R. v. Hodder, 2012 ABQB 133

Court of Queen ’ s Bench of Alberta Citation: R. v. Hodder, 2012 ABQB 133 Date: 20120229 Docket: 101004240S1 Registry: Ft. McMurray Between: Her Majesty the Queen Crown - and - Colleen Hodder Defendant _______________________________________________________ Reasons for Voir Dire of the Honourable Mr. Justice W. A. Tilleman _______________________________________________________ Introduction [ 1 ] The accused is charged as follows: That she, on or about the 19 th day of June, 2010, at or near Fort McMurray, Alberta did operate a motor vehicle in a manner that was dangerous to the public, contrary to section 249(1) (

a) of the Criminal Code of Canada . That she, on or about the 19 th day of June, 2010, at or near Fort McMurray, Alberta while her ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle, contrary to section 253(1) (

a) of the Criminal Code of Canada .

That she, on or about the 19 th day of June, 2010, at or near Fort McMurray, Alberta did without reasonable excuse, fail or refuse to comply with a demand made to her by a peace officer or evaluating officer pursuant to

section 254 of the Criminal Code , and at the time knew or ought to have known that her operation of the motor vehicle caused an accident that resulted in bodily harm to another person, contrary to section 255(2.2) of the Criminal Code of Canada . [ 2 ] My ruling on the voir dire arises from the accused’s challenge that Cst. (now Corporal) Horwood did not have reasonable and probable grounds to make the blood demand, contrary to the accused’s

section 8 Charter rights. If the blood demand was not based on such grounds, the Crown concedes that it would be a serious breach under section 24(2) of the Charter and evidence of the accused’s refusal should not then be admitted. Facts [ 3 ] I will only set out the facts necessary to deal with voir dire issues and this decision’s reach is accordingly restricted to those issues. [ 4 ] The allegations are that late on the evening of June 19, 2010, Ms. Hodder drove a car dangerously in a residential area of Fort McMurray.

As a result, her car collided with parked cars on the street leaving property damage and causing some minor personal injuries to herself. [ 5 ] After being taken to hospital, the investigating officer, Cst. Horwood, made a blood demand which was the accused refused. Cst. Horwood then “ Chartered ” and arrested the accused. As a result of these events, Ms. Hodder was charged with the offences listed above and released a couple of hours later on a promise to appear. [ 6 ] The key question at issue here is the lawfulness of the blood demand (not the timing). [1] Cst.

Horwoods’s relevant voir dire evidence is as follows: • she arrived in her marked car within minutes of reports of an erratic driver that had collided with parked vehicles; [2] • she tried to talk to bystanders to assess the situation; [3] and, • she took a few photos. [4] And then very shortly [5] thereafter: • she was instructed by the RCMP scene supervisor to enter the ambulance with the accused (who she assumed was the driver) and EMTs; [6] • she sat in the ambulance very close to the accused (between her knees and feet); [7] • she overheard the accused’s cell phone calls, likely to her boyfriend with whom she was very angry; [8]

• she saw Ms. Hodder become vulgar and belligerent; [9] and • she stated one of the EMTs told her that Ms. Hodder had consumed two beers. [10] [ 7 ] It was by “...gaining[ing] [this] knowledge...” that Cst. Horwood ultimately formed her opinion that Ms. Hodder was impaired. [11] In her own words, Cst. Horwood explained how her initial investigation later turned into grounds for the opinion of impairment. She said: [12] Q And did you examine the vehicle that was involved in causing the collision? A Yes, I did. Q And anything that you observed there? A There was substantial front end damage.

Inside there were, like, ID's, like her -- her pass and stuff like that, for work, there was no indication of any alcohol in there, no, like, empty bottles or full bottles or anything like that. Q M-hm. A Just normal, like, paperwork and so forth in there, nothing -- nothing out of the ordinary or anything, but substantial damage to the vehicle as a result of collisions. Q And with respect to the smell of anything in the vehicle, inside the vehicle? A I never smelt anything there. Q M-hm. I interrupted you, so back at -- at [EMT] Cory Thatcher had provided you with that information; correct? A Correct, yeah.

Q And at that time, what did you think you were investigating at that point? A An impaired. Q And what time did you form that opinion? A Then, I definitely had an opinion that she had probably -- or that she had consumed too much alcohol, given the circumstances of the collision that took place and her admitting to paramedics that she had consumed, that we were investigating an impaired. Arguments [ 8 ] The accused is charged inter alia with impaired operation of a motor vehicle. More specifically for this voir dire, the Crown is proceeding under s. 254(5) based on the failure of the accused to comply with Cst.

Horwood’s blood demand. Sections 254(3) and (5) state:

Samples of breath or blood

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood, or (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable ofproviding a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of thequalified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine theconcentration, if any, of alcohol in the person’s blood; and ... Failure or refusal to comply with demand

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section. [9] The Crown argues that showing the existence of reasonable grounds as set out in s. 254(3) is not an onerous standard.Quoting R. v. Shepherd, 2009 SCC 35 at para. 23, the Crown points out that: ...[T]he officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offence ofimpaired driving... before making the demand.

He need not demonstrate a prima facie case for conviction before pursuing hisinvestigation. [10] Similarly, evidence of impairment need only be made out to a slight degree: R. v. Stellato (1993), (ONCA), 12 O.R. (3d) 90 (C.A.), aff’d (SCC), [1994] 2 S.C.R. 478. [11] To determine whether reasonable and probable grounds exist, the legal test is both subjective and objective.

In R. v.Bernshaw, (SCC), [1995] 1 S.C.R. 254 the Supreme Court noted: [Section] 254(3) of the Code requires that the police officer subjectively have an honest belief that the suspect has committed the offenceand objectively there must exist reasonable grounds for this belief...[para. 48] ... The decision as to whether a peace officer believes on reasonable and probable grounds that an offence is being committed and,therefore, that a demand is authorized under s. 254(3) of the Criminal Code, R.S.C., 1985, c. C-46, must be based on the circumstancesof the case.

It is, therefore, essentially a question of fact and not one of pure law. [para. 46]

[12] Further to this inquiry, the Court must consider the following:[13] When determining objectively if reasonable grounds exist the Court must weigh the grounds that the officer understood to be present. Inthis regard the court in R. v. Archibald, [2009] A.J. No.116 at para. 13 commented: It is not an objective test in the sense that the Court looks over the shoulder of the officer to see whether or not the circumstances asunderstood by them were factual.

But, manifestly, the statute intended that the Court weigh the grounds that the officer understood to bepresent; weigh them on the test of reasonableness and probability. In assessing whether the peace officer's belief at the time was objectively reasonable the court must look at the evidence available to theofficer as a whole. In R. v. Huddle (1989), 1989 ABCA 318 , 21 M.V.R. (2d) 150 (Alta. C.A.), the court held, at p. 152: In our view, it is an error in law to test individual pieces of evidence which are offered to establish the existence of reasonable andprobable grounds.

That is similar to the approach which the Supreme Court of Canada condemned in R. v. Morin, (SCC),[1988] 2 S.C.R. 345, 66 C.R. (3d) 1, 88 N.R. 161, 30 a.A.C. 81, 44 C.C.C. (3d) 193. True, the smell of alcohol alone does not showimpairment; slurred speech alone does not show impairment by alcohol; glassy eyes may be associated with crying; but the question iswhether the total of the evidence offered provided reasonable and proper grounds, on an objective standard. We say that because no issueof subjective belief arises here. [13] On this point the Crown also citied R. v.

Rhyason, 2007 SCC 39, in which the Supreme Court found that an accident with noexplanation or other related evidence was enough to show that a demand by police was properly made. In that case the majority of theCourt stated at paras. 18 and 19: The trial judge found the accident to be significant, noting that “[i]f Constable Stevens had merely detected signs of alcohol consumptionin the absence of an accident, there may have been a valid argument to the effect that evidence of alcohol consumption does not itselfconstitute evidence of impairment” (para. 25 M.V.R.).

As the trial judge observed, there is abundant jurisprudence confirming that thecircumstances of an accident can be taken into account, along with other evidence, in determining whether an officer had reasonable andprobable grounds to arrest an individual for impaired driving. (See, for example, R. v. Eliuk 2002 ABCA 85 , (2002), 299 A.R.364, 2002 ABCA 85, at para. 12; R. v. Pedersen 2004 BCCA 64 , (2004), 193 B.C.A.C. 206, 2004 BCCA 64, at para. 30; R. v. Turner (2004), 1 M.V.R. (5th) 191 (Ont. C.J.), at para. 8; and R. v.

Gairdner (1999), 40 M.V.R. (3d) 133 (B.C.S.C.), at para. 15.) This is not to suggest that consumption plus an unexplained accident always generates reasonable and probable grounds or, conversely,that it never does. What is important is that determining whether there are reasonable and probable grounds is a fact-based exercisedependent upon the circumstances of the case.

In this case, the presence of an unexplained accident was one factor that the trial judgeappropriately took into consideration when determining that those grounds existed. [14] Accordingly, an evaluation of whether reasonable grounds exist may require a court to take into account the circumstances ofan accident in considering the objective test, including any indicia of impairment: R. v. Watson, 2010 BCCA 270. Even whereindications of impairment are not as strong as in other cases, the indicia relied on by an officer may still be enough to satisfy the legaltest: R. v.

Harvey, 2009 MBQB 57 at para. 16. [15] The Crown argued that in the present case the officer had reasonable grounds to demand a blood sample from the accusedbased on the circumstances of the situation. The Crown also maintains that the demand for the blood sample was also made as soon aspracticable. [16] In support of their assertion, the Crown noted that in certain circumstances it is impractical to demand a breath or bloodsample despite the observation of signs of impairment.

Where a police officer has formed an opinion that an individual was driving whileimpaired based on an unexplained accident along with other signs of impairment, if the individual requires medical treatment a demandfor a breath sample forthwith may not be practicable: R. v. McConnell, 2008 BCSC 505. Based on this principle, the Crown contendsthat the injuries to the accused in this case were such that the demand for a blood sample by Cst. Horwood was made as soon aspracticable, once the accused had been taken to hospital by ambulance.

[17] The Defence no longer challenges the timing of the demand. The Defence responded to the Crown’s arguments by noting thata reviewing court must look at the totality of the circumstances in a specific case and refrain from testing each piece of evidenceindividually to determine if there was in fact reasonable grounds for a demand: R. v. Huddle (1989), 1989 ABCA 318 , 102A.R. 144 (C.A.).

The Defence therefore argues that based on the circumstances of the case when considered in their totality, Cst.Horwood did not have reasonable and probable grounds to make the blood demand from the accused. [18] According to the Defence the assessment of reasonable and probable grounds must be based on facts known to an officer oravailable to that officer at the time he or she formed the requisite belief: R. v. Oduneye (1995), 1995 ABCA 295 , 169 A.R. 353(C.A.). As such, the Defence argued that Cst.

Horwood did not have a subjective belief that the accused’s ability to drive was impairedby alcohol, and even if she did it was not objectively reasonable in the circumstances as a whole. [19] Finally, the Defence argued that the demand for a breath or blood sample must be made by the police officer who formed thebelief on reasonable and probable grounds that an individual committed an offence: R. v. Pavel, (ON CA), 53 C.C.C. (3d) 296 (ON.C.A.) at para. 44.[14] In this case they argue there was not enough evidence to support Cst.

Horwood’s opinion, andtherefore the evidence of the blood demand should not be admitted at trial. Analysis [20] When applying the law to the facts, the Crown and Defence came to opposite conclusions. The Crown stated Cst. Horwoodsubjectively believed the accused was impaired, because of Ms. Hodder’s: - unexplained collision into parked cars; - admitting to having consumed alcohol; and - belligerence and unco-operative behaviour. [21] Based on the totality of evidence then known to attending officer Cst.

Horwood, the Crown also submits the objectivestandard is met. [22] The Defence disagrees, arguing, inter alia, Cst. Horwood never observed the accused driving; did not smell alcohol on her;did not observe other indications of impairment; relied on another officer to inform her of the “two beers” the accused was purported tohave consumed; and only attended with the accused in the ambulance because her superior instructed her to do so on his belief theaccused drank some alcohol (I note Cst.

Horwood’s supervisor referred to information about two “beers”, however, I also note the evidence of EMT McPherson who said the accused may have had an alcohol odour on her body but did not know where it was from.[15]) [23] Perhaps informing his belief, Cst. Horwood’s supervisor, Cpl. Wagner, also spoke with and received information from Cpl.Gibbs, an accident reconstructionist. Cpl. Wagner discussed the series of events with Gibbs, after which they talked about theimpairment issue.

As it turns out, however, Gibbs did not attend the scene to reach his conclusion that grounds for the blood demand existed.[16] [24] On impairment, the Alberta Court of Appeal set out certain principles that are helpful: R. v. Andrews (1996), 1996 ABCA 23, 178 A.R. 182 (C.A.). They are (at para. 31): 1) the onus of proof that the ability to drive is impaired to some degree by alcohol or a drug is proof beyond a reasonable doubt;

2) there must be impairment of the ability to drive of the individual; 3) that the impairment of the ability to drive must be caused by the consumption of alcohol or a drug; 4) that the impairment of the ability to drive by alcohol or drugs need not be to a marked degree; and 5) proof can take many forms. Where it is necessary to prove impairment of ability to drive by observation of the accused and hisconduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof bemet.

To that extent the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessingthe evidence and arriving at the required standard of proof that the ability to drive is actually impaired. [emphasis in original] [25] And on the subjective and objective tests, Rhyason at para. 12, states: As explained by this Court in R. v.

Bernshaw, (SCC), [1995] 1 S.C.R. 254, the test for reasonable and probablegrounds has both a subjective and objective component: [Section] 254(3) of the Code requires that the police officer subjectively have an honest belief that the suspect has committed the offenceand objectively there must exist reasonable grounds for this belief ....[para. 48] ... The decision as to whether a peace officer believes on reasonable and probable grounds that an offence is being committed and,therefore, that a demand is authorized under s. 254(3) of the Criminal Code, R.S.C., 1985, c.

C-46, must be based on the circumstancesof the case. It is, therefore, essentially a question of fact and not one of pure law. [para. 46] [26] For the timing of when the belief is formed, our Court of Appeal has said “[i]t is clear from the cases, that the question of theexistence of reasonable and probable grounds must be based on facts known by or available to the police office at the time he formed therequisite belief”: R. v. McClelland, 1995 ABCA 199 , 165 A.R. 332 (C.A.) at para. 21. [emphasis added] [27] So, what did Cst. Horwood know at that critical time at the time she formed the requisite belief?

I find the following: 1) On June 19, 2010 she arrived on scene at Parsons Creek Drive in Fort McMurray, after the 10:55 p.m. dispatch of an erratic driver. 2) She noticed damage to thee parked cars. 3) She saw a heavily damaged Pontiac Grand Am in the middle of the road facing the opposite direction from which it came.[17] 4) She took some photos of the scene. 5) She spoke to some witnesses.

6) She was not at the scene for very long. [18] 7) Cpl. Wagner told or ordered her to ride with the accused in the ambulance. 8) She thought that the person in the ambulance was the driver based on an inference. [19] 9) While in the ambulance, according to Cst. Horwood EMT Thatcher told her the accused said she drank two beers. [20] 10) In the ambulance and later at the hospital, the accused was vulgar, telling the EMTs to “shut the f... up” and later calling the nurses “bitches” and telling Cst.

Horwood (after the blood demand) “...shut the ‘F’ up, bitch, you’re not getting blood.” [21] [ 28 ] On the basis of the facts as they unfolded, Cst. Horwood’s belief seems to be subjectively defensible. She observed damage to several parked cars, as well as damage to a Pontiac Grand Am which was facing the opposite direction from which it had come, likely as a result of the impact with the parked vehicles. Cst. Horwood also testified that she was told by EMT Thatcher that the accused had consumed two beer, as well as by her supervisor, Cpl. Wagner. Taken together, these facts suggest Cst.

Horwood may have subjectively believed the accused had been driving while impaired. [ 29 ] That noted, it is unclear whether Cst. Horwood’s belief was subjectively honest , as per Bernshaw . The Crown’s key witness, EMT Thatcher, who I find reliable and who I believe, treated the accused and denied telling either Cst. Horwood or anyone else anything about alcohol. When asked about what he told Cst. Horwood or other RCMP officers, he responded as follows: [22] Q Would -- would you provide them information about information you’d obtained of the patient? A Such as?

Q Any of the answers you got from the questions you had asked? A No. That’s confidential. Q In terms of intoxication? A I’m not allowed to do that. Q In terms of consumption of alcohol? A No. Q Did you have any conversation with - - I believe you said there was an RCMP officer in the ambulance with you? A That’s correct. She rode to the hospital with us. Q Okay. Did you have a conversation with her at that time during the-- the ride? A I spoke to her briefly. I don’t remember the extent of that conversation.

Q Okay. Did you have any conversations with any other officers in regards to consumption of alcohol, on the scene? A No. [ 30 ] Keeping in mind this discrepancy in the evidence, I am left with the problem of determining whether Cst. Horwood’s subjective belief was reasonably held. The objective part of the test goes beyond the disputed evidence, requiring reasonable grounds for the subjective belief. [ 31 ] We know Cst. Horwood got into the ambulance with the accused because she was told to by her supervisor, Cpl. Wagner.

We also know that EMT McPherson asked an officer at the scene if someone would accompany the accused in the ambulance – something that might not have occurred otherwise. [23] I accept the evidence given by Cpl. Wagner explaining why he directed Cst. Horwood to ride with the accused, regardless of whether it was hearsay. I note again, however, that his evidence is not without weakness. [24] [ 32 ] The dominant concern with the evidence arises as it relates to the objective test. Cst.

Horwood does not appear to have formed the necessary grounds when she got in the ambulance and she left the ambulance with much of the same information she had coming into it. Put another way, there is no evidence Cst. Horwood would have pursued the impairment issues in the absence of what the EMT told her, because she (Cst. Horwood):

a) Saw no alcohol in the accused’s car;

b) Smelled no alcohol in the accused’s car;

c) Never even saw the accused until she met her in the ambulance; [25] And, once in the ambulance with the accused, Cst. Horwood:

d) Did not smell alcohol on the Defendant even though she (Cst. Horwood) was riding within a metre of her head in the confined ambulance for 12 minutes; and ,

e) Only firmed up her grounds for the breath demand or blood demand once EMT Thatcher, who attended in the ambulance, told her what the accused told him. [ 33 ] I have conducted the Rhyason fact-based exercise. In doing this, I agree with the Crown that to form sufficient grounds in these cases: (

a) there is no need to establish a prima facie case, [26] (

b) hearsay and civilian statements can be used, [27] and, (

c) that the whole of the police case including fellow officer information can be used. [28] I nevertheless conclude that all Cst. Horwood knew at the time she formed reasonable grounds was the occurrence of an accident plus a suspicion from what her supervisor told her, and then (ignoring for a moment the fact that it was confused or denied) the exact same “two beers” statement by the EMT. That did not give Cst. Horwood anything more than what she entered the ambulance with as per Cpl. Wagner.

I also acknowledge the arguing between the accused and a person who was likely her boyfriend on the phone, which I discuss below. [ 34 ] No one was in the damaged car so the Constable did not know who was driving; Cst. Horwood neither saw nor smelled any indicia of alcohol on the accused nor in her car, [29] nor did she find other typical common-law indicia of impairment on the accused such as blood-shot eyes, slow or blurred speech, etcetera. Cst.

Horwood was also with the accused for only 12-minutes while the ambulance drove to the hospital, and during that time there was no evidence that she asked the accused: (

a) if she was the driver of the Pontiac Grand Am, or (

b) if she had in fact consumed any alcohol that night. There was also no evidence to suggest that Cst. Horwood attempted to confirm this information once they had reached the hospital before she made her demand.

[ 35 ] Cst. Horwood entered the ambulance with a suspicion due to her brief presence on the scene, but she entered the ambulance largely, if not completely, because of her superior’s instructions to her, [30] and not due to any suspicion. Thus, the whole of the police information combined with the civilian information was not enough to found Cst. Horwood’s demand without something else. [ 36 ] As indicated above, Cst. Horwood only formed the grounds herself when the EMT made his “two beers” statement in the ambulance – for her, that was a critical point. To use words of Cst.

Horwood, she said her grounds came “...when I heard it from [EMT] Thatcher.” [31] [ 37 ] While there is some inconsistency in whether EMT Thatcher did in fact state that the accused had been drinking, even if such a statement was made I find the evidence to be redundant. Any information about the “two beers” simply confirmed what Cst. Horwood had already heard from Cpl. Wagner – it does not provide any new information, nor was it gathered directly by Cst. Horwood from what she observed. [ 38 ] I understand that for her, this final piece of duplicated information was the tipping point. Yet, Cst.

Horwood did not have grounds on entering the ambulance with the accused, and she did not speak with Cpl. Wagner (to learn anything further) until after the demand had been made at the hospital. [32] This is how Cst. Horwood described the situation: [33] Q All right, so, is it fair to say that when you entered into the ambulance with -- well, and Ms. Hodder was already in the ambulance – a M-hm.

Q-- and at that point, or just prior to that, Corporal Wagner had told you she’s the driver and I believe she’s consumed two beer, you did not believe at that point you had grounds to demand the blood sample or grounds to demand the blood sample? A I believe it was leading to that , and until I felt confident that I had, you know, secure factual information, because I don’t know where Corporal Wagner got it from- - Q Okay. A-- but when Mr. Thatcher advised that Ms. Hodder had informed him, then it was -- he was my -- my witness then, right.

Q So, is it fair to say then it was at that point where you felt you then had grounds to demand -- A Yes, when I heard that from Mr. Thatcher . [emphasis added] [ 39 ] Objectively was this reasonable? Before answering this, I point out the objective test focuses on a reasonable officer in Cst. Horwood’s shoes - not a reasonable person who knows all the evidence after it is led. As such, I must only look to the whole of the evidence available to Cst.

Horwood when she formed her belief, not looking over her shoulder, but nevertheless scrutinizing the situation through the viewpoint of a reasonable person sitting in Cst. Horwood’s shoes. [ 40 ] I acknowledge Cpl. Wagner, by his own admission, stated that he only “potentially” thought the accused was the driver and that he made no “other” observations about her that in my mind might attract judicial reflection. [34] Cst. Horwood could not have known this, however, and so it is irrelevant to this decision. [ 41 ] Further, while Cpl. Wagner gave orders for Cst.

Horwood to ride in the ambulance, he may have still possibly been forming his own grounds per his subsequent discussions with Cpl. Gibbs about the impairment of the accused. I only raise this as fact, even though it does not alter my decision because Cst. Horwood did not know about those matters and could not have known about the subsequent discussion. Accordingly, I ignore completely this evidence as well: see McClelland . [ 42 ] The critical “two beers” statement by EMT Thatcher - whether corroborated or denied - gave Cst. Horwood grounds for

nothing more than what she had when she entered the ambulance. That information, lacking other indicia of alcohol, was not enough to give her reasonable grounds. While it is true Cst. Horwood already had received an erratic dispatch, as well as observing an unexplained accident and an agitated and swearing accused, this is not enough to constitute objectively reasonable grounds. [ 43 ] I note here that the cell phone argument which occurred in the ambulance related to what appears to be a dispute with Ms. Hodder’s boyfriend, who she called “over and over” to meet her at the hospital.

When he did not want to attend at the hospital the accused was “... definitely very upset with this person ...[with a] constant, constant anger towards this individual.” [35] The accused was likely mad as a result of a boyfriend/girlfriend dispute, whatever the cause of that dispute might be. For the purposes of this voir dire , the telephone argument is not sufficient to objectively demonstrate that Cst. Horwood had reasonable grounds. Two people in a relationship were fighting, and while this does not justify vulgarity or disrespect to the first responders, it does explain the agitation of Ms.

Hodder. [ 44 ] Accordingly, I find that Cst. Horwood may have subjectively had grounds to make her demand, however, objectively they were not reasonable.

The “new” information provided to her in the ambulance was information she already held - with the exception of the vulgarity and telephone fighting between the accused and a person who was likely her boyfriend, which indicia I believe related to the accident as opposed to impairment (seemingly, the person on the other end of the line was going to be in trouble if he was not in the hospital for her. [36] ) Result [ 45 ] For the reasons stated above, I find the blood demand of Cst. Horwood lacked reasonable and probable grounds and the refusal is therefore inadmissible.

The Defence application on the voir dire portion of this trial succeeds. Heard on the 21 st day of December, 2011. Dated at the City of Calgary, Alberta this 29 th day of February, 2012. W. A. Tilleman J.C.Q.B.A. Appearances: Dane Rolfe and W. M. Wister for the Crown Jason McKen

for the Defendant [1] I note here that the Defence dropped any challenge as to the timing of the blood demand. [2] Transcript, p. 94. [3] Id., p. 97. [4] Id., p. 99. [5] About 13 minutes.

See transcript pp. 104, 117. [6] Id., p. 99. [7] Id., p.100. [8] Id., pp.101-102. [9] Id., p.102. [10] Id., p. 103. [11] Id. [12] Id., p.104. [13] December 20, 2011 Memorandum of Crown, p. 3 [14] A police officer may make a demand for a breath or blood sample pursuant to s. 254(2), within the three hours preceding the formation of such a belief. [15] I discount such evidence because EMT McPherson’s “alcohol smell” was totally inconsistent with Cst.

Horwood statement that she could smell no alcohol on the accused, in addition to the fact that EMT McPherson was “pretty sure” he spoke with a “Staff Sergeant Maxwell” who, if he or she does exist, gave no evidence before me: see Transcript, p. 82, lines 15 - 22. [16] Though not much turns on it, I query two things: (1) how this is in the field of expertise of Cpl.

Gibbs’ and (2), how an accident reconstructionist reaches conclusions without at least looking at photos of the scene (or attending the scene which one thinks would be a normal prerequisite)? [17] Transcript, p. 114, lines 27-29. [18] Transcript, p. 163, lines 20 - 22. [19] Transcript, p. 163, lines 6 - 9 “Q All right. So is it fair to say, then, that it was because of the fact that you were ordered by Corporal Wagner to attend with Ms. Hodder en route to the hospital, is it fair that you inferred from that that Ms. Hodder was believed to be the driver?

A For sure.” [20] Transcript, p. 102, lines 32-39. [21] See transcript, p. 108, for the latter quote. [22] Transcript, pp. 45 - 46. [23] The evidence of EMT McPherson is as follows (transcript pp. 77-78): Q Okay. Did you speak to any officers on - - on that night?

A Yeah, I - - I had mentioned to one officer, our ambulance crew was ready to leave the scene - - Q M-hm. A - - and I had approached, and I’m not sure if it was an officer as in Corporal or Staff Sergeant or just a - - a Constable, but I had approached one of the RCMP members to question if anybody was going with the ambulance. From my experience, that’s been common practice with the RCMP - - Q M-hm.

A - - in MVA situations, they’ll have a member attend with the patient to the hospital, and because the ambulance was ready to leave and I hadn’t seen anybody get in, I approached a member, I asked, I said, is anybody going in the ambulance with them, and they had - - he kind of was, like, oh, okay, they’re ready to go, do we need to send somebody, and I said, well, I don’t know, do you, it’s - - it’s what you guys have done in the past. Q Okay.

A And I guess that’s when they got another member to ride in the ambulance. [24] Cpl. (Wagner) retrieved his information by saying he overheard the accused say she had two beers, though he did not positively know she was the driver. He also relied on an EMT (whose name he could not identify with certainty) but at least one other EMT denied saying anything about alcohol (ETH) beside the EMT’s admonition to the RCMP (transcript, p. 78) regarding the ambulance was: “...[as] I said ... are you sending somebody in the ambulance[?]” [25] Transcript, p. 118, lines 6-11. [26] See e.g., R. v.

Neil , 2009 ABQB 199 . [27] See e.g., R. v. Bush , 2010 ONCA 554 . [28] See e.g., R. v. Grenke , 2011 ABQB 565 . [29] Transcript, p. 104: Q And anything that you observed there? A There was substantial front end damage. Inside there were, like, ID’s, like her -- her pass and stuff like that, for work, there was no indication of any alcohol in there, no like empty bottle or full bottles or anything like that. Q M-hm. A Just normal, like, paperwork and so forth in there, nothing -- nothing out of the ordinary or anything, but substantial damage to the vehicle as a result of collisions.

Q And with respect to the smell of anything in the vehicle, inside the vehicle? A I never smelt anything there. Q M-hm. I interrupted you, so back at -- at Cory Thatcher had provided you with that information; correct? A Correct, yeah. Q And at that time, what did you think you were investigating at that point? A An impaired.

Q And what time did you form that opinion? A Then, I definitely had an opinion that she had probably -- or that she had consumed too much alcohol, given the circumstances of the collision that took place and her admitting to paramedics that she had consumed, that we were investigating an impaired. [30] See Transcript, p. 119, lines 34-40. [31] Id., p. 120, line 37. [32] Id., p. 123. [33] Id., p. 120, lines 21-37. [34] Transcript, p. 149: Q Did you make any other observations about her during the time that you had observed her when you first arrived until she -- until this individual is being loaded into the ambulance? A No, sir. [35] Transcript, pp. 101-102. [36] Id., pp. 101-102