R. v. Erskine, 2015 ONSC 5887

CITATION : R. v. Erskine, 2015 ONSC 5887 COURT FILE NO.: 11-3679 DATE: 20150930 ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) W. Dorsey, for the Respondent ) Respondent ) ) - and - ) ) ) TENNILLE ERSKINE ) ) ) P. Erskine, for the Appellant ) Appellant ) ) ) ) ) HEARD: July 13, 2015 at Brampton DECIDED: September 30, 2015 REASONS FOR JUDGMENT [On appeal from the judgment of Clark J. dated January 27, 2014] Andr é J. [ 1 ] Ms. Erskine appeals her January 27, 2014, conviction on charges of impaired operation and refuse breath sample with which she was charged on March 17, 2011.

She submits that the trial judge committed a number of errors in law in concluding that the Crown had proven its case against her beyond a reasonable doubt. Specifically, she contends that the arresting officer lacked the requisite grounds to arrest her, that he had no legal authority to enter her residence to arrest her and that there is no evidence that she intentionally refused or

failed to provide suitable breath samples upon request. [ 2 ] The Crown submits that the arresting officers had adequate grounds to arrest Ms. Erskine and that based on the evidence called by the Crown, it was open to the trial judge to find Ms. Erskine guilty of both offences.

SUMMARY OF THE TRIAL EVIDENCE CROWN EVIDENCE Giancarlo Quattrociocchi [ 3 ] Giancarlo Quattrociocchi testified that he and a friend, Richard Young-Michaud, were driving home from a restaurant when they observed what appeared to them to be a car driven by a drunk driver. The vehicle was weaving in and out of lanes and going from the right lane to the left without signalling. Another car had to apply its brakes to avoid this vehicle. The vehicle exited at Zenway Drive. It cut off other vehicles and stopped at a green light. It sped through the intersection on a red light. It struck a right curb while turning right.

The vehicle then entered a driveway. Mr. Quattrociocchi’s friend called 911. [ 4 ] The witness never lost sight of the vehicle. He saw a dark-skinned lady, 5’7” tall, crawl out of the front passenger side door and stumble on her way to the house. No one else exited the house before the police arrived two minutes later. [ 5 ] Under cross-examination, Mr. Quattrociocchi testified that he initially thought that the driver was a male. He reiterated that he saw the individual stumble after exiting the car. He testified that he saw her go to the front door of the house but did not recall seeing her go in.

He recalled that following Ms. Erskine’s arrest, there was a male trying to prevent the officer from taking her away. Richard Young-Michaud [ 6 ] Mr. Young-Michaud saw the vehicle cut from the far right lane to the left lane on a local highway. The vehicle then made a similar manoeuvre. Mr. Young-Michaud called 911. The vehicle struck the right curb of the road for no apparent reason. It then swerved back into the middle of the road. Mr. Young-Michaud testified that he simply assumed that the driver was male black.

However, after the vehicle had parked in a driveway, he observed a female exiting the passenger side, carrying bags. She then “waddled” her way to the front door of the house. [ 7 ] Under cross-examination, Mr. Young-Michaud conceded that he had told the police that the driver exited the vehicle from the driver’s side. He stated that while she had not fallen, she had twice lost her balance and had then taken a “double-step”. He later saw a male, who was very upset, on the driveway. An officer was trying to calm down the male. Cst. McIntaggart [ 8 ] The officer testified that upon arrival at Ms.

Erskine’s residence, Mr. Quattrociocchi and Mr. Young-Michaud advised him of their observations. He went to the front door and rang the bell. A male answered. The officer advised the male that he was there to investigate the car in the driveway. The male responded that his wife had just come home from school and was in the washroom. The officer asked the male if his wife had consumed alcohol since coming home. The male said she had not. [ 9 ] Ms. Erskine approached the officer’s location. The officer asked Ms. Erskine to step closer so he could speak with her. He observed that she was unsteady on her feet.

She was swaying while walking. A strong odour of an alcoholic beverage emanated from her breath. Her eyes were red-rimmed and watery. When asked if she had been drinking, Ms. Erskine replied, “earlier”. The officer observed that she had mild slurred speech. Ms. Erskine had some difficulty producing her driver’s licence. At the officer’s request Ms. Erskine and the male then went to look at the vehicle. [ 10 ] The officer then formed the opinion that Ms. Erskine’s ability to operate the motor vehicle had been impaired by the consumption of alcohol.

He then arrested her, and read her rights to counsel, a breath demand and caution. [ 11 ] Cst. McIntaggart testified that he had not formed his grounds to arrest Ms. Erskine when he approached her front door. He testified that he did not follow the male, Mr. Ukiri, into the residence because he had not been “invited in”. [ 12 ] Under cross-examination, the officer denied that he had instructed Mr. Ukiri to go get his wife. Defence counsel put to him that he had followed the male inside the residence.

The officer had no recollection of this. [ 13 ] The officer conceded that when they left the house, he had not yet formed the requisite grounds to arrest Ms. Erskine for impaired driving. He then noted that he believed that he had the requisite grounds but did not arrest her because he wanted to observe her for a slightly longer period. He indicated in his Alcohol Influence Report (the “Report”) that the effects of alcohol on Ms. Erskine were obvious. Asked why he had made no notation about her speech in his Report, he replied that he had already done so in his notebook. Cst.

McIntaggart concluded his testimony by noting that Ms. Erskine became quite belligerent when he was reading her rights to counsel. Cst. Dameon Okposio [ 14 ] The qualified breathalyzer technician testified that he had performed 742 breath sample procedures prior to this case. [ 15 ] He initially met Ms. Erskine at 22 Division. His interaction with her was recorded. He read her rights to counsel.

He explained to her that if she did not blow into the instrument, and only pretended to do so, she would be charged with refuse to provide breath sample, which would attract the same penalties as the charge of impaired operation of a motor vehicle. He then asked her if she had any questions. She replied she did not. [ 16 ] The officer then showed Ms. Erskine how to blow into the machine. She then tried to blow into the mouthpiece. He told her she was blowing “lightly”. The mouthpiece did not have any obstructions. He told her to take a deep breath and blow continuously into the

mouthpiece. [ 17 ] The trial judge found, upon reviewing the video of the breathroom, that Ms. Erskine made approximately fifty-three attempts to provide a suitable sample of her breath into the machine. In most, she blew for one or two seconds and then stopped. The officer kept repeating that she was not blowing properly. He repeatedly told her to blow as if she was blowing a balloon or blowing out candles on a birthday cake. He also said to her: “You’re just puffing your cheeks”. After the fifth unsuccessful attempt, the officer again explained to Ms. Erskine how to blow into the machine. [ 18 ] Ms.

Erskine made at least thirteen further attempts. She never blew more than four seconds on any of these attempts. [ 19 ] Other attempts did not last more than two seconds. On her twenty-fourth attempt, Ms. Erskine blew for approximately ten seconds which was deemed to be a suitable sample. [ 20 ] Ms. Erskine made a number of unsuccessful attempts to provide a second breath sample. For her next seven attempts, she blew for three seconds before she stopped blowing. In the next three attempts, she blew for two to three seconds and then stopped blowing. [ 21 ] The officer exhorted Ms.

Erskine to blow for a longer period. On one occasion, she blew for eight to nine seconds. She told him that she had put everything in the effort. He told her that he could hear air escaping from the sides of her mouth. Ms. Erskine made a number of unsuccessful attempts to blow into the machine. The officer cautioned her that he would charge her with refuse breath sample if she did not provide a suitable sample. She then made two more attempts to provide a breath sample. Neither lasted more than two seconds. [ 22 ] At one point, the officer told Ms. Erskine: “This is your last opportunity.

If not, you’ll be charged.” [ 23 ] Ms. Erskine made three additional attempts to blow into the machine, with each attempt lasting four to five seconds. She told the officer that she was doing her very best. [ 24 ] The officer then terminated the process and advised Ms. Erskine that she would be charged with Refuse to Provide Sample. He then advised her that the first sample she provided registered 164 milligrams of alcohol in 100 millilitres of blood. DEFENCE EVIDENCE Bernard Ukiri [ 25 ] He testified that he was at home when the police rang the doorbell. He was having a drink of cognac at the time.

He told the officer that his wife owned the vehicle in the driveway. He also told the officer that his wife was in the washroom and that he had poured her a glass of cognac. He agreed that the officer never ordered him to get Ms. Erskine. [ 26 ] Mr. Ukiri testified that Ms. Erskine came out of the washroom and walked to the front door. He testified that the officer was two to three feet behind him inside the door. He never invited the officer in; neither did the officer ask permission to enter the house. [ 27 ] Mr. Ukiri testified, while being cross-examined, that he never smelt alcohol on his wife’s breath.

POSITIONS OF THE PARTIES [ 28 ] The appellant submits that:

(1) The Crown failed to prove beyond a reasonable doubt that Ms. Erskine was the driver of the vehicle.

(2) The trial judge erred in law in finding that the officer had not breached Ms. Erskine’s s. 8 Charter rights by entering her house without a warrant. Mr. Ukiri testified he poured her three shots of cognac which she immediately consumed in two gulps. The doorbell rang three to five minutes later. He testified that the officer followed him along the hallway right up to the staircase. He disagreed that neither he nor Ms. Erskine drank any alcohol before the officer arrived. He also disagreed that the officer remained at the front door and never went inside the house.

(3) The trial judge erred in finding that the officer had reasonable and probable grounds to arrest Ms. Erskine.

(4) The trial judge erred in law in finding that the Crown had proven the essential elements of the offence of impaired driving beyond a reasonable doubt.

(5) The trial judge erred in finding beyond a reasonable doubt that Ms. Erskine had intentionally refused to provide a breath sample. ANALYSIS [ 29 ] This appeal raises the following issues:

(1) Did the trial judge err in law in finding that the Crown had proven the identity of the suspect driver beyond a reasonable doubt?

(2) Did the trial judge err by finding that Cst. McIntaggart had not entered Ms. Erskine’s residence, thereby violating her

section 8Charter rights?

(3) Did the trial judge err in law in finding that Cst. McIntaggart had reasonable and probable grounds to arrest Ms. Erskine?

(4) Did the trial judge err in law when he concluded that the arresting officer did not violate Ms. Erskine’s ss. 9 and 10(

b) Charterrights?

(5) Did the trial judge err in law in finding that the Crown had proven the essential elements of the offence of impaired drivingbeyond a reasonable doubt?

(6) Did the trial judge err in law in finding that the Crown had failed to prove the charge of refuse to provide a breath sample,beyond a reasonable doubt? ISSUE NO.

ONE – Did the trial judge err in law in finding that the Crown proved the identity of the suspect driver beyond areasonable doubt? [30] Before assessing the trial judge’s factual findings, it is necessary to review the appellate standard of review of a trial judge’sfindings of credibility. [31] First, absent palpable and overriding error, factual findings by a trial judge should be afforded considerable deference: see R. v.Gagnon, 2006 SCC 17 , [2006] 1 S.C.R. 621, at para. 20; R. v. R.E.M., 2008 SCC 51 , [2008] S.C.J. No. 52, at para.49; R. v. Campbell, 2009 ONCA 95 , [2009] O.J.

No. 363 (C.A.), at para. 44. [32] Second, in Waxman v. Waxman (2004), (ON CA), 186 O.A.C. 201 (C.A.), at paras. 296-297, leave to appealto S.C.C. refused [2004] S.C.C.A. No. 291, the Court of Appeal described “palpable and overriding error” as follows: [296] The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable”error is one that is obvious, plain to see or clear: [Citation omitted].

Examples of “palpable” factual errors include findings made in thecomplete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence andfindings of fact drawn from primary facts that are the result of speculation rather than inference. [297] An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact.

Where the challengedfinding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” errordoes not automatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of thechallenged finding of fact such that the fact cannot safely stand in the face of that error: [Citation omitted]. [33] Third, a trial judge has considerable latitude in his or her appreciation of the evidence and the inferences to be drawn therefrom,while assessing the credibility of witnesses.

Accordingly, all factual findings are open to a trier of fact, except unreasonable ones: R. v.Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 32, 33, 37 and 42. [34] The trial judge accepted the testimony of Mr. Quattrociocchi and Mr. Young-Michaud that they had seen a female exit thevehicle and proceed to the house. In so doing, he identified the frailties of identification evidence and proceeded to give reasons why heaccepted the evidence of these two witnesses. Specifically, he noted that:

(1) They did not exaggerate.

(2) They both appreciated the solemnity and importance of the event and were able to maintain continuity in following the subjectvehicle which was never out of sight until it stopped at the subject residence.

(3) Their observations were not fleeting.

(4) The description of the actions and movements of the subject were being reported in real time as they followed the vehicle over an extended period of time and distance.

(5) There was no collusion between the two witnesses.

(6) The witnesses did not manifest any animus towards Ms. Erskine. Reasons for Judgment dated January 27, 2014, at pp. 19-20. [ 35 ] The trial judge also considered the inconsistencies in the testimony of Mr. Quattrociocchi and Mr. Young-Michaud, particularly their prior statements to the police that they initially believed that the suspect driver was male. The trial judge accepted their explanation that they simply assumed, based on the manner of driving, that the driver was male: Reasons for Judgment dated January 27, 2014, at p. 20. [ 36 ] Finally, the trial judge correctly noted that Mr.

Ukiri testified that Ms. Erskine had just arrived home when the police knocked on his front door. [ 37 ] In my view, there was ample evidence for the trial judge to find that Ms. Erskine was the driver of the motor vehicle which had been followed by Mr. Quattrociocchi. It was clearly open to him to find that Ms. Erskine was the driver of the suspect vehicle. Accordingly, this ground of appeal must fail. ISSUE NO. TWO – Did the trial judge err by finding that Cst. McIntaggart had not entered Ms. Erskine’s residence, thereby violating her

section 8 Charter rights? [ 38 ] The trial judge concluded that the officer proceeded inside Ms. Erskine’s home “no further than just inside the foyer”: Reasons for Judgment, at p. 27. [ 39 ] The trial judge rejected Mr. Ukiri’s evidence that Cst. McIntaggart had followed him inside the house as far as the staircase. He categorically rejected Mr. Ukiri’s evidence that Ms. Erskine had consumed cognac upon arriving at her home. Noted the trial judge: For him to have served her a drink is patently absurd, and defies common sense and credibility.

The value of his overall evidence is severely discounted as a result of this transparent attempt to create a legal basis for a defence of post-offence consumption to account for any impairment. [ 40 ] The appellant contends that the trial judge’s finding is inconsistent with photographs filed as exhibits which clearly indicate that the officer simply could not have seen Ms. Erskine inside the house, while standing at the front door. [ 41 ] The trial judge found that Cst. McIntaggart did not violate Ms.

Erskine’s ss. 8 and 9 Charter rights given that: [T]here exists an implied licence to the public (including the police), engaged in a limited purpose, to approach and knock on the door of a dwelling house. [ Reasons for Judgment, at pp. 26-27] [ 42 ] The trial judge did not ignore the photographic evidence called by the appellant. Indeed, he noted at page 31 of his Reasons for Judgment, that one of the “flaws” which the defence identified in Cst.

McIntaggart’s evidence was the fact that “photograph exhibits 3A and 3B show it would be impossible for him to have seen the washroom from this vantage point”. [ 43 ] Significantly, however, the officer testified in cross-examination that he had not seen a washroom while standing at the doorway. He testified that he saw: [A] doorway perhaps, or another room off to the side that I assume is a washroom…But I don’t remember seeing a door… I just remember there being a room where Ms. Erskine came out from.

[44] He further testified: I didn’t see the room itself, I just saw that there was a entrance or some sort of entrance to my left. [Transcript of Trial Proceedings,August 30, 2013, pages 34, 37 and 40.] [45] After rejecting the testimony of Mr. Ukiri and downplaying the significance of the photographic evidence, it was open to thetrial judge to find as a fact that Cst. McIntaggart did not follow Mr. Ukiri into the residence. Significantly, Mr. Quattrociocchi testifiedthat he did not recall seeing Cst. McIntaggart go into the residence.

Implied Licence to Knock [46] The trial judge found that based on the doctrine of an implied licence to knock, the officer did not violate Ms. Erskine’s s. 8Charter rights. The appellant submits that the trial judge erred in his

interpretation of this legal doctrine and its applicability to the case. [47] The trial judge relied on the case of R. v. Golubentsev, [2007] O.J. No. 4608 (C.J.), for the proposition that given the nature andtiming involved in drinking and driving investigations, it was necessary for the police to act as quickly as possible to preserve evidence,considering the dissipation of alcohol from the body, and the opportunity to consume additional alcohol (or claim to do so), all of whichrendered immediate action imperative. [48] The trial judge made the following factual findings in determining that Cst. McIntaggart did not violate Ms. Erskine’s s. 8Charter rights:

(1) The officer was no further than just inside the foyer.

(2) He was at a location where guests are ordinarily or usually greeted.

(3) There was a lower expectation of privacy that exists at the entrance to a house.

(4) He did not push or force his way in.

(5) This was not a trespass.

(6) There was no objection by the defendant or her husband. He was not told to leave.

(7) It was not a ruse. He was investigating both the possibility of there having been an accident and a drinking-driving situation.

(8) A detention did not take place until the defendant and her husband came outside with the officer at which time he had furtherdealings with her and made further observations which led to or confirmed his grounds for impairment.

(9) The officer fulfilled his duty to conduct a preliminary investigation to determine if there was any evidence of a criminal offence. [49] The trial judge also concluded that the officer acted in good faith in that he had a subjective honest belief, objectively supported,to continue the investigation: Reasons for Judgment, at p. 27. [50] Did the trial judge’s factual findings support a conclusion that Cst. McIntaggart did not violate Ms. Erskine’s Charter rightsbecause of an implied licence to knock on the door of her dwelling to investigate a criminal offence? Whether they do is a question oflaw: R. v.

Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20. It is settled law that the standard of review on questions of law insummary conviction appeals is one of correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. [51] The main authority for the doctrine of implied licence to knock on a door is that of R. v. Evans, (SCC), [1996]1 S.C.R. 8. In that case, police officers received an anonymous tip that the accused were growing marijuana in their residence. Theyconducted an initial investigation which did not substantiate the complaint. Despite this, the police decided to knock on the door of the

residence and question the residents. Upon doing so, they smelt marijuana when one of the accused opened the door. The accused was then charged. [ 52 ] In delineating the parameters of the implied licence to knock, Sopinka J. concluded at paragraph 13 that: [T]he occupier of a dwelling is deemed to grant the public permission to approach the door and knock. When the police act in accordance with this implied invitation, they cannot be said to intrude upon the privacy of the occupant.

The implied invitation, unless rebutted by a clear expression of intent, effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling. [ 53 ] Justice Sopinka held at paragraph 15 that the scope of the “implied invitation to knock” is limited by its purpose. Where the officers entered on the suspect’s property “to facilitate communication between the public and the occupant”, then the actions of the police fell within the scope of the implied invitation to knock.

Where however, the police approached the home and knocked on the door, “not merely out of a desire to communicate with the occupants, but also in the hope of securing evidence against them”, then the officers exceeded the scope of the implied invitation to knock: Evans , at para. 18 . [ 54 ] The distinction between approaching a residence for the purposes of communication and investigation on one hand and doing so to gather evidence may not be as apparent as it may seem. At paragraph 17 of his decision in Evans , Sopinka J. cited approvingly the British Columbia Court of Appeal’s decision in R. v.

Campbell , (1993), B.C.A.C. 204 (C.A.), drawing a distinction between the two. In that case, the police acknowledged that they had knocked on the accused’s door not only to make inquiries regarding an anonymous tip, which was proper, but also to see if stolen furniture was visible through the front door, which was an evidence gathering purpose. [ 55 ] In R. v. Van Wyk , [1999] O.J.

No. 3515 (S.C.) , Justice Hill noted at paragraph 33 that: Where the sole purpose of the police officer is to ask questions of the homeowner, nothing can be gathered by the government, in the sense of unwitting disclosure by the occupant, until he or she chooses to speak. The police intent of facilitating communication, even investigative questioning, does not exceed the bounds of the implied right to approach and knock and is, accordingly, not trespassory or in breach of s.8 of the Charter . [ 56 ] Applying the facts to this case, the trial judge found that Cst.

McIntaggart’s approach of the residence, knocking on the door and communicating first with Mr. Ukiri and then Ms. Erskine was not a ruse, but an investigation of an accident and a drinking driving situation. The witnesses had reported that they had seen the suspect vehicle strike a curb and it was therefore not improper for the officer to have claimed that he was also investigating an accident. The officer testified that he had not followed Mr.

Ukiri into the residence because he was not invited to do so. [ 57 ] The fact that the officer stepped just inside the doorway does not necessarily lead to a conclusion that the officer violated Ms. Erskine’s s. 8 Charter rights. Even if his conversation with her had taken place just outside the doorway rather than inside of it, Cst. McIntaggart’s grounds for arrest would have been formed only after he had confirmed that Ms. Erskine was the driver and after making observations of her. The constitutional validity or invalidity of Cst. McIntaggart’s entry onto Ms.

Erskine’s property cannot be determined by a “step or two” inside the residence. [ 58 ] In my view, the case of R. v. Desrochers (2008), 47 M.V.R. (5th) 315, [2007] O.J. No. 1482 (S.C.) , affirmed 2008 ONCA 255 , is substantially similar to this case. In that case, the appellant, who showed signs of intoxication, was involved in an accident witnessed by civilians who then followed him to a residence and called 911. The witnesses remained at the residence until the police arrived. Witnesses said they had seen the appellant enter the garage on his motorcycle.

An officer approached the appellant’s front door and knocked. His wife answered the door. She did not object when the officer stepped just inside the door. The officer asked to speak to the appellant. A second officer went to the rear of the house to ensure no one would leave through the back. [ 59 ] On appeal, MacKinnon J. found that the first officer was fulfilling his obligations by investigating circumstances that might have constituted criminal conduct. He distinguished Evans on the basis that in Evans , there was no necessity of engaging the occupants in conversation or questioning.

The only purpose in having them open the door was to determine whether there was the odour of marijuana within. In dismissing the further appeal, the Ontario Court of Appeal noted that the trial judge accepted the officer’s evidence that he went to the door to speak with the appellant in connection with the accident. Unlike Evans , the officer did not go to the door under a pretext and with the intention of conducting an unlawful search of the home.

The Court of Appeal concluded that the implied invitation to knock doctrine applied and rendered the police conduct in approaching the house and knocking on the door lawful: Noted in R. v. Oulton , 2011 ABQB 243 , at para. 18 . [ 60 ] A similar conclusion is applicable in this case. For that reason, this ground of appeal fails. ISSUE NO. THREE – Did Cst. McIntaggart have reasonable and probable grounds to arrest Ms. Erskine? [ 61 ] The requirement of reasonable and probable grounds does not require proof beyond a reasonable doubt or even the establishment of a prima facie case: R. v. Bush , [2010] O.J.

No. 3452 (C.A.), at paras. 36-27 ; R. v. Censoni , [2001] O.J. No. 5189 (S.C.), at paras. 30- 31 . [ 62 ] In the context of a demand for breath samples, the requirement of the reasonable and probable grounds standard is “not an

onerous test”. It must not be “inflated to the context of testing trial evidence”, but neither must it be “so diluted as to threaten individual freedom”: R. v. Bush , at para. 46; R. v. Censoni , at para. 43. [ 63 ] To justify an arrest or breath demand, the police officer need only have objectively based reasonable and probable grounds to believe that the accused’s ability to drive was “slightly impaired” by alcohol: R. v. Bush , at paras. 47-48; R. v.

Censoni , at para. 47. [ 64 ] As assessment of whether the police officer objectively possessed reasonable and probable grounds does not involve the equivalent of an “impaired driver scoreboard”, with a list of all the “usual indicia of impairment”, and counsel conducting an inventory as to which indicia are present and which are absent as part of the essential assessment.

Indeed, there is “no mathematical formula” whereby the police officer must have a certain minimum number of indicia of impairment before it can be said, as a matter of law, that the necessary reasonable and probable grounds are objectively present: R. v. Censoni , at para. 46; R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2 . [ 65 ] Applying those principles to the facts of this case, Cst. McIntaggart had the requisite reasonable and probable grounds to arrest Ms. Erskine. He received information that a possible impaired driver had driven to a residence which turned out to be Ms.

Erskine’s residence. Upon arrival at that location, Mr. Quattrociocchi and Mr. Young-Michaud advised him of the erratic driving they observed and the female they had seen exiting the car and entering the residence minutes before the officer’s arrival. He proceeded to the door and spoke to Mr. Ukiri. Ms. Erskine approached the officer’s location. Cst. McIntaggart made the following observations of Ms. Erskine:

(1) An odour of alcohol emanated from her breath.

(2) She swayed from side to side.

(3) Her eyes were red rimmed and watery.

(4) She admitted to having consumed alcohol “earlier”.

(5) She had some difficulty producing her licence.

(6) Her speech was slightly slurred. [ 66 ] There was ample evidence for the trial judge’s conclusion, that, both subjectively and objectively, the officer had the requisite grounds to arrest Ms. Erskine for impaired driving. [ 67 ] Accordingly, this ground of appeal must fail. ISSUE NO. FOUR – Did the trial judge err in law when he concluded that the arresting officer did not violate Ms. Erskine’s ss. 9 and s. 10 Charter rights? [ 68 ] Mr. Erskine submits that Cst. McIntaggart violated her s. 9 Charter rights when she was directed to not only produce her licence but to come closer to him.

The detention continued when he directed her to accompany him outside to the car. The officer violated her ss. 10(

a) and 10(

b) Charter rights because Cst. McIntaggart merely informed her that he was investigating a traffic offence. [ 69 ] The trial judge found Cst. McIntaggart to be a credible witness. The officer testified that he made his observations of Ms. Erskine while he was standing at the doorway. [ 70 ] He asked Ms. Erskine for her licence but did not tell her why. He could not recall if he told her that he was there to investigate a possible impaired driving complaint. The officer testified in cross-examination that he had not yet formed the necessary grounds that Ms.

Erskine was impaired before they left the house to inspect the car. He later testified that he believed that he had the necessary grounds but did not arrest her because he wished to observe her for a longer period of time. He never told her that she was not required to accompany him to look at the car. He arrested Ms. Erskine after he inspected her car. He then read her rights to counsel and caution. Ms. Erskine subsequently contacted two lawyers while at the police station. [ 71 ] At trial, Ms. Erskine’s counsel submitted that Cst. McIntaggart violated her ss. 10(

a) and 10(

b) Charter rights by not advising her of the reason for her detention. [ 72 ] Did Cst. McIntaggart detain Ms. Erskine outside of her residence before reading her rights? In R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353, the Supreme Court of Canada held that a “detention” pursuant to s. 9 of the Charter refers to a deprivation of a person’s liberty by virtue of a significant physical or psychological restraint by an agent of the state. In R. v.

Suberu , 2009 SCC 33 , [2009] 2 S.C.R. 460, the majority held that not every police interaction with members of the public amounts to a detention under s. 9 of the Charter . Police officers are not required to abstain from verbally interacting with the public until they have evidence connecting a person

to the commission of an offence, and not every action will trigger a person’s s. 10(

b) rights. If however, a reasonable person in theposition of the individual being questioned, concludes that he or she had been deprived of one’s liberty, then the person being questionedis detained. [73] Applying these legal principles to the facts of this case, Cst. McIntaggart asked Ms. Erskine to inspect the car with him. Hepointed out some areas of damage. He had earlier asked her if she had operated the vehicle and if she had consumed alcohol. Hisinteraction with her was relatively short. There is no evidence that the officer had significantly restrained Ms. Erskine’s physical orpsychological liberty. Ms.

Erskine did not query the officer’s actions. On the contrary, the officer gave uncontradicted evidence that shewas quite polite and cooperative and only became belligerent upon being advised that she was under arrest. [74] In the circumstances of this case, Cst. McIntaggart did not detain Ms. Erskine outside her residence such that her ss. 10(

a) and10(

b) rights were engaged. Alternatively, if she was indeed detained, such detention would have occurred after the officer had made theobservations which ultimately provided him with the requisite legal grounds to arrest Ms. Erskine. [75] For the above reasons, this ground of appeal must fail. ISSUE NO. FIVE – Did the trial judge err in concluding that the Crown had proven the charge of impaired operation beyond areasonable doubt? [76] The trial judge concluded that the Crown had proven impairment beyond a reasonable doubt. He relied on the observations of“bad driving” of the two civilian witnesses, Mr.

Erskine’s manner of walking to her house and the observations made by the two officerswhich he accepted to conclude that the Crown had met the legal standard of proof beyond a reasonable doubt: see Reasons for Judgment,at pp. 24-25. [77] The appellant advanced two arguments in support of her position that the Crown had failed to meet the requisite standard ofproof beyond a reasonable doubt. First, that many of the so-called indicia of impairment identified by the police officers are merelyindicators of alcohol consumption, rather than impairment.

Second, that the witnesses’ observations regarding impairment are equivocalat best and do not inexorably support an inference of impairment. [78] The trial judge correctly relied on the case of R. v. Stellato, (SCC), [1994] 2 S.C.R. 478, for the proposition thatany degree of impairment, may be sufficient proof of this offence.

This decision however, does not relieve the Crown of its obligation toprove the offence beyond a reasonable doubt. [79] The trial judge properly concluded that he must consider the totality of the evidence, rather than each indicia of impairment inisolation, to determine whether or not the Crown had proven this charge beyond a reasonable doubt. The assessment of impairment doesnot reduce a trier of fact to a tally clerk, engrossed in the task of counting the number of indicators that may support a conviction.

He orshe must consider all of the evidence including that which may support an inference other than the guilt of an accused. [80] In my view, there was ample evidence to support a finding of guilt of impaired driving. This evidence, given the factual findingsof the trial judge, includes evidence of Ms. Erskine’s erratic driving, her manner of walking to the house, the condition of her eyes, theodour of alcohol that emanated from her breath and her admission of alcohol consumption.

It was open to the trial judge to conclude thatthe constellation of these factors constitutes proof of guilt beyond a reasonable doubt. [81] Accordingly, this ground of appeal fails. ISSUE NO. SIX – Did the trial judge err by concluding that Ms. Erskine intentionally failed to provide a suitable breath sample? [82] The trial judge noted the following, in paragraph 105 of his Reasons for Judgment: The Court accepts the evidence of Cst. Okposio, without hesitation, that he afforded every opportunity to the defendant to provide abreath sample, without success.

He maintained his composure and treated her respectfully and professionally throughout theinvestigation. He truly and earnestly endeavoured to have her understand she had the legal obligation to provide a breath sample. Heeven told her it was her last chance or opportunity to provide a breath sample to remind her of the solemnity and finality of this exercise,and that a refuse charged was imminent.

Legal Principles [83] The offence of refusing or failing to provide a breath sample without reasonable excuse pursuant to s. 245(5) of the Code is aspecific intent offence the essential elements of which are as follows:

(1) A proper demand.

(2) A failure or refusal by the accused to provide the required sample.

(3) Recklessness or knowledge as to the need to provide a breath sample.

[84] An accused may exonerate himself or herself by raising, on a balance of probabilities, the defence of reasonable excuse. [85] Evidence of a refusal may arise from an accused’s conduct, utterances in the course of providing breath samples or from acombination of both. Refusal to provide a breath sample may be expressed or may logically be inferred from the totality of the accused’sbehaviour: R. v. Bijelic, , 77 W.C.B. (2d) 118, at para. 30 (Ont. S.C.). [86] The appellant submits that the following evidence raised a number of reasonable inferences that Ms. Erskine did notintentionally refuse to provide a breath sample:

(1) The appellant on many occasions took a deep breath continuously into the breath machine for long periods.

(2) The appellant was told by P.C. Okposio that she could take as much time as needed to provide a sample.

(3) The appellant immediately requested another opportunity to provide a sample after she was advised that the testing was over andthat she would be charged with refusing to provide a breath sample.

(4) P.C. Okposio testified that he felt the appellant’s ability to provide the breath samples was impaired by alcohol. [87] A review of the video of the breath room reveals that Cst. Okposio afforded Ms. Erskine dozens of opportunities to provide anadequate sample of her breath into the machine. On numerous occasions, Ms. Erskine blew for a very short periods even after beingadmonished by the officer. The officer tested the machine to confirm that it was working properly and demonstrated to Ms. Erskine howto provide a breath sample. It was therefore open to the trial judge to find that Ms.

Erskine had intentionally failed to provide a breathsample into the machine. [88] While Cst. Okposio advised Ms. Erskine that she could take as much time as she needed to provide a sample, he made it clear toher, on more than one occasion, that failure to do so would result in a criminal charge. After cautioning her, he gave her a number ofopportunities to provide a suitable sample but on each occasion, she stopped blowing after a short period. [89] Given the extraordinary number of opportunities which Cst. Okposio provided to Ms.

Erskine to blow into the machine, he wasunder no legal obligation to give her an additional opportunity to blow after advising her that she would be charged with refuse. [90] Finally, it is clear that Ms. Erskine’s impairment was not a bar to providing a suitable breath sample into the machine. Shesucceeded in providing a suitable sample into the machine and could have done so on a second occasion had she chosen to do so. [91] For the above reasons, this ground of appeal fails. DISPOSITION [92] The appeal is dismissed. ___________________________ André J. Released: September 30, 2015 CITATION: R. v.

Erskine, 2015 ONSC 5887 COURT FILE NO.: 11-3679 DATE: 20150930

ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – TENNILLE ERSKINE Appellant REASONS FOR JUDGMENT André J. Released: September 30, 2015