentencing regime, so much so that resort to the Charter’s s. 24(1) will generally not be required to fashion the appropriate remedy. However, adjusting a sentence to reflect a Charter breach must be done while respecting statutory minimums and other statutory sentencing restrictions, although the Supreme Court of Canada remained open to “the possibility that, in some exceptional cases, sentence reduction outside statutory limits, under s. 24(1) of the Charter, may be the sole effective remedy for some particularly egregious form of misconduct by state agents in relation to the offence and to the offender.”7 31 In Nasogaluak, the police had used significant excessive force resulting in two broken ribs and a punctured lung, had failed to comply with supervisory requirements such as the completion of use of force reports and had not followed up on Mr. Nasogaluak’s complaints about feeling unwell. The trial judge noted that the normal range of sentence for flight from police was between six and eighteen months in custody and that there was a mandatory minimum for the impaired driving offence. In light of the Charter violation, the trial judge granted Mr. Nasogaluak conditional discharges on each count, by way of a Charter remedy. The Court of Appeal for Alberta upheld the flight from police sentence, but imposed the statutory minimum sentence on the impaired driving offence. The Supreme Court of Canada upheld the Court of Appeal’s decision, holding that it “addressed the circumstances of the accused, while remaining within the statutory parameters of the Criminal Code.” 32 There is no question that there was a Charter violation here. There is no doubt that it was serious. The question is whether it was serious enough to meet

7At paragraph 64. 302 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

the various pronouncements on the availability of s. 24(1) remedies in general and stays in particular. 33 The stay is the cudgel of judicial intervention. It is the blunt force trauma of constitutional remedies. It lacks subtlety. It risks being devoid of balance. It reflects no middle ground. It is the jackpot of judicial remedies. None of this is to say that the stay is never the appropriate remedy; in constitutional remedies as in life, there are times when bluntness is called for and times in which judicial restraint would do a disservice to Charter values. However, the law is clear that a stay of proceedings is a remedy for the clearest of cases and while that direc- tive language from the Court of Appeal for Ontario and Supreme Court of Can- ada appears stark enough, there is room for debate as to whether or not the stay has been more liberally granted as a remedy at times than the “clearest of cases” test might suggest. 34 With all due respect to those who have reached the contrary conclusion in cases similar to this, I see insurmountable challenges with the granting of a stay as a remedy for most unconstitutional strip searches in a drink-driving case. Ap- plying the criteria in Doucet-Boudreau, I am of the view that a stay in most such scenarios would fail the fourth criterion insofar as the absoluteness of the remedy is not fair to the “other party”. The other party can be seen in the monolithic sense as “the state”, which perhaps makes granting a stay seem more palatable, or the other party can be seen in a less impersonal sense as “society”, that enor- mous accumulation of individuals whose collective interests the laws against drink-driving are intended to protect. The granting of a stay in cases such as this certainly serves to vindicate the defendant’s interest, but it does so at an enor- mous cost — the denial to society of every court-imposed protection that Parlia- ment has built to defend against impaired drivers.8 Is the police officer’s blun- der, even one ten years after Golden, such that society should lose the benefit of every consequence imposed upon an impaired driver? Is the undoubtedly humiliating experience of a strip search such that the defendant should benefit to the extent of having no consequences visited upon him for an offence that is so obviously wrong, that has been the object of such routine and decades-long public admonition and that is the foremost criminal cause of death in Canada? The answer to each of these questions must surely be “no”. Yet those are the consequences of granting a stay for the breach. 35 When one moves from the general principles for s. 24(1) remedies in Doucet-Boudreau to the more specific test for a stay of proceedings as most recently synopsised by the Court of Appeal for Ontario in Zarinchang, once again the imposition of a stay for this violation in relation to these offences fails

8The only protection that is not over-ridden by a stay is the brief protection inherent in the automatic driver’s licence suspension that is engaged at the time of arrest under provincial legislation rather than the Criminal Code. R. v. Muthuthamby Fergus ODonnell J. 303

to pass constitutional muster. First, when assessing the second criterion applicable to the residual class of cases, as will be seen below, another remedy is reasonably available. Second, the Court of Appeal for Ontario and the Supreme Court of Canada have both recognized the need for a balancing of interests in residual category cases. Indeed, in Zarinchang the Court of Appeal for Ontario specifically presumes that balancing will be called for in such cases. The complete imbalance inherent in the remedy of the stay when measured against the compelling societal interest in the deterrence and punishment of impaired drivers is anathema to the very notion of balancing. The stay is an extreme measure. It is the most extreme measure available. It is entirely one-sided. Balancing might permit the imposition of a stay against a strip-searched defendant on a shoplifting charge. The weight of the public interest in drink-driving cases, however, rejects the routine imposition of stays. The societal interest is simply too great. By the imposition of a stay, society loses not only the element of deterrence inherent in the mandatory minimum penalties but also the forward-looking protection that is inherent in driving prohibitions and ignition interlock program- mes.9 I am of the view that this is a valid answer to applications for stays in relation to most alleged impaired drivers and most strip-search scenarios. There is a real danger that in the eyes of a reasonably informed member of the public the routine granting of stays in cases such as this will seriously undermine public confidence in the Charter and in the administration of justice. In this case, Mr. Muthuthamby was so impaired that he passed out at the wheel in the middle of a major intersection and could only be roused with some difficulty. As with most impaired drivers, the difference between the outcome of this case and a fatality comes down to nothing more than blind luck.10 36 If a stay of proceedings is not the appropriate remedy in cases such as this, what other remedy is available? The Gordian knot in drink-driving cases is the existence of mandatory minimum sentences. There are at least two remedies that balance the public interest with Mr. Muthuthamby’s interests. These options were outlined by Justice Duncan in R. v. Padda, [2003] O.J. No. 5503 (Ont. C.J.).

9This combination of punishment and mandatory future protection by a driving ban is a unique feature of impaired driving and “over 80” cases. 10Applying the open-ended list of criteria referred to by the Court of Appeal for Ontario in Zarinchang, the only factors that fall in Mr. Muthuthamby’s favour are his absence of any previous criminal record and the inherently humiliating nature of a strip-search. The particulars of the case, the nature of the charges, the manner in which the search was done, the absence of any evidence of individual vulnerability beyond the inherent power imbalance and the public interest in a resolution of these charges on the merits all tip in the opposite direction. 304 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

37 The first option is to grant Mr. Muthuthamby a conditional sentence of one day on his impaired driving charge. The mandatory minimum fine regime does not preclude this as an option. Neither does this option run afoul of any of the four criteria for the imposition of a conditional sentence, particularly when one considers the admonition by the Supreme Court of Canada in Nasogaluak that sentencing courts should apply the principles of sentencing to vindicate Charter interests. I am of the view that granting a one-day conditional sentence on the statutory terms would be a balanced remedy.11 This recognizes the serious breach of Mr. Muthuthamby’s rights while importing an element of balance by leaving in place the second half of the impaired driving scheme, namely the forward-looking driving prohibition, which is an important tool in protecting the public from impaired drivers. Unfortunately, the granting of a conditional sentence might seem unattractive to a defendant. While a conditional sentence would free the defendant from paying a fine, it would leave him with a sentence on his record that reflects a sentence of imprisonment, albeit one served in the community. A defendant might rightly wish to avoid that stigma, whether for fear of prejudice if he were ever convicted of another offence in the future, for fear of immigration consequences in this country or elsewhere and so on. On the other hand, a defendant might not be bothered by any of these collateral considerations. That is not a decision I can make for Mr. Muthuthamby. 38 The second option identified by Justice Duncan in Padda was the granting of a fine lower than the mandatory minimum based on s. 719(3) of the Criminal Code, which allows a sentencing court to take into account any time the defendant has spent in custody as a result of the offence, in these cases, the time spent in the station to sober up. While I am not sure that this particular method fits comfortably, I am of the view that it is nonetheless open to me to impose a fine that is less than the mandatory minimum in relation to Charter breaches of this nature in drink-driving cases, based on Nasogaluak rather than Padda. 39 As I have noted above, the Supreme Court of Canada decision in Naso- galuak generally disapproves of sentencing courts using s. 24(1) of the Charter to circumvent mandatory minimum sentences. Judges may validly consider relevant Charter violations in establishing the appropriate sentence but must respect statutory minimums and other sentencing rules in the Criminal Code. The Su- preme Court of Canada, however, did recognize that there might be “exceptional

11In this case, the Crown suggested that an appropriate penalty would be in the range of $1,500. I consider that to be a fair position in light of all of the circumstances of the case including Mr. Muthuthamby’s lack of a previous record and what was obviously a dis- turbing level of impairment. When the victim surcharge is applied, that $1,500 fine becomes $1,725. The elimination of that component of the penalty strikes me as a fair “set- off” for the violation of Mr. Muthuthamby’s unlawful strip-search. R. v. Muthuthamby Fergus ODonnell J. 305

cases” in which sentencing reduction outside statutory limits might be permissible if, for example, it were the sole effective remedy. 40 I do not read “exceptional” in this passage as necessarily having a numerical flavour to it. The fact that there may be several, perhaps many, cases in which police officers perform unlawful strip searches does not deprive those cases of their exceptional character. Those cases are “exceptional” cases because of the irreconcilable dilemma they would otherwise present to trial judges. This case serves as an example. Without the option of sentencing below the mandatory minimum, the Charter remedies I could grant are either to reduce Mr. Muthuthamby’s fine to the $1,000 minimum or to stay the charges. The former, a reduction of perhaps $500 is manifestly inadequate as a remedy; the latter is a windfall to Mr. Muthuthamby which rather cavalierly jettisons the public interest. It is only by having the option of sentencing below the mandatory minimum in this case that I can fairly balance the competing interests by compensating Mr. Muthuthamby for the violation while keeping in place the forward-looking driving restraints that accompany conviction. Since denying Mr. Muthuthamby a remedy for the breach and granting him a windfall for the breach are not appropriate remedies, the reduction of sentence below the statutory minimum, for offences such as this involving Charter violations of this nature, becomes, in the language of the Supreme Court of Canada in Nasogaluak, “the sole effective remedy”, unless, of course, Mr. Muthuthamby prefers a one-day conditional sentence.12 41 I am also of the view that a sentence reduction in this case satisfies all four of the criteria in Doucet-Boudreau. It vindicates Mr. Muthuthamby’s rights. While it infringes somewhat on the division of powers by undercutting a statutory minimum sentence, it does so in order to uphold the second component of Parliament’s legislative scheme, namely driving prohibitions for impaired drivers. The remedy, which involves the crafting of an appropriate sentence in view of a Charter breach is well-suited to the judicial role. Finally, it grants a reasonable remedy to the defendant while being fair to society, the “other party”.

Conclusion 42 Accordingly, I am of the view that Mr. Muthuthamby should have his choice of the two following remedies:

12Breaching the statutory minimum was not justified in Nasogaluak itself because the dramatic reduction in sentence on the flight from police charge, which could be accomplished entirely within the statutory framework in the Criminal Code, fully vindicated Mr. Nasogaluak’s interests. Obviously, in fact situations where a defendant faces other charges, the sentencing court should seek to fashion a remedy that avoids any conflict with minimum sentences or other sentence restrictions in the Code. 306 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

a. A one-day conditional sentence; considering that a defendant might consider this prejudicial, I do not consider it appropriate for me to impose this on Mr. Muthuthamby unilaterally. He should not be prejudiced while asserting a clear constitutional right; b. A one-dollar fine. This becomes the “sole effective remedy” if Mr. Muthuthamby does not want a conditional sentence on his record. In either case, there will also be the mandatory minimum twelve month driving prohibition under the Criminal Code. 43 There is another element to the total appropriate remedy here. Mr. Muthuthamby has pleaded not guilty and pursued a Charter remedy in response to a genuine Charter violation. By virtue of his plea of not guilty, he is prejudiced in terms of his eligibility for Ontario’s ignition interlock programme. It would be a perverse outcome for him to be penalized for seeking to vindicate his constitutional rights. In these circumstances I also consider it appropriate, as part of Mr. Muthuthamby’s remedy for the Charter breach, to permit him to change his plea to a plea of guilty and thereby qualify for the minimum ignition interlock eligibility period. It goes without saying that as part of the Charter remedy, I am prepared to set Mr. Muthuthamby’s Criminal Code driving prohibition at the minimum period of twelve months. If Mr. Muthuthamby requires time to consider his options in this regard, he is entitled to it. 44 On the material before me, including decisions in other cases, I do not consider it reasonably open to me to conclude that the unlawful strip-searching of short-term detainees is a routine practice by the Toronto Police Service. The cases make it clear, however, that the message of both the Supreme Court of Canada decision in Golden and of the Toronto Police Service’s own policy has yet to permeate all the nooks and crannies of the organization. Ten years later, this is simply not acceptable. One wonders if the Toronto Police Service ever becomes aware of the various decisions of this court in which its officers are found to have engaged in unlawful strip searches and, if so, at what level of command that awareness resides. In order to remove any doubt on this point, I require the Crown to provide a copy of these reasons directly to the office of the Chief of Police within ten days of the release of these reasons. The fact that Mr. Muthuthamby is not being subjected to the full range of sanctions for his impaired driving is a direct consequence of the shortcomings of the Toronto Police Service and nothing more. Application granted in part. R. v. Herridges 307

[Indexed as: R. v. Herridges] Her Majesty the Queen and Tyler Anthony Herridges Saskatchewan Provincial Court J.A. Plemel Prov. J. Judgment: October 12, 2010 Docket: None given, 2010 SKPC 135 Sandeep S. Bains for Crown Ronald P. Pich´e for Accused Criminal law –––– Offences — Driving/care and control with excessive alcohol — El- ements — Care and control — Presumption of care and control –––– Officers were on patrol when they found accused’s vehicle stuck in snowbank — Accused exited car and started to talk to officer B — Accused and officer B got into police car to talk as it was very cold — Officer B asked accused where he was coming from and accused said he had been in bar and had drinks — Officer J examined car and then he noticed accused smelled of alcohol and made breath demand — Accused failed roadside screening demand — Accused refused counsel — Accused failed breathalyzer — Accused was charged with having care and control of vehicle while impaired and having care and control of vehicle with excessive blood alcohol level — Accused acquitted of care and control while impaired and convicted of care and control with excessive blood alcohol level — Accused was deemed to have had care or control of vehicle by s. 258(1)(a) of Criminal Code as he had been in driver’s seat — Accused was in driver’s seat long enough to turn off engine and that was sufficient to meet criminal standard — Accused could not show he was not in seat for purpose of setting vehicle in motion — Accused’s vehicle was stuck but there was risk of danger as it was running and could have been put in gear and moved. Criminal law –––– Offences — Driving/care and control with excessive alcohol — Presumption of alcoholic content at time of offence — Demand by police officer –––– Officers were on patrol when they found accused’s vehicle stuck in snowbank — Ac- cused exited car and started to talk to officer B — Accused and officer B got into police car to talk as it was very cold — Officer B asked accused where he was coming from and accused said he had been in bar and had drinks — Officer J examined car and then he noticed accused smelled of alcohol and made breath demand — Accused failed roadside screening demand — Accused refused counsel — Accused failed breathalyzer — Ac- cused was charged with having care and control of vehicle while impaired and having care and control of vehicle with excessive blood alcohol level — Accused acquitted of care and control while impaired and convicted of care and control with excessive blood alcohol level — Breath demand was made forthwith as required by s. 254(2)(b) of Crimi- nal Code — Officers were on scene for ten minutes before they made breath demand — Officer B did have grounds to make demand as soon as accused admitted he had several drinks but that did not mean demand was not made forthwith — Officer B handed accused over to officer J — Officer B was not required by law to make demand as soon as he had grounds — Officer was not stalling — Demand was made after short, routine in- 308 MOTOR VEHICLE REPORTS 4 M.V.R. (6th) vestigation during which further grounds were found to make breath demand — Accused was deemed to have had care or control of vehicle by s. 258(1)(a) of Code as he had been in driver’s seat — Accused was in driver’s seat long enough to turn off engine and that was sufficient to meet criminal standard. Criminal law –––– Offences — Impaired driving/care or control — Elements — Im- pairment –––– Officers were on patrol when they found accused’s vehicle stuck in snowbank — Accused exited car and started to talk to officer B — Accused and officer B got into police car to talk as it was very cold — Officer B asked accused where he was coming from and accused said he had been in bar and had drinks — Officer J examined car and then he noticed accused smelled of alcohol and made breath demand — Accused failed roadside screening demand — Accused refused counsel — Accused failed breathalyzer — Accused was charged with having care and control of vehicle while impaired and having care and control of vehicle with excessive blood alcohol level — Ac- cused acquitted of care and control while impaired and convicted of care and control with excessive blood alcohol level — Crown could not prove accused’s ability to drive was impaired — Officer was clear in his testimony that accused had minimal signs of impairment — There was no other evidence. Evidence –––– Confessions — Voluntariness — Capacity to make statement — Mis- cellaneous –––– Officers were on patrol when they found accused’s vehicle stuck in snowbank — Accused exited car and started to talk to officer B — Accused and officer B got into police car to talk as it was very cold — Officer B asked accused where he was coming from and accused said he had been in bar and had drinks — Officer J examined car and then he noticed accused smelled of alcohol and made breath demand — Accused failed roadside screening demand — Accused refused counsel — On way to station officer J asked accused questions — Accused failed breathalyzer — Accused was charged with having care and control of vehicle while impaired and having care and control of vehicle with excessive blood alcohol level — Accused alleged statements should be excluded — Trial judge held voir dire to determine voluntariness of statements made by accused — Trial judge ordered that statements were made voluntarily — Crown’s failure to ask officer J if he made threats or promises to accused to make statement was not determinative of matter — Statements did not even indicate if accused drove his vehicle into snowbank from bar or if he had any drinks — Conversation was about if accused had eaten, his health and any medications he was taking — There were no inducements or promises or threats and no real admissions. Criminal law –––– Charter of Rights and Freedoms — Arrest or detention [s. 10] — Right to counsel [s. 10(b)] — Right to be informed — General principles –––– Of- ficers were on patrol when they found accused’s vehicle stuck in snowbank — Accused exited car and started to talk to officer B — Accused and officer B got into police car to talk as it was very cold — Officer B asked accused where he was coming from and accused said he had been in bar and had drinks — Officer J examined car and then he noticed accused smelled of alcohol and made breath demand — Accused failed roadside screening demand — Accused refused counsel — Accused failed breathalyzer — Ac- cused was charged with having care and control of vehicle while impaired and having care and control of vehicle with excessive blood alcohol level — Accused acquitted of care and control while impaired and convicted of care and control with excessive blood alcohol level — There was no breach of accused’s rights under s. 10(b) of Canadian R. v. Herridges 309

Charter of Rights and Freedoms — When accused was asked if he wanted lawyer he said he did not need one — Accused had no apparent difficulty understanding or communicating with officers — There was no language barrier and no cognitive disabilities — Ac- cused understood his situation and his right to counsel — Accused chose to not exercise that right and his comment at time of arrest that he did not have to speak to lawyer was his way of indicating he did not wish to talk to lawyer — Accused also confirmed his decision to not exercise his right at station — Accused’s comment did not require officers to make further inquiry. Cases considered by J.A. Plemel Prov. J.: R. v. Appleby (1971), [1972] S.C.R. 303, 16 C.R.N.S. 35, [1971] 4 W.W.R. 601, 3 C.C.C. (2d) 354, 21 D.L.R. (3d) 325, 1971 CarswellBC 121, 1971 CarswellBC 280, [1972] S.C.J. No. 112 (S.C.C.) — referred to R. v. Armbruster (2010), [2010] 4 W.W.R. 575, 92 M.V.R. (5th) 12, 2010 CarswellSask 107, 2010 SKCA 25, 73 C.R. (6th) 343 (Sask. C.A.) — referred to R. v. Auld (1987), 38 C.C.C. (3d) 43, 1987 CarswellOnt 994 (Ont. Dist. Ct.) — referred to R. v. Boudreau (1949), 7 C.R. 427, [1949] S.C.R. 262, 94 C.C.C. 1, [1949] 3 D.L.R. 81, 1949 CarswellQue 3, [1949] S.C.J. No. 10 (S.C.C.) — followed R. v. Burbella (2002), 28 M.V.R. (4th) 126, 217 D.L.R. (4th) 604, 167 C.C.C. (3d) 495, 2002 CarswellMan 382, 2002 MBCA 106, 5 C.R. (6th) 174, [2003] 1 W.W.R. 613, 166 Man. R. (2d) 198, 278 W.A.C. 198, [2002] M.J. No. 355 (Man. C.A.) — referred to R. v. Dombrowski (1985), 44 C.R. (3d) 1, 18 C.C.C. (3d) 164, 37 Sask. R. 259, 14 C.R.R. 165, 1985 CarswellSask 44 (Sask. C.A.) — considered R. v. Evans (1991), 4 C.R. (4th) 144, [1991] 1 S.C.R. 869, 63 C.C.C. (3d) 289, 124 N.R. 278, 3 C.R.R. (2d) 315, 1991 CarswellBC 918, 1991 CarswellBC 417, [1991] S.C.J. No. 31, EYB 1991-67049 (S.C.C.) — considered R. v. Janzen (2006), 378 W.A.C. 296, 285 Sask. R. 296, 2006 SKCA 111, 2006 Carswell- Sask 631, 36 M.V.R. (5th) 31, [2006] S.J. No. 629 (Sask. C.A.) — referred to R. v. Notman (1986), 40 M.V.R. 72, 1986 CarswellOnt 14, [1986] O.J. No. 1863 (Ont. Dist. Ct.) — referred to R. v. Stellato (1993), 1993 CarswellOnt 74, 18 C.R. (4th) 127, 78 C.C.C. (3d) 380, 61 O.A.C. 217, 12 O.R. (3d) 90, 43 M.V.R. (2d) 120, [1993] O.J. No. 18 (Ont. C.A.) — referred to R. v. Vandale (1982), 18 M.V.R. 150, 1982 CarswellSask 21 (Sask. Q.B.) — considered R. v. Walsh (2002), 216 Sask. R. 297, 2002 SKQB 82, 2002 CarswellSask 161 (Sask. Q.B.) — referred to R. v. Walters (1975), 26 C.C.C. (2d) 56, 1975 CarswellNS 62, 11 N.S.R. (2d) 443 (N.S. C.A.) — referred to Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 10 — considered s. 10(a) — considered s. 10(b) — considered 310 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

Criminal Code, R.S.C. 1985, c. C-46 s. 253(1)(a) — pursuant to s. 253(1)(b) — pursuant to s. 254(1) “qualified technician” [en. R.S.C. 1985, c. 27 (1st Supp.), s. 36] — considered s. 254(2)(b) — considered s. 254(3) — referred to s. 255(1) — pursuant to s. 258(1)(a) — considered s. 258(1)(c)(iii) — considered

TRIAL of accused on charges of having care and control of vehicle while impaired and having care and control of vehicle with excessive blood alcohol level.

J.A. Plemel Prov. J.: Introduction 1 The accused is charged that on or about March 7, 2009, at Watson, Saskatch- ewan he: 1) Did while his ability to operate a motor vehicle was impaired by alcohol, have the care or control of a motor vehicle, contrary to section 255(1) and section 253(1)(a) of the Criminal Code. 2) Did having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in 100 millilitres of blood, have the care or control of a motor vehicle contrary to section 253(1)(b) of the Criminal Code. 2 The Crown called two witnesses, namely Cpl. Jones and Cst. Bauer, who are both members of the RCMP stationed in Humboldt, Saskatchewan. 3 A voir dire was held for the purpose of determining the voluntariness of certain oral statements made to Cpl. Jones as well as to determine whether or not section 10 of the Charter of Rights and Freedoms was complied with regarding rights to counsel. 4 It was agreed by counsel for the Crown and Defence that the evidence from the voir dire is to be admitted at trial. I take this to mean that this agreement applies to everything led in the voir dire except for those portions, if any, which I rule to be inadmissible. 5 Both counsel also stated they do not wish to call any further evidence. They presented argument both on the voir dire and the trial proper. This decision is therefore my decision both with respect to the voir dire and the trial. 6 No witnesses were called by the Defence on either the voir dire or the trial. 7 Unless stated otherwise, I accept the evidence of Cpl. Jones and Cst. Bauer when I refer in this decision to evidence given by them. R. v. Herridges J.A. Plemel Prov. J. 311

The Evidence 8 Cst. Bauer and Cpl. Jones were in their police vehicle patrolling in the town of Watson when they came upon the vehicle in question. It was stuck in a snowbank on 3rdAvenue. The driver’s front tire was further into the snow than the passenger tire, and the rear wheels were on the roadway. They could not see a curb due to snow but the front tires were roughly in the area of where the curb would have been. 9 The accused, Mr. Herridges, was the only person in the vehicle. Neither officer saw where he was seated in the vehicle. However, they observed him exit the driver’s door when they arrived. 10 At that point, the headlights and tail lights were on. Cpl. Jones thought the vehicle was running but it became clear when he was examined in-chief that he thought this only because the lights were on. He did not hear the vehicle engine running. Cst. Bauer however, also saw exhaust coming from the vehicle. I accept his evidence and conclude that the motor was running when the police arrived and that it was shut off by the accused before he exited the vehicle. It was possible for him to exit the passenger door but he did not do so. Neither officer stated who turned off the head and tail lights. 11 The police stopped their vehicle about 15 to 20 feet from the vehicle in question. Cst. Bauer approached the driver’s door of that vehicle and met the accused part way. Cpl. Jones went to the passenger side of the vehicle. He examined it and looked inside by opening the passenger door. He believes the keys were not in the car when he examined it. The vehicle had an automatic transmission. The gear shift was located on the steering column. 12 Cst. Bauer and the accused spoke outside for a while but took a seat in the police patrol vehicle because it was cold out. It was about 27 degrees below zero. The accused was not under arrest at the time they entered the police vehicle. Cst. Bauer smelled alcohol on the accused as he opened the door for the accused to enter the police vehicle. He did not, however, testify it was coming from the accused’s breath at that time. When they got into the police vehicle Cst. Bauer asked the accused where he was coming from. The accused stated he was coming from the Watson bar where he’d had a few drinks. The accused had not been cautioned before making this comment. 13 Cst. Bauer testified on the voir dire that moments after he and the accused entered the police vehicle, Cpl. Jones came back from examining the suspect vehicle. Cst. Bauer testified that he stepped out of the police vehicle and the two conversed briefly over the car door. During this time he told Cpl. Jones of the smell of alcohol and of the accused’s comment that he was coming from the bar where he’d had a few drinks. They both then entered the police vehicle. At that point, Cst. Bauer said he noticed that the smell of alcohol in their vehicle was very strong. Cpl. Jones then took over dealing with the accused. 312 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

14 Similarly, Cpl. Jones testified that after examining the vehicle which was stuck, he went back to the police vehicle. He entered the police cruiser and talked to his partner, Cst. Bauer. There is a difference here in the testimony of Cpl. Jones and Cst. Bauer as Cpl. Jones thought the conversation took place inside the police vehicle, while Cst. Bauer thought it took place outside. I am satisfied the conversation took place either inside, or near the police vehicle while the accused was in the rear seat. 15 Cpl. Jones gave evidence that after the conversation with Cst. Bauer he then spoke with the accused, making some observations about him while he did so. He also asked the accused for his driver’s licence. The accused fumbled in his wallet for it but did produce it. Cpl. Jones smelled alcohol coming from the accused’s breath; he noted that his face was very, very red; he slurred a few words although not too badly. Cpl. Jones made an alcohol screening device (ASD) demand on the accused as he suspected the accused had alcohol in his body. The accused failed this test and as a result the officer proceeded to advise him that he was under arrest for impaired care or control of a motor vehicle. He then gave him a standard police caution that he need not say anything. He also read him his rights to counsel. 16 The police arrived in Watson that morning at about 1:20 a.m. The time they arrived at the scene was not recorded by them. However, the time of the ASD demand was recorded by Cpl. Jones as 1:41 a.m. He testified that this was approximately 10 to 11 minutes after their arrival at the scene. I accept Cpl. Jones’ evidence on this point. 17 Both Cst. Bauer and Cpl. Jones were qualified to use the ASD which they had with them on this occasion. 18 Cpl. Jones testified that the fail reading led him to believe that the accused’s blood/alcohol level was over the legal limit. He proceeded to make a further demand on him for breath samples pursuant to s. 254(3) of the Criminal Code. He testified that without the fail reading on the ASD he did not feel he had sufficient grounds to make the further demand for breath samples. 19 Besides making a breath demand on the accused, Cpl. Jones also read the accused the standard police caution that he need not say anything as well as his rights to counsel. 20 The accused was asked if he understood his rights to counsel and responded that he did. He was then asked if he wished to speak with counsel. He responded “No I don’t have to call a lawyer.” 21 The police then took the accused to the Humboldt RCMP Detachment where he provided samples of his breath. 22 When they arrived at the detachment, and before providing breath samples, Cpl. Jones testified that he gave Mr. Herridges another opportunity to contact R. v. Herridges J.A. Plemel Prov. J. 313

counsel but that the accused again stated that he did not wish to consult counsel. I accept Cpl. Jones’ testimony on this point. 23 In this case there was no Certificate of Analyses prepared, the reason being that there were three samples obtained into the approved instrument. Cpl. Jones was the technician conducting the tests on Mr. Herridges. He testified that he conducted a third test in this case because the first and second tests were not within 20 milligrams percent of each other and, according to his training, he was therefore required to conduct a third test. He testified that when a third test is conducted, it is RCMP practice not to prepare a Certificate of Analyses but rather to give viva voce evidence surrounding the taking of the samples as well as results obtained. 24 The first sample was taken at 2:31 a.m. and resulted in a reading of 210 milligrams of alcohol in 100 millilitres of blood. 25 The second sample was taken at 2:58 a.m. and resulted in a reading of 180 milligrams of alcohol in 100 millilitres of blood. 26 The third sample was taken at 3:25 a.m. and resulted in a reading of 180 milligrams of alcohol in 100 millilitres of blood.

Issues 1) Were statements made to Cpl. Jones proven to be voluntary? If they are, what weight should they be given? 2) Was there a breach of s.10 of the Canadian Charter of Rights and Freedoms? 3) Is there any admissible evidence to prove driving prior to the arrival of the police? 4) Was the accused in care or control of a motor vehicle? 5) Was the ASD demand made “forthwith” as required by s. 254(2)(b)? 6) Was Cpl. Jones a qualified technician? 7) Were the samples of the accused’s breath provided “directly” into an approved instrument as required by s. 258(1)(iii)? 8) Has the Crown proven that the accused’s ability to operate a vehicle was impaired by alcohol?

Were Statements Made to Cpl. Jones Proven to Be Voluntary? If They Are, What Weight Should They Be Given? 27 The caution given to the accused by Cpl. Jones that he need not say anything was read from a card and is as follows: You need not say anything. You have nothing to hope from any promise of favour; nothing to fear from any threat whether or not you say anything. Anything you do say may be used as evidence. Do you understand? 314 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

The accused responded “I do.” 28 Cpl. Jones felt he understood the caution. Right after the caution, he read him a demand for breath samples to which the accused responded “I totally understand that guys.” 29 On the way back to the detachment, Cst. Bauer drove the police vehicle. The accused was seated in the centre of the back seat. Cpl. Jones spoke to him through the opening in the protective device referred to as the silent patrolman which separated the front and back seat of the patrol vehicle. He asked Mr. Her- ridges questions and answers which he reduced to writing. 30 The accused argues that the statements should not be admitted into evidence because the prosecutor omitted to ask Cpl. Jones whether or not he had made any promises or threats to him or held out any inducements to him to give an oral statement. 31 Speaking for the Saskatchewan Court of Appeal in R. v. Dombrowski, 1985 CarswellSask 44 (Sask. C.A.), Tallis J.A. stated “The Crown does not satisfy the requisite onus by merely asking a few routine questions about threats or inducements” (para. 13). Similarly, I am of the view that the absence of those routine questions is not determinative of whether or not the statement is proven to be voluntary in the classic or traditional sense as required by leading cases such as R. v. Boudreau (1949), 94 C.C.C. 1 (S.C.C.). 32 After reviewing the evidence of Cst. Bauer and Cpl. Jones on the voir dire, I am satisfied that the statements the accused made to Cpl. Jones in the patrol vehicle were voluntarily given, free of any promises, threats or inducements of any sort by any person in authority. 33 The Crown argues that the statements indicate the accused drove his vehicle from the Watson bar to the location where he got it stuck in the snow. 34 I do not agree. I have replayed several times the recording of the Crown’s examination-in-chief on this point. Cpl. Jones spoke very quickly at some points but as best as I can discern the evidence is as follows: Q: What was the first question you asked him? Cpl. Jones: I’d asked him several questions. We did have conversation about him driving. I hadn’t had that conversation with him before. It - my partner had so I’d asked if he had informed that he had been driving home from the bar. That he had consumed a 6 up of alcohol or Pilsner Beer. 35 Further conversation followed about what he had eaten, whether he had dia- betes and whether he was on any medications. 36 I am not satisfied that the accused ever stated to Cpl. Jones that he had driven from the bar or that he’d had some drinks at the bar. R. v. Herridges J.A. Plemel Prov. J. 315

Was There a Breach of s. 10 of the Canadian Charter of Rights and Freedoms? 37 Section 10 (a) and (b) of the Charter read as follows: 10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefore; (b) to retain and instruct counsel without delay and to be informed of that right; 38 Cpl. Jones gave evidence which I accept, that he read Mr. Herridges his rights directly from a card. He read the following and received the responses shown here: I am arresting you for impaired care and control. You have the right to retain and instruct counsel without delay. You may call any lawyer if you wish. Legal Aid duty counsel is available to provide you with immediate legal advice free of charge and can explain the Legal Aid plan to you. I can provide you with a number you can call free of charge. Do you understand? To this the accused responded “I understand.” Cpl. Jones then asked him “Do you wish to call a lawyer now?” The accused responded “No, I don’t have to call a lawyer.” 39 The accused’s responses were written into the officer’s notebook at the time he dealt with the accused. 40 Later, when they arrived at the detachment, the accused was again asked by Cpl. Jones if he wished to talk to a lawyer. He indicated that he did not wish to talk to one. 41 Counsel for the accused argues that the accused’s reply to the officer that “no I don’t have to call a lawyer” is an odd answer and that it raises an issue about the informational component of his right to counsel as guaranteed by s. 10(b) of the Charter. 42 McLachlin J. of the Supreme Court of Canada discussed the informational component as follows: A person who does not understand his or her right cannot be expected to assert it. The purpose of s. 10(b) is to require the police to communicate the right to the detainee. In most cases one can infer from circumstances that the accused understands what he has been told. In such cases, the police are required to go no further (unless the detainee indicates a desire to retain counsel, in which case they must comply with the second and third duties set out above). But where, as here, there is a positive indication that the accused does not understand his right to counsel, the police cannot rely on their mechanical recitation of the right to the accused; they must take steps to facilitate that understanding. R. v. Evans, [1991] 1 S.C.R. 869; 63 C.C.C. (3d) 289. 43 The accused in the case before this Court had no apparent difficulty understanding and communicating with the police. He did speak with a slight slur 316 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

which Cpl. Jones viewed as a sign of alcohol consumption. There were no underlying language barriers or cognitive disabilities apparent that made it difficult for him to comprehend as we see with accused in some cases. Neither do I believe that his consumption of alcohol prevented him from understanding his rights to counsel. 44 I am satisfied that the accused understood why he was arrested and that he had a right to call a lawyer including Legal Aid. I find that, knowing this, he chose not to call a lawyer. I find that his comment at the scene that he did not have to speak with a lawyer was his way of indicating to the officer that he did not wish to speak with one. This was confirmed at the police station when he indicated that he did not wish to speak with a lawyer. 45 Having found that the accused’s statements to police were voluntary and having found no breach of his rights to counsel, all evidence from the voir dire is admitted as evidence at the trial.

Is There Any Admissible Evidence to Prove Driving Prior to the Arrival of the Police? 46 Although the statements from the voir dire are admissible, I find nothing in them amounting to an admission that he drove the vehicle on the night in question. There is therefore no evidence before me to find that he drove into the snowbank or that he drove at any relevant time on the night in question. 47 The comments that he made to Cst. Bauer about driving, which were related by Cst. Bauer to Cpl. Jones, are admitted solely for consideration as to whether or not Cpl. Jones had grounds to make an ASD demand. 48 Both Crown and Defence counsel agreed that they were being admitted for that purpose only. I find that Cpl. Jones had grounds to make the ASD demand on Mr. Herridges even without these comments.

Was the Accused in Care or Control of a Motor Vehicle? 49 The accused argues that if I find the accused drove the vehicle before it got stuck, then I may be able to conclude that he was still in actual care or control when the police came upon the scene. 50 However he continues his argument by stating if I find, as I have here, that there is no evidence of driving, then in the circumstances of this case, there is no evidence he was in actual care or control of the motor vehicle. 51 Each case must be decided on its own facts. In this case one question could be whether someone who is temporarily in the driver’s seat of a vehicle with an automatic transmission with the engine running and who turns off the ignition when the police arrive is in actual care or control. R. v. Herridges J.A. Plemel Prov. J. 317

52 However, rather than dealing with the issue of whether or not this is a case of actual care or control, I will deal instead with whether the Crown can rely on the presumption of care or control. 53 Relevant portions of s. 258(1)(a) of the Criminal Code state: ...where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle...the accused shall be deemed to have had the care or control of the vehicle...unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle...in motion... 54 The section does not say that the accused must be shown to occupy the seat for an extended period of time. 55 I find that Mr. Herridges is deemed to have had the care or control of the vehicle as defined in s. 258(1)(a). While it has not been proven how long he occupied the driver’s seat, I am satisfied beyond a reasonable doubt that he occupied it long enough to turn off the engine and leave through the driver’s door. 56 Once it has been proven by the Crown that an accused has occupied the seat or position as stated in s. 258(1)(a), then it is open to the accused to establish that he did not occupy that seat or position for the purpose of setting the vehicle in motion. He must establish this on a balance of probabilities. [R. v. Appleby, [1971] 4 W.W.R. 601, 3 C.C.C. (2d) 354 (S.C.C.).] 57 In some cases perhaps this will be established in the case led by the Crown. However, in this case there is absolutely no evidence before me to establish that the accused did not occupy the driver’s seat for the purpose of setting the vehicle in motion. Therefore, I conclude he is deemed to have had the care or control of the motor vehicle. 58 The accused raises one more issue in dealing with deemed care or control. He argues that in cases where the Crown is relying on the presumption of care or control, rather than proving actual control, the absence of a risk of danger will afford a defence to the charge. He cites the case of R. v. Burbella (2002), 28 M.V.R. (4th) 126 (Man. C.A.) in support of this proposition. He argues that in the present case, there was no danger since Mr. Herridges’ vehicle was stuck and could not be moved. 59 I am of the view that in the present case, there was a risk of danger. While the accused’s vehicle was stuck, the motor was running and the vehicle could have been put into gear resulting in the wheels spinning, thereby creating a danger to anyone who might be attempting to assist him in getting out of the snowbank. 60 I find that the accused was in deemed care or control of a motor vehicle. 318 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

Was the ASD Demand Made “Forthwith” as Required by s. 254(2)(b) of the Criminal Code? 61 The relevant portions of s. 254(2)(b) are as follows: 254 If a peace officer has reasonable grounds to suspect that a person has alcohol ... in their body and that the person has, within the preceding three hours, operated a motor vehicle... or had the care or control of a motor vehicle ...whether it was in motion or not, the peace officer may, by demand, require the person ... (italics mine) (b) To provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. 62 The accused argues that the ASD demand was not made forthwith because Cst. Bauer had the grounds to make the demand before Cpl. Jones did. He argues that Cst. Bauer had the grounds to make this demand at least when the accused admitted he was coming from the bar after having had a few drinks. He told this to Cst. Bauer shortly after they entered the police vehicle. He argues furthermore that Cst. Bauer not only could have made the demand but that he was required to do so since he was also a qualified ASD operator. In addition he asks the Court to conclude that since the police officers cannot be more precise on their times, it is unclear how long they were there before the ASD demand was made. 63 In considering all of the relevant evidence dealing with that issue, I reject those arguments. 64 I am satisfied that the police were on the scene about 10 or 11 minutes before the ASD demand was made. 65 I find that Cst. Bauer had initial grounds to make the ASD demand when the accused told him he’d had a few drinks at the Watson bar. However, that he did not do so immediately at that time does not mean the demand was not made “forthwith”. The surrounding circumstances must be looked at. 66 Cst. Bauer testified that moments after the accused told him he had driven from the bar, Cpl. Jones came to the police vehicle and that he passed this information on to Cpl. Jones. Cpl. Jones then took over dealing with the accused as I have already stated. 67 The fact that Cst. Bauer had sufficient grounds to make the demand and had legal authority to exercise his discretion to do so did not mean that he was required by law to make the demand. There is no suggestion that he was stalling for any improper motive. He and Cpl. Jones were working together. It was not improper nor is it surprising that he waited a very short time in the police vehicle with the accused until Cpl. Jones returned from examining the suspect vehicle before the next steps were taken. Cpl. Jones’ examination of the scene was not prolonged. It was not out of the ordinary that Cst. Bauer would tell Cpl. R. v. Herridges J.A. Plemel Prov. J. 319

Jones of the discussions he’d had with the accused and the observations he’d made of him with respect to the smell of alcohol. Neither was there anything unusual or improper about Cpl. Jones requesting the accused’s driver’s licence and observing him while he spoke with him before he made the ASD demand. 68 Cpl. Jones made the ASD demand after a relatively routine brief investigation in which he obtained further reasonable grounds to suspect that Mr. Her- ridges had care or control of the vehicle while he had alcohol in his system. He then demanded that the accused provide forthwith a sample of his breath into the ASD. The accused complied. I find that the samples were therefore taken “forthwith” as required by s. 254(2)(b) of the Criminal Code. [See R. v. Walsh, 2002 SKQB 82 (Sask. Q.B.) CanLII; 2002 SKQB 82 (Sask. Q.B.); R. v. Janzen, 2006 SKCA 111 (Sask. C.A.).]

Was Cpl. Jones a Qualified Technician? 69 The accused argues that there is insufficient evidence before me to conclude that Cpl. Jones was a qualified technician. 70 Cpl. Jones testified that he was a qualified technician. He stated he was qualified to use the Intoxilyzer 5000C, which was the breath analysis instrument he used in this case. He said he took his training between May 23 and June 1, 2006, and that he was gazetted sometime after that. He testified that he conducted tests before the tests on Mr. Herridges. He testified that he was the only technician on duty that evening in the Humboldt Detachment. 71 I am satisfied that Cpl. Jones was a qualified technician at the time in question as that term is defined in s. 254 of the Criminal Code. [See R. v. Arm- bruster, 2010 SKCA 25, 2010 CarswellSask 107 (Sask. C.A.).]

Were the Samples of the Accused’s Breath Provided “Directly” Into an Approved Instrument as Required by Section 258(1)(iii) of the Criminal Code? 72 During closing argument, I asked both counsel if there was evidence before me that the accused provided breath “directly” into an approved instrument. The word “directly” had not been used by Cpl. Jones. 73 Having further reviewed the evidence on this point, I am now satisfied beyond a reasonable doubt that the samples were provided directly into the approved instrument. In his demand to the accused at the scene, Cpl. Jones demanded that the accused provide samples of his breath suitable for analysis on an approved instrument. He described how the accused complied with his demand by providing three samples of his breath. He described the samples as being deep lung air and that the instrument used for analysis was an Intoxilyzer 5000C. This issue was considered by Gerein J. in R. v. Vandale (1982), 18 M.V.R. 150, 1982 CarswellSask 21 (Sask. Q.B.) where it was held that, with similar evidence, the trial judge was entitled to conclude that the section requir- 320 MOTOR VEHICLE REPORTS 4 M.V.R. (6th)

ing that samples be provided “directly” had been complied with. [See also R. v. Walters (1975), 26 C.C.C. (2d) 56 (N.S. C.A.); R. v. Notman, 1986 CarswellOnt 14 (Ont. Dist. Ct.); R. v. Auld, 1987 CarswellOnt 994 (Ont. Dist. Ct.).]

Has the Crown Proven That the Accused’s Ability to Operate a Motor Vehicle Was Impaired by Alcohol? 74 If the evidence of impairment establishes any degree of impairment ranging from slight to great which affects an accused’s ability to operate a motor vehicle then count 1 is made out. (R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.).) 75 Cpl. Jones is a police officer who, on the date in question, had about six years experience. He was also a qualified breath technician. One would expect that he had considerable experience with persons who were impaired. Although he dealt directly with the accused, he testified very candidly that he did not feel he had reasonable and probable grounds to believe the accused was impaired, prior to obtaining a fail reading on the ASD. The accused had a very red face. The accused slurred his words only slightly and he fumbled in his wallet. The only other possible indicia of impairment was later at the detachment when he asked the accused to stand on one foot. The accused held on to the wall to do this. Not much was said about this at trial and I do not find it to be unusual. Neither do I attach significance to the accused being in a vehicle which was in a snowbank. I do not have evidence that he drove it there. Even if I did, the evidence is that the streets were very icy with hard packed snow. 76 I am not satisfied that the accused’s ability to operate the vehicle was impaired by alcohol. I therefore find him not guilty of count 1. 77 I am not considering the Intoxilyzer readings in reaching my decision on this count.

Decision on the Voir Dire 78 The statements made to Cpl. Jones were voluntarily made by the accused. 79 There was no breach of s. 10 of the Charter. 80 Therefore all evidence from the voir dire is admitted as evidence in the trial.

Conclusion 81 Count 1: The accused is not guilty of count 1. 82 Count 2: The Crown has proven beyond a reasonable doubt that the accused had the care or control of a motor vehicle while he had 180 milligrams of alcohol in 100 millilitres of blood. All other essential elements of count 2 have been proven beyond a reasonable doubt. He is therefore guilty of count 2. Accused acquitted of having care and control of vehicle while impaired and convicted of having care and control of vehicle with excessive blood alcohol level.