Category Archives: APA Cadets

The importance of doing it right (lawful), because you just never know…….

R. v. Pearson 2017 ONCA 389 – on January 14, 2008, a male was killed after being shot in the back with a shotgun. Pearson later became a suspect in the killing (and another, but not the subject of this post), but prior to this, a day after the killing, while driving his Honda Civic in Peel Region, Pearson was observed by an officer. The Honda passed the officer’s unmarked police vehicle. The officer noted that the windows were tinted so darkly that he could not see any occupant in the vehicle. The Honda passed the officer and then drove to the right into the driving lane. The officer pulled into the passing lane of this multi-lane road and drove beside the Honda, but again could not see into the vehicle. The officer stopped the driver of the Honda after the driver had turned onto another street.

The officer approached the Honda, the driver lowered the window on the driver’s door and spoke with the officer. The first point of interest to the officer was the smell of marihuana coming from the inside of the Honda. The officer also noted that the driver’s eyes had a red color, that the driver was slow in his actions to provide his licence, insurance and ownership, was unusually calm for a person being stopped by the police, and was slow to get out of the vehicle when the officer asked him to do sobriety tests behind the vehicle. When Pearson did the sobriety tests, the officer noticed that he did not turn properly as instructed and that he had a tremor. He concluded that Pearson was impaired by the consumption of marihuana. Pearson had stated that he did not consume any alcoholic beverage that evening and that he had consumed marihuana.

Because the driver was arrested for operating a motor vehicle while his ability to do so was impaired by a drug, the officer told other officers to search the vehicle for drugs. While that search was conducted, another officer located two shotgun shells in the accused’s knapsack in the trunk of the Honda and delivered them to the arresting officer.  Later in the murder investigations when Pearson was a suspect, the investigators knew that Pearson had been found with shotgun shells close in time to the dates of the killings. The Centre of Forensic Sciences said the shotgun shells seized from Pearson were similar to those used in the killings.

As part of their case, defence argued that the shotgun shells found in Pearson’s car during the traffic stop on January 15, 2008, should have been excluded because the search of Pearson’s car was not incidental to his arrest for impaired driving. Defence conceded that the traffic stop of Pearson’s car was lawful, but argued on appeal that the search incident to arrest went too far. Searching the trunk, and the knapsack found in the trunk, for evidence helpful to the impaired driving offence was unreasonable, and the search should have been confined to the area close to the driver’s seat, argued defence.

Both the Ontario Superior Court of Justice (in its 2011 decision) and the ONCA here ruled that the arrest of Pearson for impaired driving was lawful. The search was undertaken to look for marihuana and by a police officer who was not involved at all in the homicide investigations. Citing R. v. Caslake [1998] 1 S.C.R. 51, in which the Supreme Court of Canada made the point at paragraphs 15 and 34 that automobiles are legitimately the objects of search incident to arrest, as they attract no heightened expectation of privacy that would justify an exemption from the usual common law principles, the ONCA agreed that with Pearson, the vehicle search was not a fishing expedition. Rather, it was purposeful. That purpose was to locate evidence that would be helpful to the impaired driving offence. The impaired driving accusation was that the impairment was the result of using a drug. Discovery of marihuana in the trunk of Pearson’s car and in his knapsack would have some probative value on the issue of whether his ability to drive was impaired by marihuana. There was a reasonable basis for the officer’s actions and a reasonable prospect of finding evidence of the offence for which the accused had been arrested.

Since the search of the vehicle was lawful and incident to arrest, the seized shotgun shells were lawfully seized and later able to be used in the murder trials.  So, though at the time of the traffic stop on that day in January the officer had no idea what would become of his lawful seizure and how it would assist the Crown’s case, the officer was lawful in his actions and as a result, evidence obtained was admitted at trial for the killings.

I wish this to serve as a reminder to the new recruits of my continual statements throughout your training on one of my many reasons why we must do things lawfully, and not get into a habit of thinking it is okay to walk in that “grey area” of the law or violate an individual’s rights for the sake of getting drugs or weapons off the street, because as in the case here, you just never know….the shotgun shells later became a piece of the larger puzzle and a piece that was admitted at trial because the officer in question at the time did things right (lawful).

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Section 10(b) of the Charter violated where accused arrested for impaired driving, indicated he wished to speak to a lawyer, but then after the breath demand was asked whether he would comply and he refused.

If you recall an earlier post of mine, R. v. Wiebe 2013 MBPC 27, from June of 2013, a similar situation has resulted again, so I have made this post as a reminder. This time, it comes out of a Quebec court. In Hammoud v. R. 2014 QCCQ 13252, following a traffic stop and after having observed a few symptoms of impairment by alcohol, the officer demanded that Mr. Hammoud provide a breath sample for analysis by an approved screening device. The result was “Fail”. Mr. Hammoud was then placed under arrest for operating a motor vehicle while his ability to drive was impaired by alcohol. The officer informed Mr. Hammoud of his constitutional rights and police warning. When the officer asked Mr. Hammoud “Do you wish to consult a duty counsel or any other lawyer?”, Mr. Hammoud answered “Yes”. Following the breath demand,  the officer asked Mr. Hammoud “Do you understand?” Mr. Hammoud answered affirmatively again. The officer then asked Mr. Hammoud whether he consented to follow him to the police station; Mr. Hammoud responded by asking “Do I have a choice?

That answer raised a doubt in the officer’s mind as to Mr. Hammoud’s comprehension of the information on the card, as it clearly sets out that refusal or failure to comply with the order is a criminal offence that may result in additional charges, so the officer read the card again. He went through each part carefully, and provided additional explanations in his own words as well. When asked if he understand, Mr. Hammoud responded affirmatively. The officer again asked Mr. Hammoud whether he consented to follow him to the police station. Mr. Hammoud answered “No”. To be sure, another officer read the card to Mr. Hammoud one more time, and summarized the information in his own words. The second officer then asked Mr. Hammoud whether he understood. Mr. Hammoud replied that he understood that the officers thought he was impaired and intended to take him to the police station so that he could blow into the breathalyzer. He also understood that if he were to refuse, his driver’s licence would be suspended and his car would be towed. Mr. Hammoud then said, “No, I don’t want to go, my lawyer will take care of it. See you in court.”

If you recall, in R. v. Prosper [1994] 3 S.C.R. 236, a case involving a breathalyzer demand, the majority of the Court ruled that, where an accused has indicated the desire to consult counsel, the police must provide the person with a reasonable opportunity to do so and must “hold off” from attempting to elicit incriminatory evidence, such as breath samples, from the accused until he or she has had this opportunity. In this case, the Honourable Anouk Desaulniers J.Q.C. said allowing detainees to call their lawyer from inside a patrol car may potentially raise issues with respect to safety and confidentiality, but the police could have taken Mr. Hammoud to the police station, which was only a few minutes away, to provide him with an opportunity to make a confidential call to his lawyer, before asking him to respond to a breathalyzer demand, and on a balance of probabilities, ruled his right to counsel under section 10(b) of the Charter had been infringed (of note to the police cadets, this issue pertains to a breath demand. The Supreme Court of Canada has made it clear that requiring a motorist to blow into an approved screening device without being entitled to consult a lawyer is a reasonable limitation on the right to retain and instruct counsel; within limits of course).  The Judge ordered the exclusion of the refusal evidence under section 24(2) of the Charter.

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Section 10(b) Charter – Rights to Counsel – the Implementational Facet Continued

For this post, I won’t get into alot of details surrounding the cases because the cases simply reaffirm existing case law in this area. The post is meant as a reminder to us, and to help instruct this year’s Police Squads 107 & 108.

R. v. Owens 2014 ONSC 7471 – Owens was convicted December 20, 2013 of, on November 10, 2012 operating a motor vehicle with blood alcohol in excess of the legal limit. The sole issue at trial and on this appeal was the admissibility of the breath samples. Owens submitted that the breath samples should have been ruled inadmissible as his s.10 (b) Charter rights were violated. Upon being arrested, Owens was advised by police of his rights to counsel. There was no issue that police complied with the informational components of that advice. Upon doing so, the arresting officer asked Owens “Do you wish to call a lawyer now?” Owens replied “No, not right now.” Owens was then transported to the police station where he was asked to and did provide samples into an approved instrument. Only after providing those samples was Owens asked again whether he wished to contact counsel. His reply at that time was “No, I have nothing to hide.”

The Honourable Gisele M. Miller said that the right to counsel is not absolute; a person detained by police must invoke the right and be reasonably diligent in exercising it: R. v. Bartle, [1994] 3 S.C.R. 173 at para. 18. However, the standard for waiver of a detained person’s 10(b) rights is very high: R. v. Prosper [1994] 3 S.C.R. 236; R. v. Clarkson [1986] 1 S.C.R. 383. Such a waiver must be clear and unequivocal and it must be given with full knowledge of both the rights being waived and the consequences of the waiver: Clarkson, Supra. Owens’ response to the question “Do you wish to call a lawyer now?” did not amount to a clear and unequivocal waiver. “Not right now” is not the same as an unequivocal “No.” Rather, it logically implies a future exercise of the right.”

As recently affirmed in R. v. Taylor 2014 SCC 50 at paragraph 31 “a police officer’s implementational duties under s. 10(b) are necessarily limited in urgent or dangerous circumstances” but it has also been clear since R. v. Prosper [1994] S.C.J. No. 72 that in the context of impaired driving cases, the existence of the two-hour evidentiary presumption available to the Crown under s. 258(1)(c)(ii) of the Code does not, by itself, constitute such a compelling or urgent circumstance. In this case, where the waiver is not obvious and unequivocal, it is incumbent upon us to explore the matter further to seek clarification of the response and give the Prosper warning. The other option would of been a “permissible fresh start” and effectively sever subsequent interactions from the earlier breach by the officer by asking Owens again if he wished to contact a lawyer upon their arrival at the police station, and before the taking of the breath samples; the latter option is a case-specific inquiry however.

In the end, Justice Miller excluded the breath test results from the evidence and Owens was acquitted.

The next case in this post is R. v. Briscoe 2015 ABCA 2 – the accused challenged his convictions for kidnapping, sexual assault, and first degree murder of a 13 year old girl; the events occurred in April, 2005. I will focus on the second ground of appeal – the admission into evidence of statements of the accused to the investigators. The accused argued that when the officer raised the possibility of providing a DNA sample and raised the possibility of whether he might consent to taking a polygraph test, he had his right to retain and instruct counsel re-engaged. This argument assumed there was then at least a prospect of a “non-routine procedure” taking place. Significantly, neither form of “non-routine procedure” actually took place. The officer asked if the accused would consent to these things, but nothing came of it. To reiterate R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310: “the right to counsel is essentially a one-time matter with few recognized exceptions” (para. 64); “it is helpful to indicate situations in which it appears clear that a second consultation with counsel is so required” (para. 49); (a) a new and non-routine procedure which involves the detainee such as participation in a lineup or submitting to a polygraph (para. 50); (b) a change in jeopardy (para. 51); (c) a reason to question the detainee’s understanding of their Charter s. 10(b) right (para. 52).”

One judge in the 3-panel decision said if the accused had, in his initial legal consultation, received advice against participating in a re-enactment or a lineup or against providing samples or against taking a polygraph examination, further advice from counsel would not have been required to assure his legal balance. In this case, the dealing between the police and the accused was an interview; no “new” procedure actually became involved. The other two judges, however, decided that if the requests, both to participate in a polygraph test, and to provide a DNA sample, are non-routine procedures, the police must first secure a detainee’s permission before proceeding, and it is at this point that he needs legal advice to make a meaningful choice as to whether or not to cooperate in these procedures. It is at the time the request is made that the right to counsel arises. Notwithstanding this breach of the accused’s Charter rights, however, the evidence was not excluded following the s. 24(2) analysis.

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Reasonable and probable grounds to arrest

Can v. Calgary Police Service [2014] A.J. No. 1112 (C.A.) – an Alberta Court of Appeal has examined the threshold to be met for the “reasonable and probable grounds” standard, or to us officers after the 1985 era, the “reasonable grounds” standard. This will serve as a reminder to us experienced officers, while at the same time, hopefully I can assist the recruits in furthering their understanding of this concept.

The Supreme Court of Canada set out the governing test in R. v. Storrey, [1990] 1 S.C.R. 241, at p. 250-1:

In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

Section 495(1) of the Criminal Code stipulates that a peace officer may effect a warrantless arrest under a number of scenarios. One, set out in s. 495(1)(a), is that a “peace officer may arrest without warrant … a person who … on reasonable grounds … he believes has committed … an indictable
offence”.

But what degree of certainty is required before peace officer X can be held to believe that A has committed an indictable offence? If 100 percent certainty is not necessary, what lesser degree of certainty is required before one can conclude that X believes A has committed an indictable offence? Is it enough if X believes that it is more likely than not — fifty-one percent degree of certainty — that A has committed an offence? Is it enough if X is moderately certain — a degree of certainty approaching fifty percent — that A has committed an indictable offence? Is it enough if X suspects that A has committed an indictable offence?

Will the state allow a peace officer to arrest a person only if a fact pattern exists which allows a reasonable person to conclude that it is at least more likely than not that the person has committed a criminal offence? Professors Coughlan and Luther, in Detention and Arrest 76-78 (2010) are satisfied that this is the standard for a lawful warrantless arrest in Canada:

In the arrest context, the standard does not require so high a standard as prima facie case. However, it does require that the thing believed be more likely than not, that it be probable. … Many courts, the Supreme Court among them, have continued to use the phrase “reasonable and probable” when speaking of the required grounds for arrest. … It has occasionally been suggested that “reasonable grounds” in the arrest context can be satisfied by something less than probability, but this interpretation arises from failure to pay attention to context. The source of the confusion is a statement by the Supreme Court in Mugesera v. Canada … in which the Court said that reasonable grounds to believe required less than the civil standard of proof on the balance of probabilities. To apply this in the arrest context is to ignore that it is a statement about the standard in the Immigration Act for refusing entry to suspected war criminals, not a standard in the Criminal Code … There is no basis for thinking that it overrides [the Supreme Court’s] statements in Storrey, Debot, Barren v. Canada, or other cases which maintain the probability requirement.

A fifty-one percent degree of certainty is the starting point of the high degree of certainty sector of the spectrum. …

This point on the scale measuring likelihood of criminality — a high degree of certainty — would accord considerable weight to the liberty value. At the same time, settling on this measure as opposed to a less onerous standard, impairs to some extent the community’s ability to vigorously pursue law enforcement objectives. Most jurists would be reluctant to adopt such a demanding standard for a lawful warrantless arrest.

The Supreme Court of Canada has never stated with precision the degree of certainty that justifies an arrest under s. 450(1)(a) of the Criminal Code (revised to s. 495(1)(a) CC). Generally, speaking, it has been content to tell us what it is not.

A review of the Supreme Court of Canada’s opinions on warrantless arrest demonstrates that there are only two possible answers to how certain must the arrestor and the objective evaluator be before an arrest under s. 495(1)(a) of the Criminal Code is lawful. It is either a moderate or a high degree of certainty. There is no reason to argue that the extremely low, low or very high degrees of certainty have any judicial support.

First, the arrestor must believe, at the time the arrest was made, that there is (a) a moderate degree of certainty or (b) a high degree of certainty that the arrestee has committed an indictable offence. This is a subjective assessment and a question of fact. …

The second condition exists if a reasonable person, with the arrestor’s training and experience and aware of the facts known to the arrestor, would conclude that (a) there is a moderate degree of certainty or (b) a high degree of certainty that the arrestee has committed an indictable offence.

The existence of the second condition is a question of law and an objective evaluation. …

And as the Honourable Thomas W. Wakeling stated in this decision:

But I am troubled by the fact that the Supreme Court of Canada has not clearly articulated the standard it favors for a warrantless arrest. …”

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Trial Judge’s decision not to exclude breath samples upon Grant analysis following a s. 10(b) Charter breach overturned and a new trial was ordered.

Surprisingly, I am still getting questions regarding the “Prosper Warning” from experienced officers in the field when this has been law and practice since 1994. I am not sure if there has been an issue with training in previous years during recruit training or agency training, or misinformation circulating due to the practice of not even having the “Supplemental-Warning” on the pre-printed Charter/Caution cards given to us by some of our agencies and officers not taking it upon themselves to ensure they have one.  Whatever the issue, in my role, I can only assist with the educational, training, and informational aspect of it, and I have no control over the latter (warning not included in the pre-printed cards). In the end, as officers, we are ultimately responsible for our legal knowledge and ensuring we have this “Supplemental-Warning”, for example, to use.  After-all, we are the ones on the witness-stand testifying, having to articulate and justify our actions on a daily basis, and being scrutinized by the courts in the process.  It’s not easy by no means, so if I can help IN ANY WAY, I will do my best when asked.

Hopefully, no one has been offended by my statements above, but I feel passionate about educating officers on such issues so that we don’t lose cases on cross-examination (or appeal) when a good defence counsel calls us on our actions, or non-actions, when maybe it could of been avoided if we had the training and information given to us to draw upon…..that’s now within my role and hopefully I can live up to the expectations. On to the case that coincidentally was decided just as I’ve been getting questions about this issue that will hopefully reaffirm why I feel this information needs to get out there to each of us. This is by no means meant to make anyone look bad or offend anyone, but rather for educational purposes and information like all my blog posts.

R. v. Deleersnyder 2014 ONSC 3207 – in this summary conviction appeal, the appellant appealed his conviction on a charge of having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood while operating a motor vehicle, contrary to s. 253(1)(b) of the Criminal Code, made by the Ontario Court of Justice.

On February 19, 2009 at 2:28 a.m. the appellant was stopped by an officer with the Sarnia Police Services. The appellant at the time was operating his motor vehicle. As a result of information received by the officer from the appellant, a demand was made pursuant to which the appellant provided a sample of his breath into an approved screening device. The analysis of the sample registered as a “failure” and at 2:35 a.m., and the officer arrested the appellant for operating a motor vehicle while the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. Following his arrest, the appellant was advised of his rights to counsel at 2:37 a.m. The appellant indicated that he understood the rights given and that he did not wish to contact a lawyer. The arresting officer made a demand for samples of the appellant’s breath for the purposes of analysis and the appellant was taken to the Sarnia Police Headquarters at 2:43 a.m., arriving at 2:49 a.m.

On his arrival at the police station, the appellant was paraded by the arresting officer before the supervisor, a Staff Sergeant, at 2:55 a.m. The arresting officer advised the Staff Sergeant as to the time and reason for the appellant’s arrest, that the appellant had been given his rights to counsel, and that the appellant had declined a lawyer. The arresting officer conceded during cross-examination that he had heard the Staff Sergeant ask the appellant if the appellant wished to call a lawyer, to which both officers heard the appellant’s response of “not yet”. Neither officer asked the appellant anything about contacting a lawyer or to clarify the words spoken by the appellant in response to the question from the Staff Sergeant, nor did either officer advise the appellant that the police were required to hold off attempting to obtain evidence from the appellant until the appellant had had an opportunity of contacting counsel (Prosper-Warning).

The arresting officer turned the appellant over to the breath technician at 3:04 a.m. The arresting officer advised the breath technician in the presence of the appellant as to the time and reasons for the appellant’s arrest and that the appellant had been given his rights to counsel and that the appellant had declined a lawyer. The arresting officer did not advise the breath technician that the appellant had replied “not yet” to the Staff Sergeant’s question about contacting a lawyer.

It was the Staff Sergeant’s evidence that in accordance with the usual procedure, he advised the appellant of his rights to counsel and he asked the appellant if he understood his rights to counsel to which the appellant answered that he did. He asked the appellant if he wished to contact a lawyer and the appellant replied “not yet” to him. It was the Staff Sergeant’s evidence that he took this to mean that the appellant did not want to speak to a lawyer, but perhaps he did later. The Staff Sergeant did not seek any clarification from the appellant as to the words “not yet”. Further, the Staff Sergeant did not discuss the appellant’s response “not yet” with the arresting officer, who was present. Further still, the Staff Sergeant did not relay this response to the breath technician. The Staff Sergeant admitted that the appellant’s answer “not yet”, was something that should be given to the technician who was doing the breath test. Having admitted that he should have advised the technician about the appellant’s answer, the Staff Sergeant did not explain why he did not inform the breath technician about the appellant’s answer “not yet”.

It was the arresting officer’s evidence that the testing procedure conducted by the breath technician took until 3:31 a.m. During this time, the arresting officer remained in the breath room, within earshot of the appellant and the breath technician, and during that time the arresting officer did not hear anything from the appellant about contacting a lawyer.

It was the breath technician’s evidence that after he took custody of the appellant, he gave the appellant his rights to counsel. The appellant stated that he understood the rights given to him and that in response to a question from the breath technician as to whether he wished to call a lawyer, the appellant stated that he did not wish to call a lawyer. It was also his evidence that at no time while the appellant was in his custody did the appellant ask for a lawyer. Although the breath technician conceded that he did not have a note as to the precise words spoken by the appellant in response to the question as to whether the appellant wished to speak to counsel, he was clear that the appellant would have been given an opportunity to contact counsel had the appellant requested to do so.

It was the appellant’s evidence that he was reasonably confident that he had told the breath technician that he did not have a lawyer rather than telling the breath techncian that he did not wish to call a lawyer. The evidence of the breath technician contradicted the appellant; it was the breath technician’s evidence that the appellant had indicated that he did not wish to call a lawyer. Further, it was the appellant’s evidence that he had not been told by the breath technician that there was a 1-800 number available to call duty counsel. In his evidence, the appellant conceded that he had not asked the police to assist him in contacting counsel. The appellant testified that he had been treated decently throughout this process. The appellant agreed that he could have had a private call to a lawyer if he wished to contact somebody, but that he had refrained from doing so because he was nervous and upset and he did not want to say anything because he did not know what to do.

The certificate of analysis as to the appellant’s breath samples, as completed by the breath technician, indicated results of 120 milligrams of alcohol in 100 millilitres of blood for both breath samples.

The main issue on appeal related to the first of the Grant factors: the seriousness of the Charter – infringing state conduct. The central argument advanced by the appellant was that both the Staff Sergeant and the arresting officer were aware of the appellant’s “not yet” response given to the Staff Sergeant in response to the question as to whether the appellant wished to contact a lawyer now. The appellant submits that the “not yet” response did not constitute a waiver by the appellant of his rights to counsel, and created an obligation on both officers to “hold off” on the process of obtaining breath samples until the appellant had an opportunity to contact a lawyer. Further, the appellant submits that neither officer informed the breath technician as to the “not yet” response; but rather the arresting officer had indicated instead that the appellant had waived his right to counsel (referring to the appellant’s response while at the roadside).

In relation to credibility, the trial judge concluded that the appellant’s evidence on the voir dire was vague, lacking in detail and not reliable. The trial judge found that the evidence of all three police officers was consistent and the trial judge accepted their evidence. The ONSC ruled there was no basis in this appeal to disturb those findings. The trial judge found that the appellant’s response of “not yet” to the Staff Sergeant’s question as to whether he wished to contact a lawyer now, was ambiguous and did not constitute a waiver by the appellant as to his s. 10(b) right to counsel. This led to the trial judge’s further findings that: the Staff Sergeant ought to have cleared up the ambiguity and he did not; that although the primary responsibility to clean up this ambiguity fell to the Staff Sergeant, that the arresting officer should have cleared up the ambiguity and he did not do so. The trial judge accepted what the arresting officer told the breath technician about the appellant’s arrest, including him advising the breath technician that the appellant had declined his right to counsel at the roadside. In examining the fact that although the breath technician was not made aware of the “not yet” response by the appellant to the Staff Sergeant, the trial judge considered the fact that the breath technician independently advised the appellant of his right to counsel and that the appellant declined. Specifically, the trial judge considered whether the appellant’s response to the breath technician constituted a waiver of his right to counsel. The trial judge concluded that there was no waiver by the appellant stating as follows:

… While in other circumstances Mr. Deleersnyder’s response to [the breath technician] would constitute a waiver of the right to counsel, it cannot here. [The arresting officer and the Staff Sargent] had an obligation to advise the accused of their obligation to hold off on the next step in the investigation. This is the law according to Regina v. Prosper, a decision of the Supreme Court of Canada which creates three duties on the police:

(a) the duty to inform of the right of counsel,

(b) the duty to give a reasonable opportunity to consult counsel, and

(c) the duty to hold off in eliciting further evidence from an accused who has expressed a desire to consult counsel until such times as they have had that opportunity.

As an aspect of this latter duty, there is an additional component where an accused asserts the right to counsel and then indicates the change in that position. As stated by Mr. Justice Lamer in Prosper, and I quote:

At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity.

The trial judge then considered the failure of the police to hold off on further investigation, as follows:

… After advising Mr. Deleersnyder of his right to counsel, [the breath technician] received what appeared to him to be a clear waiver of the right to counsel. Since there was no clear waiver in response to the [Staff Sergeant’s] question, Mr. Deleersnyder should have been told by [the breath technician], or by someone, of the obligation on the police to hold off in the next step of the investigation. …

The trial judge found that the failure of the police to notify the appellant of this additional obligation to hold off was a violation of the appellant’s s. 10(b) right based on R. v. Prosper, [1994] 3 S.C.R. 236 (S.C.C.). Having found a violation of the appellant’s s. 10(b) right to counsel, the trial judge relied on the fact that the appellant waived his right to counsel at the roadside, and that the police had therefore complied with the appellant’s Charter-protected right to counsel. The trial judge reached this conclusion by finding that the Staff Sergeant, and also the breath technician, had no obligation to advise the appellant as to his right to counsel. The trial judge viewed the steps taken by the Staff Sergeant in advising the appellant of his right to counsel only “as a precautionary measure”. The trial judge reasoned that this step was indicative of a respect for the Charter-protected right of the appellant. The trial judge characterized the failure of the Staff Sergeant and the arresting officer to clarify what the appellant meant by “not yet”, as more indicative of inadvertence rather than an act showing “flagrant disregard” for the appellant’s rights.

The ONSC said with respect to a detainee’s waiver, once a detainee asserts a right to counsel, there must be a clear indication that the detainee has changed his or her mind and the Crown bears the burden of establishing an unequivocal waiver: R. v. Prosper, at para.45. With respect, Justice V. Mitrow J. of the ONSC found that the trial judge’s conclusion that the police conduct was inadvertent and on the lower end of the spectrum of seriousness to be unreasonable. According to Justice Mitrow, the trial judge focused on the informational aspect of the state’s obligation towards the appellant’s s. 10(b) right to counsel. This occurred when the trial judge considered that after declining his right to counsel at the roadside, the appellant was later advised of that same right by both the Staff Sergeant and the breath technician even though there was no obligation to do so. The trial judge, in effect, found that this conduct mitigated the failure of the police to properly respond to the “not yet” statement by the appellant, leading the trial judge to find that the police conduct was inadvertent. The trial judge, in emphasising the informational component of the appellant’s right to counsel, gave insufficient or no consideration to the breach of the state’s obligation regarding the implementational component of the appellant’s s. 10(b) right.

Justice Mitrow said the trial judge’s finding “… that there was no need for any further advice by the police with respect to the Charter of Rights” was unreasonable given the failure of the Staff Sergeant and the arresting officer to properly respond to the appellant’s “not yet” response, and their failure to tell the appellant of the police obligation to “hold off”. In R. v. Grant, [2009] S.C.J. No. 32 , at para. 74, it was noted that state conduct resulting in Charter violations varies in seriousness from “inadvertent or minor violations” at one end of the spectrum to wilful or reckless disregard of Charter rights at the other end of the spectrum. Justice Mitrow said the totality of the aforementioned conduct, at least on the part of the Staff Sergeant and the arresting officer, was far more indicative as a minimum of negligence, not mere inadvertence. The trial judge’s reasons, as a whole, suggested that the police were viewed as acting in good faith, which Justice Mitrow found to be unreasonable based on the record and the trial judge’s findings of fact. Ignorance of Charter standards must not be rewarded, or encouraged, and negligence or wilful blindness cannot be equated with good faith: R. v. Grant, supra at para.75.

In view of the conclusion reached on the ground of appeal in relation to the seriousness of the police conduct, Justice Mitrow found that the appeal should be allowed and the conviction quashed, and a new trial was ordered before a different judge in the Ontario Court of Justice at Sarnia.

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Filed under APA Cadets, Impaired Driving, Recent Case Law, Section 10 Charter, Worthy of a Review

Where a driver admits to having consumed alcohol, even though there is no clarification of quantity or timing of consumption, the admission of alcohol consumption is sufficient to ground reasonable suspicion

R. v. Flight 2014 ABCA 185After playing in a golf tournament, where he consumed alcohol, the accused went for a drive. While driving on a paved rural road, the accused accelerated his vehicle, causing it to fishtail out of control and cross the centre line where it collided with the victims’ vehicle. The driver of the victims’ vehicle died at the scene and the passenger was admitted to hospital. The accused’s vehicle’s Onstar service reported the collision to police. When the police spoke with the accused at the scene, he did not notice anything unusual about the accused’s motor skills or speech and he did not detect an odour of alcohol. After the accused admitted that he had a couple of drinks, the officer made a roadside approved screening device (ASD) demand. Once the accused was in the police car, the officer noted an odour of alcohol. The ASD registered a “fail” and the accused was arrested for impaired driving. At the police station, the accused spontaneously stated that he was driving too fast. He also indicated that he had his last drink some three or four hours earlier. After speaking with two lawyers, the accused provided breath samples that gave readings of .10 and .09. At trial, the Crown called Ms. Patricia Lehmann, a toxicology expert, to provide evidence about the appellant’s blood alcohol concentration at the time of the crash and about the effects of alcohol on driving ability. She estimated a blood alcohol concentration level over the legal limit: between 99 and 147 mg% at the time of the crash.

Among the issues on the appeal was whether an admission of alcohol consumption was sufficient grounds for an ASD demand or whether the officer had to obtain drinking times and calculate or estimate whether there would be alcohol in the system as some Alberta cases had held. The ABCA holds that in most cases, a simple admission of consumption is sufficient (Note that this case also considered the impact of R. v. Chehil [2013] S.C.J. No. 49 which was not a drinking and driving case, but provides important instruction on the reasonable suspicion standard).

Section 254 of the Criminal Code sets out a two-stage scheme to address the dangers of impaired driving: R. v. Woods, 2005 SCC 42 at paras 6 and 30, [2005] 2 SCR 205; see also R. v. Bernshaw, [1995] 1 SCR 254 at paras 20-21, 35 CR (4th) 201. The first stage is set out in section 254(2). This section authorizes a peace officer to demand a roadside ASD sample if the peace officer has a reasonable suspicion that the driver has alcohol in his body. An ASD will show a pass, a warning, or a fail result. This serves an important investigatory, screening function, and permits a peace officer to determine whether further, more conclusive, testing is warranted: Bernshaw at para 20. In normal circumstances, a “fail” result from an ASD is sufficient to provide a peace officer with the requisite reasonable and probable grounds to proceed to the second stage: Bernshaw at para 49. The second stage is set out in section 254(3). It authorizes a peace officer who has reasonable grounds to believe that a driver has committed an impaired driving offence to demand samples for a breathalyzer test. A breathalyzer is a more precise instrument. It permits peace officers to determine the alcohol concentration in a person’s blood, and determine whether the driver’s alcohol level exceeds the limit prescribed by law: Woods at para 3. Because a breathalyzer test is more intrusive, the grounds required to make such a demand are higher.

 The reasonable suspicion standard has both subjective and objective elements. The Supreme Court clarified the reasonable suspicion standard in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 and R. v. MacKenzie, [2013] S.C.J. No. 50, 2013 SCC 50, [2013] 3 S.C.R. 250.

In Chehil, Justice Karakatsanis J. emphasized that the reasonable suspicion standard is a lower standard than that of reasonable and probable grounds, as it engages the “reasonable possibility, rather than probability” of crime: para 27. She cautioned that courts should avoid confusing the two standards: Chehil at para 27; see also MacKenzie at para 84. She summarized the proper approach as follows at para 29:

Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience […]. A police officer’s grounds for reasonable suspicion cannot be assessed in isolation [citations omitted].

However, peace officers are not under a duty to undertake further investigation to “seek out exculpatory factors or rule out possible innocent explanations”: Chehil at para 34. The hallmarks of the exercise are “common sense, flexibility, and practical everyday experience”: MacKenzie at para 73.

The reasonable suspicion standard is designed to strike a balance between an individual’s privacy interests and the public interest in enabling law enforcement to investigate crime: Chehil at para 22. Any suspicion must be grounded in “objectively discernable facts, which can then be subjected to independent judicial scrutiny”: Chehil at para 26. The requirement that a peace officer’s suspicion be objectively reasonable provides needed rigour to the standard, and prevents indiscriminate breaches of privacy interests: Chehil at para 25.

The central issue in the case at hand can be framed as follows: where a driver admits to having consumed alcohol, but there is no clarification about the quantity or timing of consumption, is the driver’s admission alone sufficient to ground an objectively justifiable, reasonable suspicion that the driver has alcohol in his body? There are two divergent lines of authority which have developed in Alberta on this very point: the first line of authority stems from R. v. Thomas, [2008] A.J. No. 1121, 2008 ABQB 610, 461 AR 216 and R. v. Dunn; R. v. Bouvier, 2007 ABPC 160, [2007] A.J. No. 664 [Thomas/Dunn]. The second stems from R. v. Hnetka, [2007] A.J. No. 806, 2007 ABPC 197, 426 AR 254. Several decisions have lined up on either side of the issue: see R. v. Nanooch, [2010] A.J. No. 1167, 2010 ABPC 331 at paras 15-29, 37 Alta LR (5th) 259.

The Manitoba Court of Appeal recently considered these divergent approaches in R. v. Mitchell, [2013] M.J. No. 161, 2013 MBCA 44, 291 Man R (2d) 231. Writing for the Court, Monnin JA was not prepared to say that a simple admission of alcohol consumption will always, in and of itself, be sufficient to provide a reasonable suspicion. However, he noted that there will rarely be a need for a peace officer to obtain an alcohol consumption history from a driver before forming a reasonable suspicion.

In the case at hand, the ABCA agreed with the conclusions of the Manitoba Court of Appeal in Mitchell. In most cases, the admission of consumption alone, without further information about the amount and/or timing of consumption, will be sufficient to ground an objectively reasonable suspicion. Police officers should not be required to inquire into alcohol consumption history with a driver at the roadside.

[W]here, as here, the police have arrived to the scene of a serious motor vehicle accident … [i]t should be no surprise to anyone that in such a situation, an investigating officer would inquire about alcohol consumption. If the inquiry had not been made, there may be a suggestion that the police did not conduct a thorough investigation. The appellant responded in an unqualified manner that he had “a couple of drinks.” In these circumstances, it is reasonable to infer that he was referring to alcoholic drinks and that his consumption was relatively recent.

In the view of the ABCA, the wording of section 254(2) suggests that the admission of alcohol alone will, generally, ground an objectively justifiable, reasonable suspicion. That section provides that a peace officer can make a roadside ASD demand where he “has reasonable grounds to suspect that a person has alcohol or a drug in their body and that person has, within the preceding three hours, operated a motor vehicle”. As noted by this same Court in R. v. Gilroy (1987), 79 AR 318, 3 MVR (2d) 123, the test for reasonable suspicion in section 254(2) is based on consumption alone, not its amount or effects.

Where a driver qualifies an admission of consumption temporally, this alone may not be sufficient to ground a reasonable suspicion: see R. v. Kimmel, [2008] A.J. No. 1120, 2008 ABQB 594 at paras 34-35, 459 AR 95. Each case must be assessed on its own facts.

Like Monnin JA at the Manitoba Court of Appeal, however, the ABCA did not go so far as to suggest that an admission of alcohol consumption alone will always be enough to meet the reasonable suspicion threshold. Again, each case must be decided on its own facts and the constellation of relevant factors must be examined in their totality. The police are entitled (and, indeed, required) to react to circumstances as they develop. All of the circumstances known to the officer at the relevant time must be considered together, not in isolation.

In summary, the ABCA concluded that:

“In most cases, admission of consumption alone will be sufficient to ground an objectively reasonable suspicion. Reasonable suspicion is a low standard. Police officers are not required to inquire into an alcohol consumption history with a driver at the roadside. However, each case must be assessed on its own facts. Police officers must respond to information as it unfolds.”

“This conclusion is also grounded in practicalities. To require peace officers to conduct a roadside calculation of likely current impairment based on common elimination rates is unrealistic and does not reflect the practical realities of a roadside stop, nor the two-stage scheme that Parliament has established in section 254: see Dunn at para 15. Parliament created a framework for ready-use in the field. Turning it into a standard difficult to apply would thwart Parliament’s will.”

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A vice-principal at the accused’s school is a “person in authority” in relation to the accused’s statements on drug charges

R. v. Ermine 2014 SKPC 67 – as this case is out of the Saskatchewan Provincial Court, it has no binding effect, but it is interesting because of the principles discussed in it.

Drugs were found in a school locker shared by the accused and another student. When the accused was asked to remove her belongings from the locker and she took the purse containing the drug, the other student was excused.  The accused, however, was taken to the office where the vice-principal began to question her. The vice-principal sat behind his desk and the accused sat in a chair on the other side of the desk. He then began asking the accused questions. It was at this point that the witnesses begin to give some divergent testimony as to what occurred. The vice-principal said that he questioned the accused in his office for about an hour. She was upset and crying. He asked her if she was selling the drugs at school. She acknowledged that she was but that this was the first time that she had done this. He asked her where she got the drugs and she said from a family friend. He was not yelling at the accused and he denied threatening the accused, making any promises to her, or saying anything by way of an inducement to get her to talk.

The vice-principal said that his normal practice is to interview the student and then decide if the police should be called. In this case, he said that after the accused admitted selling at school, he told her he was going to call the police. This interview occurred on a Friday and it was his recollection that he called the police on the following Monday. After the interview was completed, he let the accused go but kept her purse and the contraband he had located and put them in the school safe until an officer could come and get them. This discussion in the vice-principal’s office was not videotaped or audiotaped and no written statement or verbatim accounting of the questions asked and the answers given were created. At the end of the questioning, the vice-principal made some notes of what he recalled was said, but by his own admission, there were a lot of questions and answers that he did not make note of. He admitted that the length of time that had passed from the meeting in his office until his testimony at trial had affected his memory.

The accused gave a somewhat different version of what took place in the vice-principal’s office. She testified that once the vice-principal found the drugs in her purse, he told her to come to his office. She went to the vice-principal’s office with him and another teacher because she did not feel that she had a choice. In the office, the vice-principal sat behind his desk, she sat in front of his desk and the other teacher sat in a chair by the door. The vice-principal did not tell her she could call her grandparents or anyone else, that she did not have to say anything or that she could leave at any time. Instead, he just started questioning her. The accused said that she was questioned by the vice-principal in his office for over an hour. He kept asking her if she was selling drugs at school. She kept denying that she was selling. He asked her where she got her drugs from but she refused to answer. She got up to leave a couple of times and the vice-principal told her to sit down. The other teacher was sitting by the office door so she sat down as she did not think she could leave. The vice-principal threatened to call the police a number of times if she did not answer his questions. He said that she would spend the weekend in Pinegrove, meaning the Correctional Centre for Women. The accused was getting tired, she was scared that she would end up going to Pinegrove and she wanted to go home. She thought that the only way that she would get out of the vice-principal’s office and not end up in jail would be to tell him what he wanted to hear. She did not feel that she had any other options. As a result, she told the vice-principal that she was selling and where the drugs had come from. It was only then that he let her leave, but told her she was suspended from school for three days. He also kept her purse and its contents. The only thing he gave back to her before she left was her cell phone.

The female student was subsequently charged with possession of cannabis marihuana for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and further, that she had possession of hydromorphone contrary to s. 4(1) of the Controlled Drugs and Substances Act. The question on the voir dire was whether the statements the accused made to vice-principal in his office, in effect a confession, were admissible as evidence in the trial proper. These statements are governed by the confessions rule. This rule states that:

No statement made out of court by an accused to a person in authority can be admitted into evidence against him or her unless the prosecution shows to the satisfaction of the trial judge that this statement was made freely and voluntarily.

The Honourable Provincial Court Judge D.E. Labach said there was an evidentiary burden on the accused to show that there was a valid issue for consideration in that when the accused made the confession, she believed that the person to whom it was made was a person in authority. A person in authority is generally someone engaged in the arrest, detention, interrogation or prosecution of the accused. When one thinks of a person in authority, what immediately comes to mind is a police officer or Crown prosecutor. However, there is no catalogue of persons who are automatically considered “persons in authority” solely by virtue of their status. While these traditional examples will usually be considered persons in authority, so too will persons whom the confessor perceives to be an agent of the police or prosecuting authorities, allied with the state authorities or acting on behalf or in concert with the police or prosecuting authorities.

In this case, said the Judge, the accused had met the evidentiary burden. She testified that despite the fact that the vice-principal had already found the marihuana in her purse, she still had to go to his office where he questioned her behind closed doors for over an hour. Throughout the questioning, he was adamant that they were going to get to the bottom of this and that he needed to know if she was selling at school and who she got her drugs from. She tried to leave and he told her to sit down. She denied selling drugs at school more than once but he would not accept that answer. He made it clear to her that if she did not admit that she was selling and who she got her drugs from, he would call the police and she would spend the weekend in jail. He suggested it would go better for her with the police if she cooperated with him and later he made it clear to her that given the quantity of drugs she had, he was going to call the police and pass that information on to them. She was scared about going to jail for the weekend and felt that her only option to get out of the office was to tell him what he wanted to hear. This was some evidence that the accused believed the vice-principal was acting as an agent of the police or in concert with them sufficient to shift the burden to the Crown.

The Judge said, in this case, the vice-principal had found drugs and drug paraphernalia in the accused’s purse before he ordered her to his office for questioning. He had a basis to suspend her from school and to report the contraband to the police. He kept the purse, the drugs, and the drug paraphenalia. He did not have to do anything more than give the police the items he seized, provide a statement to them, and let the police investigate and lay the appropriate charges. Instead, he chose to question the accused further, so the only inference the court could draw was that the vice-principal was attempting to get information to give to the police to justify a more serious trafficking charge.

Accordingly, considering all of the evidence, the Judge concluded that the vice-principal was acting as a person in authority vis-a-vis the accused and the court was not satisfied that the confession made by the accused to the vice-principal was voluntarily made by her and the Judge was concerned that it was not reliable. As a result, the accused’s statements made to the vice-principal in his office were not admitted as evidence on the Charter voir dire or the trial proper.

 

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Filed under Acting as an Agent of the State, APA Cadets

Where a police officer cannot lawfully arrest an accused based upon an arrest warrant in another jurisdiction because the warrant was not endorsed pursuant to s. 528 of the Criminal Code, the fact of the outstanding warrant cannot provide reasonable grounds for an arrest under s. 495(1)(a) of the Code.

R. v. Marges 2012 YKTC 102 – this case out of the Yukon discussed several issues that should be of interest to both police cadets and experienced officers in regards to a warrant of arrest. The testimony leading up to the vehicle stop will not be discussed in this post, but suffice it to say that the Judge found that the vehicle stop itself was lawful.  Following the vehicle stop, the officer asked the driver, Mr. Marges, for his driver’s license and the vehicle registration and these were provided to him. The officer could smell liquor in the vehicle and Mr. Marges stated that he had consumed three beers. Thus, the officer formed the opinion that he had grounds to make the approved screening device (“ASD”) demand. As he did not have an ASD with him, the officer did not make the demand at that time. The officer asked dispatch to query Mr. Marges’ driver’s license and within a minute, this information was provided to the officer.  In addition, dispatch told the officer that Mr. Marges had an outstanding warrant for his arrest in Saskatchewan on a charge of possession for the purpose of trafficking and that Mr. Marges was also on a Recognizance out of Saskatchewan, with several terms, including that he stay within 100 km of his residence in Newfoundland, that he abide by a curfew between 11:00 p.m. and 7:00 a.m., and that he abstain from the use of alcohol.

The officer testified that he asked dispatch to contact the RCMP in Saskatchewan and find out whether they wished to have the warrant “extended”. Dispatch told the officer that the warrant indicated that it was radius Saskatchewan only, and CPIC contained no further information. Dispatch contacted the RCMP in Saskatchewan to enquire further into their intentions, and the result was they did not wish to “extend” their warrant.  The officer asked Mr. Marges about the outstanding warrant for his arrest out of Saskatchewan and Mr. Marges stated that it was for having weed in his possession about three years before.  Subsequent to this, the ASD had arrived, so the officer gave Mr. Marges the ASD demand and administered the ASD. This occurred approximately 21 minutes following the initial vehicle stop. A “Warn” reading was indicated, so the officer advised Mr. Marges that his driver’s license would be suspended for 24 hours and the vehicle would be impounded. The officer asked that Mr. Marges and the two passengers wait outside the vehicle while he completed the paperwork for the suspension and the impoundment. Mr. Marges believed that he was being detained at this time only for the purposes of waiting until the ASD-related paperwork was completed. While the officer was doing the paperwork for the suspension and the impoundment, he received a further call from dispatch indicating that the Saskatchewan RCMP had changed their minds and now wanted to have Mr. Marges arrested and held overnight. This information came about approximately 27 minutes after the initial vehicle stop.

The officer testified that he believed that he had grounds to arrest Mr. Marges based upon the information about the warrant relayed to him by dispatch after the contact with the Saskatchewan RCMP. He stated that he believed that the warrant to arrest Mr. Marges was in effect in the Yukon and that he had the jurisdiction to arrest and hold Mr. Marges on it. The officer provided Mr. Marges his right to counsel and police caution, and Mr. Marges stated that he would like to speak to a lawyer. During the drive back to the holding cell, the officer asked Mr. Marges some questions regarding the circumstances of the warrant and Mr. Marges told him it was in regard to 20 lbs of marihuana. Once back in the holding cells, the officer conducted a more thorough pat-down search of Mr. Marges and found three marihuana joints, 1 oz of cocaine in Mr. Marges’ jacket pocket, half an ounce of MDMA, a marihuana grinder, a cell phone, and $195.00 in cash. Mr. Marges told the officer that the jacket was not his.

Counsel for Mr. Marges argued that he was arbitrarily detained. The first prong of the argument was that there was a 15 – 21 minute delay between the time that the officer formed the suspicion Mr. Marges was operating a motor vehicle after consuming alcohol, and the demand being made. Mr. Marges was not free to leave the scene and was not told why he was being kept there. Section 254 of the Code requires that the ASD demand be made forthwith after a police officer has a reasonable suspicion that the operator of a motor vehicle has alcohol in his blood and a failure to comply with the forthwith requirement constituted an arbitrary detention. Defence counsel also argued that his arrest on an unendorsed warrant from Saskatchewan was unlawful as it was not in force within the Yukon and none of the grounds for a warrantless arrest set out in s. 495 of the Code were applicable. At most, defence counsel argued that the officer had the basis for an investigative detention of Mr. Marges while he took further steps to obtain additional information regarding the basis for the warrant and whether the Saskatchewan RCMP in fact intended to take the required steps to execute the warrant in the Yukon.

Crown counsel, on the other hand, submitted that the arrest of Mr. Marges was lawful, citing the provisions of s. 503 of the Code in support of this position, stating that it is implicit in this section that there is a power of arrest. In the alternative, Crown counsel submitted that the provisions of s. 495 authorized the arrest of Mr. Marges.

Defence counsel also submitted that the search of Mr. Marges in which the drugs were found was unlawful as it flowed directly from his unlawful arrest, and that that his s. 10(a) and (b) Charter rights were breached because he was not promptly informed of the reasons for his detention and he was not informed of the right to speak to legal counsel and/or provided the opportunity to do so without delay.

According to the Judge, with respect to the impaired driving investigation, it is clear in law that s. 254 of the Code requires that both the demand and the provision of the sample be made forthwith upon the officer forming the suspicion that the operator of a motor vehicle has alcohol in his system. While a delay in either making the demand or in administering the ASD may be justified, it must be reasonably necessary in the circumstances. In the present case, the primary reason for the initial delay in making the demand was the fact that the officer did not have an ASD in his police cruiser. After the ASD arrived, the subsequent delay in making the demand and administering the ASD was due primarily to the officer making inquiries into the Saskatchewan warrant. While there is an understandable pragmatic reason for this delay, said the Judge, the correct approach, at a minimum, would have been to comply with the forthwith requirements of s. 254(2) of the Code as soon as the other officer arrived with the ASD and not wait another 6 – 16 minutes before making the breath demand and obtaining the sample. Alternatively, as Mr. Marges was in possession of a cell phone, the officer could have made the demand at the outset of the investigative detention and then provided him the opportunity to contact counsel during the delay.

The Judge ruled that Mr. Marges should have been provided the ASD demand as soon as the officer had the grounds for making the demand as it is better that any delay arising out of not having the ASD immediately available occur between the giving of the demand and the taking of the breath sample than prior to the giving of the demand. The reason is that the detained person is made aware of the reason for his or her detention early in the investigation and then can make an informed decision about whether they wish to contact counsel while waiting. This right to contact counsel can be triggered when delay occurs, depending on the circumstances in which the delay occurs, said the Judge. Accordingly, the Judge found that the requirements of s. 254(2) were not complied with and constituted breaches of Mr. Marges s. 8 and s. 9 Charter rights. As well, Mr. Marges’ s. 10(a) and 10(b) rights were breached in the course of the investigation because Mr. Marges should have been advised of the reason for his detention and of his right to contact counsel. He also should have been provided a number for duty counsel. He had a cell phone, and this call could readily have been made from the roadside while the officer was waiting for the ASD and completing other inquiries.

As well, the Judge found that there was a third distinct breach of Mr. Marges’ s. 10(b) right to counsel, which occurred after his arrest. Although at the time of arrest, the officer properly advised Mr. Marges of his right to retain and instruct counsel and was going to facilitate that contact once they had arrived at the holding cells, he did not hold off questioning Mr. Marges between the time of his arrest and the time he was able to speak to counsel. This was a clear breach of Mr. Marges’ s. 10(b) right said the Judge.

On the arrest with the warrant analysis, the Judge said once a warrant is issued, s. 514 of the Code sets out how it may be executed:

(1) A warrant in accordance with this Part may be executed by arresting the accused

(a) wherever he is found within the territorial jurisdiction of the justice, judge or court by whom or by which the warrant was issued; or

(b) wherever he is found in Canada, in the case of fresh pursuit.

(2) A warrant in accordance with this Part may be executed by a person who is one of the peace officers to whom it is directed, whether or not the place in which the warrant is to be executed is within the territory for which the person is a peace officer.

 Where the accused is out of the territorial jurisdiction of the warrant, and where no peace officers from within the originating jurisdiction are involved in the execution of the warrant, s. 528 of the Code sets out a process whereby a warrant can be ‘endorsed’ in another territorial jurisdiction such that local police can execute it:

(1) Where a warrant for the arrest or committal of an accused, in any form set out in Part XXVIII in relation thereto, cannot be executed in accordance with section 514 or 703 [a section dealing with warrants issued by superior courts or courts of appeal], a justice within whose jurisdiction the accused is or is believed to be shall, on application and proof on oath or by affidavit of the signature of the justice who issued the warrant, authorize the arrest of the accused within his jurisdiction by making an endorsement, which may be in Form 28, on the warrant.

(1.1) A copy of an affidavit or warrant submitted by a means of telecommunication that produces a writing has the same probative force as the original for the purposes of subsection (1).

(2) An endorsement that is made up on a warrant pursuant to subsection (1) is sufficient authority to the peace officers to whom it was originally directed, and to all peace officers within the territorial jurisdiction of the justice by whom it is endorsed, to execute the warrant and to take the accused before the justice who issued the warrant or before any other justice for the same territorial division.

An arrest warrant for an accused that has not been endorsed (or ‘backed’) cannot be executed in a different territorial jurisdiction by local police. That was the situation that arose here; i.e. the arrest warrant for Mr. Marges was issued in Saskatchewan and had not been endorsed in Yukon. Therefore, it was clear that s. 495(1)(c) of the Code did not apply to these circumstances as the warrant had not been endorsed in the Yukon, and thus the arrest was made solely on the basis of the trafficking charges outstanding in Saskatchewan. Next, the Judge examined whether knowledge of the existence of an extra-territorial warrant for an indictable offence was sufficient to constitute reasonable grounds for an arrest per s. 495(1)(a) of the Code in this case. Essentially, said the Judge, all the officer knew when he arrested Mr. Marges was that there was an outstanding warrant in Saskatchewan relating to a charge of possession for the purpose of trafficking under s. 5(2) of the CDSA. He did not know, with certainty, what substance or in what quantity. The extent to which he may have relied upon Mr. Marges’ comments regarding “weed” could not provide him with the required certainty. The officer knew from dispatch that Mr. Marges was awaiting disposition on the charge, but he did not know with certainty that it was a Schedule I or II substance, he did not know whether the Crown had made a summary election, which would have been possible for certain drugs in certain amounts, and he did not know that the warrant also contained the allegation that Mr. Marges failed to appear in court, which is an indictable offence.  Accordingly, the Judge said it was incumbent on the officer to seek out additional information to satisfy himself that the offence that Mr. Marges was being sought on was indeed an indictable offence, and he failed to do so.

A peace officer can arrest someone for an extra-jurisdictional indictable offence. In that circumstance, the officer must take him or her before a justice in the officer’s territorial jurisdiction (s. 503(3)):

Where a person has been arrested without warrant for an indictable offence alleged to have been committed in Canada outside the territorial division to where the arrest took place, the person shall, within the time prescribed in paragraph (1)(a) or (b), be taken before a justice within whose jurisdiction the person was arrested unless, where the offence was alleged to have been committed within the province in which the person was arrested, the person was taken before a justice within whose jurisdiction the offence was alleged to have been committed, and the justice within whose jurisdiction the person was arrested.

However, said the Judge, s. 503 only applies when it is clear that the individual was indeed arrested for an indictable offence. This requirement tracks onto the warrantless arrest requirement in s. 495(1)(a), which is explicit about only applying to a person who there are reasonable grounds to believe has committed an indictable offence. In the case where an arresting officer has sufficient information to be satisfied that an extra-jurisdictional warrant is for an indictable offence, he can arrest prior to that warrant being backed, and in the event that the province or territory with jurisdiction over the offence does not wish to incur the costs of transport, the Code contemplates that the warrant will not be endorsed, the individual will be released, and the warrant will remain outstanding in the originating jurisdiction. Section 703(1) of the Code provides for warrants effective throughout Canada, provided they have been issued by the superior court or court of appeal, which was not the case here.

With all of this in mind, the Judge, therefore, found that Mr. Marges was the subject of an unlawful warrantless arrest as well. Although the officer knew that Mr. Marges was the subject of a warrant for possession for the purpose of trafficking extant in Saskatchewan, he did not have requisite reasonable grounds required by s. 495(1)(a) to believe that Mr. Marges had committed an indictable offence, as he did not have sufficient information to know that the offence was an indictable one, and by extension, the search of Mr. Marges at the holding cells was also unlawful.

*Note – Mr. Marges faced several breach of recognizance charges, two of which he entered guilty pleas to, and not argued in the voir dire.

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Filed under APA Cadets, Arbitrary Arrest or Detention, Impaired Driving, Section 10 Charter

Arrest based upon odour of marihuana from vehicle of passenger in the van violated s. 8 of the Charter and the evidence was excluded.

R. v. Beaudry, [2014] M.J. No. 79 – although this case has no binding effect, the principles discussed in it are of interest. Beaudry was a passenger in a cargo van which was pulled over as part of the annual Christmas check stop program. An officer of some 13 years attended to the vehicle and the driver rolled down his window, at which time the officer noted what he described as a “striking” and “instantaneous” smell of “raw” or un-smoked marihuana. Two occupants were in the front portion of the van, which was separated by a partition from the rear portion of the vehicle.

The officer testified that given the strength of the smell, he believed there to be a “rather large quantity of marihuana in that vehicle.” He testified that he was satisfied that “there was nobody in that vehicle that (a) didn’t have it on their person, or (b) wouldn’t have knowledge that that cannabis marihuana was inside that vehicle.” As a result, the officer immediately advised the occupants that they were under arrest for possession of marihuana. While he dealt with the driver, the officer called for assistance and directed another officer of 2 years to arrest Beaudry.

The junior officer asked Beaudry to step out of the vehicle, handcuffed him, and gave him a generalized overview of his rights. Beaudry, who was described as “cooperative and respectful”, was escorted to the rear of the cruiser car where the junior officer conducted a “methodical” search, looking at that time for “weapons and a means of escape”. As a result of the search, the junior officer located a cell phone, approximately $1000 in Canadian currency, and a clear Ziploc baggie in his upper right hand jacket pocket containing approximately 30 grams of marihuana. No weapons were located. Simultaneously to this, the senior officer dealt with the driver. A search of the driver’s jacket, which was located between the front seats of the van, located approximately 9 grams of marihuana in a jacket pocket. The driver was issued a promise to appear at the roadside and was released. Beaudry was transported to the detachment, where he was searched again, eventually being released on a promise to appear.

At trial, both counsel agreed that Beaudry was arrested for a summary conviction offence pursuant to section 4(4)(b) of the Controlled Drugs and Substances Act and as such, Criminal Code section 495(1)(b) applied (in order to arrest under this section, an officer must find a person “committing” an offence). In order for the arrest to be lawful, Crown counsel must establish on a balance of probabilities that the arresting officer subjectively believed that he had reasonable grounds to arrest the accused, and those grounds must be justifiable from an objective viewpoint. Judge Harvie of the Manitoba Provincial Court said there was no issue that the senior officer subjectively believed that he had reasonable grounds to arrest the accused. At issue was whether the totality of the circumstances objectively supported that conclusion, which was based exclusively on what he described as the strong odour he detected within the vehicle. The junior officer, who affected the arrest, relied on the instructions given to him by the senior officer.

Recognizing that evidence about “odours” is highly subjective, the authorities have paid careful attention to the circumstances under which this type of “evidence” is detected. In R. v. Polashek, 1999 CanLII 3714, 134 C.C.C. (3d) 187 (Ont.C.A.) Rosenberg J.A. discussed the application of principle described in American jurisprudence as the “plain smell doctrine” as it related to the arrest of the accused, the lone occupant in a vehicle which had been stopped for a Highway Traffic Act violation. The arresting officer detected a “strong odour” of marihuana, but could not tell whether it was burned or fresh. In responding to the argument that the presence in a vehicle of the odour of marihuana alone cannot provide reasonable grounds for arrest, Rosenberg, J.A. made the following comments:

I agree, in part, with the appellant’s position. Had Constable Ross based his arrest of the appellant solely on the presence of the odour I would have held that there were not reasonable and probable grounds to make the arrest. Given Constable Ross’ admission that he could not from the odour alone determine whether the marijuana had been smoked recently or even if he was detecting the smell of smoked marijuana, the presence of odour alone did not provide reasonable grounds to believe that the occupant was committing an offence. The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory, and thus largely incapable of objective verification. A smell will often leave no trace. As Doherty J.A. observed in R. v. Simpson, at p. 202: “… subjectively based assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee’s sex, colour, age, ethnic origin or sexual orientation.”

On the other hand, I would not go so far as was urged by the appellant that the presence of the smell of marijuana can never provide the requisite reasonable and probable grounds for an arrest. The circumstances under which the olfactory observation was made will determine the matter. It may be that some officers through experience or training can convince the trial judge that they possesses sufficient expertise that their opinion of present possession can be relied upon. Even in this case, the Crown adduced sufficient evidence from which the trial judge could reasonably conclude that Constable Ross accurately detected the odour of marijuana rather than some other substance.

Some distinction is drawn in the jurisprudence between situations in which a peace officer smells recently burned marihuana and those where the officer detects raw or un-smoked marihuana. This distinction is important when assessing whether an officer finds an accused “committing a criminal offence” and is therefore empowered to arrest pursuant to Criminal Code s. 495(1)(b). In R. v. Janvier (2008), 227 C.C.C. (3d) 294 the Saskatchewan Court of Appeal considered whether a strong smell of burned marihuana provided grounds for the arrest of a sole occupant of a vehicle. The accused had been stopped for a broken headlight. When the patrol officer was within a meter of the truck, he noted the very strong smell of burned marihuana, causing him to conclude that someone had smoked marihuana in the truck within the previous 20 minutes. The trial judge concluded that the odour alone did not provide the necessary grounds for arrest.

Jackson J.A. in Janvier conducted a lengthy review of the case law related to the powers of arrest conferred by Criminal Code s. 495(1)(b) where the arrest is based on the smell of burned marihuana. The Court also considered the alternate argument that the smell of recently burned marihuana provides objectively reasonable grounds to believe that un-smoked marihuana would be present. The Court referenced R. v. Huebschwerlen (1997), 10 C.R. (5th) 121 (Whitehorse Terr. Ct.) at paras. 19-20 in which Chief Judge Lilles reviewed numerous authorities, concluding that, for the most part, the courts have been reluctant to find reasonable grounds based on the smell of burned marihuana alone. Chief Judge Lilles summarized his conclusions regarding the jurisprudence:

19 As the above cases indicate, courts have been reluctant to find reasonable and probable grounds based on the presence of burnt marihuana odour alone, unless it is established, as in Guberman (1985), 23 C.C.C. (3d) 406], that the smell was fresh, recent and very strong. More often, other observations are made in conjunction with the odour, such as evidence of some other offence justifying arrest (open liquor), physical observations of drug impairment, some marihuana in the vehicle, or an admission by the accused that he/she had been using drugs earlier in the evening.

20 A detailed and most helpful analysis of the relevant considerations in such cases is found in the American case of People v. Hilber (1978) 269 N.W.2d 159 (U.S. Mich. S.C. 1978). The following points have been summarized from that decision.

  1. A distinction is to be made between the odour of unburned and burned marihuana. The former indicates the actual presence of marihuana, while the odour of burned marihuana indicates only that at some time in the past marihuana was present and burned.
  2. Reliance on the smell of burnt marihuana as the basis for reasonable and probable grounds relies on several inferences:
  • that the odour in the vehicle was caused by the driver/occupant having smoked marihuana
  • that marihuana smokers, like tobacco smokers, carry a supply with them

But we know that other odours in vehicles, such as tobacco, beer, spoiled food, etc. are often caused by someone other than the driver/occupant at the time the odour is detected. And there is no reason to believe that tobacco smokers and their behaviours provide standards from which to judge marihuana smokers. Because of the multiple inferences involved, it is not reasonable to infer that an occupant of a motor vehicle either smoked marihuana or has it in his/her possession, solely from a residual odour of marihuana in a motor vehicle. [Emphasis added.]

Jackson J.A. in Janvier noted “that it is not reasonable to infer that an occupant of a motor vehicle having smoked marihuana would have more in his or her possession” and that since his decision, “almost all of the reported decisions have concluded, as he did, that the smell of burned marihuana alone does not provide an objective basis for a reasonable belief that there is more marihuana present.”

In R. v. Harding 2010 ABCA 180, the Alberta Court of Appeal considered the role of “odour” in the conviction of the accused for possession for the purpose of trafficking. The accused was the sole occupant of vehicle which was pulled over because the licence plate and registration tag were obscured by mud. The officer, who had considerable experience dealing with marihuana, detected a strong odour of “raw” marihuana, conducted some further investigation, and placed the accused under arrest. It was agreed that other factors identified by the officer were merely suspicions, and that the strong odour was the only objective factor to be considered. The Court drew a distinction between those cases involving burnt marihuana and concluded (at para 29):

Here, Sgt. Topham smelled the very strong odour of raw marijuana, not burnt marijuana. The smell of raw marijuana, given Sgt. Topham’s experience with marijuana, constituted the observation that a crime, namely, possession of marijuana, was being committed. No inference was necessary. The possession of marijuana was not a past event and the officer did not need to infer that he could find more marijuana by searching the appellant or his vehicle. The smell of raw marijuana alone was sufficient to conclude that the appellant was at that time in possession of marijuana.

The Court did go on to note that while the smell of raw marihuana could provide sufficient grounds for arrest, such a conclusion would depend on the officer’s experience. In Harding, supra, the trial judge described the arresting officer as having a “great deal of experience” with a “well trained nose.” Similar comments were made in R. v. Meyers, [2012] B.C.J. No. 374; 284 C.C.C.(3d) 248 (B.C.Prov.Ct.); R. v. Burgess, [2009] B.C.J. 449 (B.C. Prov.Ct.); R. v. Costain, [2010] B.C.J. No. 1268 (B.C. Prov.Ct); R. v. Ashby (2011), BCSC 513 (CanLII).

The smell of un-smoked marihuana, along with other factors, provided sufficient grounds for arrest in R. v. Yaremus, 2008 ABPC 322 (CanLII). In that case, both investigating officers, who were consider very experienced, testified as to the distinctive odour of both fresh and burned marihuana which was emanating from a vehicle stopped in a known drug trafficking location.

Judge Harvie in this case said the case law is clear that while the smell of “raw” or “un-smoked” marihuana can provide a foundation for an arrest, given the highly subjective nature of this evidence, the experience of the arresting officer and the totality of the circumstances must be carefully considered.

The senior officer had experience dealing with marihuana, specifically having been involved with a special operation where he had picked “thousands” of plants for destruction. While on highway patrol, he testified to having encountered vehicles with both smoked and un-smoked marihuana. The junior officer confirmed that as part of his training, he handled fresh marihuana and had taken a course on the transport of illicit substances. He was called over to assist the senior officer, and was immediately instructed to arrest Beaudry, who showed no signs of intoxication or otherwise having been under the influence of drugs. While the passenger vehicle window was up, the junior officer testified that he attended to the passenger side of the vehicle where he requested that Beaudry remove himself from the vehicle, placing him under arrest. At no time did he note a smell of marihuana, either from the vehicle or from the accused. Judge Harvie said this was significant given that the bulk of the marihuana located in the vehicle was ultimately found in Beaudry’s jacket, albeit sealed within a Ziploc baggie.

Judge Harvie said given that the smell of marihuana provided the sole basis for the arrest of the driver and Beaudry, the evidence in this regard required careful scrutiny and the cautionary words of the Ontario Court of Appeal in Polashek, supra, bear repeating:

“The sense of smell is highly subjective and to authorize an arrest solely on that basis puts an unreviewable discretion in the hands of the officer. By their nature, smells are transitory, and thus largely incapable of objective verification.”

In this case, said the judge, the verification of what the senior officer described as an “overwhelming” smell by his partner was surprisingly absent. While possessing less experience than his partner, the junior officer did attest to being familiar with marihuana and its unique odour, so even recognizing that the passenger window was up, it seemed likely that an odour as “overwhelming” as the one purportedly detected by the senior officer would have been easily detected when Beaudry exited the vehicle. The judge said that the senior officer was certainly of that view, testifying that he didn’t attend to the passenger side of the vehicle because “Whether I was on the driver’s side of that vehicle or the passenger side of the vehicle is inconsequential, the odour would have been the same whether I was on the driver’s side or the passenger side.” The Court was then left with a question as to whether the smell emanating from the vehicle was as strong as was suggested by the senior officer, and by extension, whether it was strong enough, standing alone, to provide reasonable grounds to believe that an offence was being committed.

Judge Harvie, for her own reasons, said the Crown must only establish on a balance of probabilities that the officers had reasonable grounds to arrest, and that those grounds are justified from an objective point of view. Given that the officers clearly stated that they arrested the accused, an examination of the issues related to the powers of “investigative detention” might seem at first blush to be unnecessary. However, given the officers’ evidence in this area, some comment was required according to the judge.  To summarize, Judge Harvie said there was a lack of clarity on the part of the officers’ testimony with respect to the powers of arrest versus the powers of detention and was important when objectively considering whether the officers had the requisite grounds to arrest Beaudy. The officers appeared to view the power of arrest to essentially be interchangeable with the power to detain for investigative purposes, and a reliance on the “practice” of arresting a suspect lead to the concern that the officers did not give proper attention and weight to the need for “reasonable grounds”. This must all be considered when weighing the officers’ clearly articulated views that they had the authority to “arrest” the driver and Beaudry based on the odour that only the senior officer detected.

The Judge said the senior officer did not provide any information to the junior officer about the basis for his conclusion that two occupants should be arrested. This must be assessed when considering that the junior officer Constable did not make any observations on his own which would provide grounds to arrest Beaudry, and that he seemed to consider that the simple fact that this was a “drug related stop” conferred upon him the power to arrest Beaudy.

The crown must establish on a balance of probabilities that the arresting officer subjectively believed that an offence was being committed, therefore giving them reasonable grounds to arrest the accused, said the judge. Those grounds must be objectively reasonable. The senior officer, an officer with experience in drug investigations, relied exclusively on the smell of raw marihuana coming from the vehicle. Despite describing this smell as “overwhelming”, it was not noted by the junior officer, who actually arrested the accused.  According to Judge Harvie, a further complicating factor was the lack of clarity from both officers as to the fine but important distinction between circumstances in which an accused can be arrested versus those circumstances which would support only an investigative detention.

Given the unique, subjective and highly transitory nature of “smells” as a basis for arrest, special attention must be paid to this type of evidence. Taking all of the circumstances into consideration, Judge Harvie was not satisfied that the evidence in this case objectively supported the arrest of the accused. While the senior officer had previous experience in dealing with marihuana, his evidence on this important point was not supported by the junior officer, who while less experienced than his partner, was in a position to have noted the smell. Judge Harvie was satisfied that the accused’s arrest was not lawful and that he was searched in violation of section 8 of the Charter.

Applying the analysis as set out in Grant, Judge Harvie considered the officers’ Charter-infringing conduct to be serious. The lack of consistency between the officers, the complete lack of any further investigative steps, coupled with a serious lack of understanding related to the powers of arrest raised serious concerns. The Judge further considered that the impact on the accused was significant and more than technical. While the drugs sought to be introduced represented real and reliable evidence, that consideration cannot be seen to trump the first two prongs of the test. Taking all of the forgoing into account, Judge Harvie concluded that the evidence in question should be excluded pursuant to the Charter, section 24(2).

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A Review – ASD, Reasonable Suspicion, Waiting for a Tow Truck

A couple of recent impaired driving cases have prompted a review of some of the basics for the new and junior members in the field.  I will not go into alot of background or details of each case, but rather the necessary points to be taken from the cases.  Impaired driving offences are very complex, so this review will only touch on some of the issues and is by no means exhaustive.

R. v. Wetzel 2013 SKCA 143 – police issued a breath sample demand. The officers waited with the accused for 35 minutes for a tow truck to arrive and an additional 12 minutes until the vehicle was towed. The breath samples were not taken until between one and one-half and two hours following the demand. The results indicated an illegal blood-alcohol level. The accused was charged accordingly.  SKCA upheld that the samples were not taken as soon as practicable and acquitted the accused.  The SKCA said that it is clear that a delay caused by waiting for a tow truck does not necessarily create a situation where the sample is not taken as soon as practicable: R. v. Berrecloth, 2012 SKQB 175; R. v. Dion, 2010 SKPC 76; R. v. Litzenberger, 2009 BCPC 69; R. v. Plonka, 2008 BCSC 881; R. v. Ritson, 2008 BCPC 26; R. v. Godin, 2007 ABPC 162; R. v. Otto, 2000 CarswellOnt 1864 (Ont. Sup. Ct. J.); R. v. Hafermehl (1993), 50 M.V.R. (2d) 78 (Alta. C.A.).  In cases where the officer has reasonable grounds to believe that the parked vehicle poses a safety hazard, obstruction to traffic, etc, towing the vehicle may be justified, but a blanket policy of towing every vehicle for a suspected impaired driving charge or an officer’s personal preference to do so is not lawful and not reasonable according to the SKCA and could result in breath tests not being taken as soon as practicable.

R. v. O’Shea 2013 ONCJ 710 – one officer stopped the accused for speeding and prior to the police stop, when the accused stopped at a traffic light, the car did not stop right away and went one car length beyond the intersection.  The accused had to look through her wallet three times before locating her driver’s licence and the officer asked her how many drinks she had “tonight.” She said she had two glasses of wine.  At that time, the officer formed a reasonable suspicion that she had alcohol in her body and decided to have her submit to a roadside screening test. He testified that his reasonable suspicion was based on the speeding at the intersection and the admission of the consumption of alcohol. The officer stated the accused had no motor skill problems, no slurred speech, and no odour of alcohol on her breath.

Not having a testing device with him, the officer requested one over the police radio. Two officers arrived moments later and at this point in time, the officer turned the investigation over to these two officers because he was acting as a road supervisor and his services were needed elsewhere.  The officer that read the demand was a junior member (6 months service) and on the day of the alleged offence, he told the qualified breath technician that his grounds for making the demand were that the suspect was operating a motor vehicle at a high rate of speed and an odour of alcohol was detected.  This was also stated in a pre-printed form given to the breath technician.

R. v. Padavattan (2007) O.J.  No. 2003:

“The clear language of the statute requires that the officer making a demand under s. 254(2) of the Code must have formed the reasonable suspicion and must also form an opinion as to the sufficiency of the breath samples provided. As well, an officer who makes the demand may require the subject to accompany him for the purpose of the test. However, where these requirements are satisfied, there is nothing in the language of s. 254(2), that expressly or by implication precludes the ASD test being administered by another officer. Nor is there any requirement that this other officer form the reasonable suspicion before administering the ASD test.”

The ONCJ said that in law, the reasonable suspicion did not have to be formed by the officer reading the demand from his own observations.  As in R. v. Nahorniak (2010), 256 C.C.C. (3d) 147 (Sask. C.A.):

These cases illustrate that reasonable suspicion can be achieved either by the officer’s personal knowledge and observation or the communicated observations of others or a combination of both. This is so even where the officer making the demand cannot precisely articulate the information conveyed to him but there is nevertheless other testimony or evidence of what was conveyed.

It is not necessary for an officer to independently investigate and verify grounds of reasonable suspicion conveyed to him as long as he subjectively believes them. For Knowles specifically, it was enough that he knew the grounds and believed them at the time he made the demand and his belief was objectively and subjectively reasonable. In this case, Knowles testified he relied on McStay’s grounds but also relied on his own observations to form his reasonable suspicion. Knowles stated three reasons to suspect Nahorniak had alcohol in his body. He assumed that McStay had proper grounds and made the demand because McStay asked him to. He relied on what McStay told him. Finally, he independently smelled alcohol coming from Nahorniak. Although it would have been preferable for Knowles to articulate the grounds McStay told him, his failure to do so was not fatal because McStay was able to articulate the details of what was conveyed.

When cross-examined, the officer that read the demand agreed that his notes were not detailed. He agreed that it was possible that he was directed to make the screening device demand. It was also possible he said that the suspicion that the defendant had alcohol in her body may have been passed onto him. He did not recall speaking to the defendant before making the screening device demand. He said he was directed by his coach officer to make the screening device demand. He also testified that the defendant had no slurred speech, her eyes were not red or bloodshot, and that he could detect no odour of alcohol on her breath.

The ONCJ ruled that a finding of guilt can only be founded upon evidence which a court can rely upon, and the evidence of the officer was internally contradictory and very unreliable and therefore found that the Charter breach was serious, thus finding the accused not guilty of the matter before the court.

Lesson to be gained:  reasonable suspicion for the ASD can be achieved either by the officer’s personal knowledge and observation or the communicated observations of others or a combination of both as long as that officer subjectively believes this information.  Make sure to take alot of detailed notes and be consistent with your grounds at the time of the offence and with your testimony in court.  If your grounds came from another officer and you subjectively believed this, say so.  “Source” where the information came from that you formed your reasonable grounds to suspect for the ASD and ensure your facts are consistent with what was relayed to you by fellow officers at the time and your testimony in court.  We cannot make the demand only because we are directed to do so; we must form any opinion on whether there is a legal basis to make a demand for a sample, pursuant to section 254(2) of the Criminal Code.

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