R v Hird, 2023 ABKB 250

Court of King’s Bench of Alberta Citation: R v Hird, 2023 ABKB 250 Date: 20230426 Docket: 200628220S1 Registry: Calgary Between: Nacalla Paige Hird Appellant - and - His Majesty the King Respondent _______________________________________________________ Reasons for Judgment of the Honourable Justice M.H. Bourque _______________________________________________________ A. Introduction [ 1 ] Ms. Hird was convicted of contravening paragraph 320.14(1) (

b) of the Criminal Code , RSC 1985 c C-46 , while her blood alcohol content exceeded eighty milligrams of alcohol in one hundred millilitres of blood within two hours of ceasing to operate a conveyance. Ms. Hird appeals her conviction and raises two grounds of appeal. B. Background

[ 2 ] On June 21, 2020, at or around 6 pm, Constable Hamel, an 18-year member of the Calgary Police Service, was dispatched to a single vehicle accident near 4 th Street NE, near Hunterhorn Gate NE, in Calgary, Alberta. He arrived at the scene of a single vehicle accident and was informed that the driver of the vehicle was inside a nearby ambulance.

Although he had not spoken to anybody witnessing the traffic incident, he observed a vehicle with front end damage parked on 4 th Street NE, facing south in the northbound lanes, and a light standard was laying across the northbound lanes. [ 3 ] Constable Hamel met the Appellant as she was exiting the ambulance, asking her about the collision and for her driver’s license. She explained that she was driving north and that she had only hit the light pole. She told Constable Hamel that she was driving her boyfriend’s car and that it had wheel alignment problems from a previous collision.

She also explained that she did not have her driver’s licence on her, but that it was in her server pouch in the vehicle. She acknowledged to Constable Hamel that she was driving slightly over the speed limit. Constable Hamel smelled alcohol on her breath and noticed that her speech was slow and deliberate, explaining that Ms. Hird seemed to have to think about every word she was using.

He also described her eyes as being glazed and extra glossy. [ 4 ] Constable Hamel contacted the dispatcher to advise that the collision did not involve injuries, but that it was a likely 83, meaning an impaired driver, and that he still had to look into it. He and Ms. Hird walked over to the vehicle to get the registration and insurance. Ms. Hird entered the vehicle to search for those documents, and explained that the vehicle was insured in her boyfriend’s mother’s name. Upon noticing several beer cans in the vicinity of the driver’s seat, Constable Hamel asked for an explanation. Ms.

Hird responded by telling him that the beer cans were from the previous night. She was unable to find the insurance documents. Constable Hird asked her to go to his police vehicle, to which Ms. Hird responded “no problem at all, officer”. This is the point at which Constable Hamel formed the opinion that Ms. Hird’s ability to operate a conveyance was impaired by alcohol. At 6:30 PM, he arrested Ms. Hird for impaired driving, and at 6:32 PM, he provided her with her

section 10 right to contact a lawyer. [ 5 ] For the purposes of the present appeal, it is sufficient to say that thereafter Ms. Hird was transported to the police station, and after Ms. Hird exercised her

section 10 right, she was presented to the breath technician at 7:22 PM, who took two samples of her breath. She was released from the police station at 9:25 PM. C. Issues [ 6 ] The issues in this appeal can be distilled as follows: (

a) Did the Trial Judge err in relying on the common law business exception to the hearsay rule to conclude that the Crown had given Ms. Hird reasonable notice of the Crown’s intention to produce the Certificate of Analyst as required by subsection 320.32(2) of the Criminal Code (the “ Notice Issue ”); (

b) Did the Trial Judge correctly consider all the circumstances present to the police officer at the time that he formed his grounds to arrest Ms. Hird and demand breath samples (the “ Arrest Grounds Issue ”)? D. Standard of Review [ 7 ] The standard of review for an error of law is correctness ( Housen v Nikolaison , 2002 SCC 33 , at paras 8-37 ). While the parties disagree as to whether the Notice Issue raises a question of law or a question of mixed law and fact, they agree that it should be reviewed on the correctness standard.

With respect to the Arrest Grounds Issue, the parties agree that the question of whether the police officer had reasonable and probable grounds for arrest is reviewable on a correctness standard ( R v Shepherd , 2009 SCC 35 , at para 20 ). E. Analysis 1. The Notice Issue [ 8 ] At the commencement of her trial in Provincial Court on December 1, 2021, Ms. Hird pled not guilty to all charges against her. The trial proceeded and the parties entered a voir dire to determine the Notice Issue . The evidence consisted of an affidavit of Samantha Jerace, a legal assistant with the Alberta Crown Prosecution Service. In

summary, Ms. Jerace’s affidavit provided the following information: (

a) Through the Criminal E-file system, she was able to confirm that a one-page letter dated September 23, 2021 and a certified copy of the Certificate of Analyst was sent on September 23, 2021 by Megan Tuharsky (who signed the letter “for” the Crown Prosecutor at the trial) to Ms. Hird’s counsel by facsimile and email. Fax confirmation and read receipts were exhibited to the affidavit; (

b) The Crown’s letter refers to the Alberta Court of Appeal decision in R v Goldson , 2021 ABCA 193 , and indicates that the Crown will be tendering the relevant Certificate of Analyst at trial; (

c) The Certificate of Disclosure was contained in the disclosure that had been downloaded by Ms. Hird’s counsel on August 13, 2020. [ 9 ] At trial and in this appeal, Ms. Hird argues that the Crown has failed to prove that Ms. Hird was given reasonable notice of the Crown’s intention to tender the Certificate of Analyst into evidence. She relies on subsection 4(6) of the Criminal Code :

(6) For the purposes of this Act, the service of any document and the giving or sending of any notice may be proved (

a) by oral evidence given under oath by, or by the affidavit or solemn declaration of, the person claiming to have served, given or sent it; or

(

b) in the case of a police officer, by a statement in writing certifying that the document was served or the notice was given or sent by thepeace officer, and such a statement is deemed to be a statement under oath. [10] Ms. Hird argues that Ms. Jerace’s affidavit does not meet the requirements of that provision because Ms. Jerace is not theperson “claiming to have served, given or sent” notice.

By failing to meet the requirements of subsection 4(6), the affidavit evidence washearsay and presumptively inadmissible and that the Crown was required to prove, on a balance of probabilities, that the Appellantreceived reasonable notice of the Crown’s intention to rely on the Certificate of Analyst at trial. [11] In her decision, the Trial Judge noted that subsection 4(6) establishes a mechanism to prove notice, but that it does notpreclude other means by which notice can be given to a party.

She then stated that documents prepared in the ordinary and usual courseof business were admissible as a common law exception to the hearsay rule, citing R v O’Neil, 2012 ABCA 162 and Ares v Venner, (SCC), [1970] SCR 608. She also noted that she had invited submissions on the applicability of the common law businessrecords exception, but neither counsel had any submissions, though I note from the transcript that Ms. Hird’s counsel indicated that thecommon law business exception rule was not relevant and was not raised by the Crown.

In any event, the Trial Judge held: In this case it is clear that the exhibits attached to Ms. Jerace’s affidavit are true copies of business records forming part of the CrownProsecutor’s electronic file. As such, they are properly admissible at common law on the basis of the business records exception to thehearsay rule. ... The [R v Monkhouse, 1987 ABCA 227] preconditions are met here for the following reasons:

a) The records were original entries in the Crown’s electronic file;

b) The records were made contemporaneously;

c) The records were made in the routine of business of the Crown prosecution office’s duty to disclose all information that is not clearlyirrelevant.

d) The persons recording the information have personal knowledge of the thing required since they are Legal Assistants in the Crown’soffice;

e) As Legal Assistants, both Ms. Jerace and Ms. Tuharsky had a duty to make records as part of their responsibilities;

f) Neither Legal Assistant had a motive to misrepresent in their creation of the records. [12] On that basis, the Trial Judge held that the affidavit and exhibits were properly admitted for the truth of their contentspursuant to the common law business records exception to the hearsay rule.

In my view, the Trial Judge’s decision on the Notice Issue isunassailable. [13] Subsection 320.32(2) of the Criminal Code states: No certificate shall be received in evidence unless the party intending to produce it has, before the trial, given to the other partyreasonable notice of their intention to produce it and a copy of the certificate. [14] I agree with the Trial Judge that subsection 4(6) provides a mechanism by which to prove notice was given, but that it is notmandatory. I also agree with Ms. Hird’s counsel that Ms.

Jerace’s affidavit of service did not strictly meet the criteria of subsection 4(6)because Ms. Jerace was not the sender of the notice. That said, all that is required by subsection 320.32(2) is that reasonable notice begiven before a certificate can be produced in evidence, and it does not state in what form notice is required to be given. Regarding thepurpose of notice provisions, in R v Good (1983), 1983 ABCA 141 , 44 AR 393, McClung J.A. explained that: The real test is that the notice must be reasonable in time and substance and must not be misleading, confusing or otherwise prejudicial.

Itmust clearly and precisely bring home to the accused that the certificate may be used in relation to a charge arising from the incident. [15] In R v Redford, 2014 ABCA 336, Justice Paperny put it this way (at para 41): ... What is important, functionally, is that before trial, the [accused] receives a copy of the certificate and reasonable notice that it will betendered as evidence by the Crown. This requirement is to ensure that the accused can make full answer and defence.

Compliance canbe accomplished in numerous ways, including by personal service or through counsel by means of disclosure as required by R vStinchcombe, (SCC), [1991] 3 SCR 326. [16] I see no error in the Trial Judge’s reliance on the common law business exception rule and in accepting the evidence in Ms.Jerace’s affidavit for the truth of their contents. The affiant relied on business records prepared and maintained by the Crown prosecutionservice. That the records were prepared by persons in the Crown’s office other than Ms.

Jerace did not convert them into inadmissiblehearsay (Reece v Edmonton (City), 2011 ABCA 238 at para 100, per Fraser CJ, dissenting). The affidavit of Ms. Jerace providesuncontradicted and credible evidence that the notice letter and the Certificate of Analyst was faxed and emailed to Ms. Hird’s counsel.Moreover, Ms. Hird did not make an application to cross-examine Ms. Jerace on her affidavit. [17] For these reasons, the Trial Judge was correct in concluding that Ms.

Hird had received reasonable notice of the Crown’sintention to rely on the Certificate of Analyst and that the condition of admissibility in subsection 320.32(2) was met. Accordingly, thefirst ground of appeal is dismissed. 2. The Arrest Grounds Issue

[ 18 ] Following the Trial Judge’s decision regarding the Notice Issue , the parties entered a blended voir dire to determine a number of issues, including whether Constable Hamel possessed objectively reasonable grounds for arresting Ms. Hird and demanding that she provide samples of her breath to a qualified technician at the police station.

Constable Hamel was the only witness called in this voir dire and he completed his testimony on December 1, 2021. [ 19 ] On February 22, 2022, the parties reconvened before the Trial Judge to make submissions on the issues in the blended voir dire , including the Arrest Grounds Issue . On March 16, 2022, the Trial Judge rendered an oral decision on these issues, including the Arrest Grounds Issue. Her reasons include the following: First,

summary of the evidence. On June 21st, 2020, Constable Hamel, an 18 year member of the Calgary Police Service, was dispatched to a single vehicle collision on 4 Street Northeast and Hunterhorn Gate Northeast, in Calgary, Alberta. When he arrived at approximately 6:19 PM, he observed a vehicle with damage to its front end facing south in the northbound lane of 4th Street and a light pole lying across the road. He was advised by one of the firemen that the driver of the vehicle as [ sic ] in the ambulance. Constable Hamel met Ms.

Hird as she exited the ambulance and he asked for information about the collision and for her driver’s license. Ms. Hird explained which way she was driving and explained that she swerved and believed that she had only hit the light pole. She explained that she was driving her boyfriend's car and it had wheel alignment problems from a prior accident. She explained that she did not have her drivers license on her because it was in her server pouch in her car. She claimed to have been going a little above the speed limit.

Constable Hamel could smell alcohol on her breath and noticed that her speech was slow and deliberate. In cross-examination, he explained that she seemed to have to think about every word she was using. He described her eyes as being glazed and extra glossy. When he radioed the dispatcher to advise that the collision did not involve any injuries, he mentioned that he had a “likely 83”, but still had to look into that. The reference to 83 meant an impaired driver. He escorted Ms. Hird to the vehicle to get the registration and insurance period she got into the vehicle and began to look for the documents.

She explained that the vehicle was insured in her boyfriend's mother's name. Upon noticing several beer cans in the vicinity of the driver’s seat, Constable Hamel asked Ms. Hird if she wanted to explain the empty beer cans. She told him that the beer cans were from the previous night. She continued to look for the insurance documents without success. Constable Hamel then told her, “Come with me, you will go to my police car.” She responded, “No problem at all, officer.” Constable Hamel’s evidence was at the point he asked her to go to the police vehicle, he had formed his opinion that Ms.

Hird’s ability to drive was impaired by alcohol. At 6:30 PM, he arrested her for impaired driving. ... ... In terms of the legal issues and analysis, the first issue is whether Constable Hamel had objective reasonable and probable grounds to arrest Ms. Hird. The related and second issue is whether Constable Hamel had reasonable grounds for the Criminal Code breath demand. In terms of the legal principles, the principles of law in relation to this issue are not in dispute.

The taking of a breath sample is done without warrant and, therefore, the seizure is presumptively unreasonable and the Crown has the onus to justify the search. Reasonable and probable grounds are described as the point where credibly based probability replaces suspicion. Reasonable grounds require that the officer subjectively believed that he has reasonable grounds in those grounds must be objectively justifiable.

This means that a reasonable person placed in the position of the officer must be able to conclude that there were reasonable grounds for the arrest, however, the police do not need to demonstrate anything more than reasonable and probable grounds. A prima facie case is not required. The determination as to whether there were reasonable grounds is a fact-based exercise dependent on the circumstances of the case. An investigator must consider all circumstances known to him, but he's not required to accept innocent explanations.

When assessing whether an investigator’s grounds were objectively reasonable, a judge may consider that officer’s training and experience, although is not required to accept the opinion of even an experienced officer. Judges must consider the totality of the circumstances and decide whether the information the officer had amounts to reasonable grounds. It's an error in law for a judge to test individual pieces of evidence when assessing whether reasonable grounds existed. Ms. Hird concedes that Constable Hamel had subjective grounds to arrest her and make the breath demand.

The issue is whether a reasonable person placed in Constable Hamel’s position would conclude there were reasonable grounds to arrest Ms. Hird for impaired driving and demand she provides samples of her breath. In this case, Constable Hamel arrived on the scene of a single motor vehicle collision with the vehicle facing south in the northbound lanes. A light pole was lying across the street and the front end of the vehicle was damaged. Ms. Hird admitted to driving faster than the speed limit while knowing the vehicle had wheel alignment problems. When Constable Hamel spoke to Ms.

Hird, he noted an odour of alcohol coming from her breath. Her speech was noticeably slow and deliberate. She was particularly thoughtful in every word she used. Her eyes were glazed and glossy. She had no difficulty walking or standing. The body-worn camera video evidence supports Constable Hamel’s observations. When Ms. Hird was looking for the insurance and registration in the vehicle, Constable Hamel noticed a number of beer cans in the vicinity of the driver’s seat. She explained the beer cans were from the night prior.

After seeing the beer cans and considering her explanation, Constable Hamel concluded he had reasonable grounds to believe Ms. Hird’s ability to operate the motor vehicle was impaired by alcohol. Constable Hamel had been involved in approximately 30 to 40 prior impaired investigations and had dealt with impaired individuals on numerous occasions throughout his 18 year career. Ms. Hird was speeding and drove a vehicle off the road, hitting a light pole with enough force to knock it over. After the collision, the vehicle ended up facing opposite her original direction of travel. There were beer

cans in proximity to the driver’s seat. She had an odour of alcohol on her breath and she spoke in an artificially deliberate manner. Hereyes were glossy. Based on the totality of the circumstances and considering Constable Hamel’s prior experience with impairedindividuals, it was objectively reasonable for him to believe that Ms. Hird had been driving while impaired. Based on this analysis,Constable Hamel also had reasonable grounds to demand samples of her breath pursuant to the Criminal Code. [Transcript of proceedings, March 16, 2022, page 2, line 9 to page 5, line 16] [20] The issue in this

summary conviction appeal is whether the findings of fact made by the Trial Judge were sufficient to supporta finding that Constable Hamel had reasonable and probable grounds to arrest Ms. Hird and to demand that she provide samples of herbreath. Ms.

Hird argues that the Trial Judge erred in finding that “the slim evidence of indicia of [impairment] was sufficient to qualifyas objectively reasonable grounds for arrest and breath demand” and that the Trial Judge failed to consider relevant evidence and that herdetermination was unreasonable. [21] It is undisputed that when a person is arrested without a warrant, the Criminal Code requires the arresting officer to believe,on reasonable grounds, that the person has committed an offence.

Furthermore, a warrantless seizure of breath samples is prima facieunreasonable, and the Crown has the burden to satisfy a court that the taking of breath samples complied with subparagraph 320.28(1)(a)(i). This provision requires the officer to have an honest subjective belief that the person has committed an offence under

section 320.14,and there must be reasonable grounds for this belief on an objective basis (Shepherd, para 17). In order for the officer to have areasonable belief that an offence was committed under

section 320.14, the officer must reasonably believe that the person’s ability tooperate a motor vehicle was impaired by alcohol. Importantly, the existence of these grounds must be based on facts known to the officerat the time the officer formed their grounds.

In other words, the test is limited to the facts that are within the knowledge of the arrestingofficer when the officer formed those grounds. [22] In R v Bernshaw, (SCC), [1995] 1 SCR 254, a majority of the Supreme Court of Canada explained that thetest for reasonable and probable grounds has both a subjective and objective component, and that (at para 46) “[t]he decision as towhether a peace officer believes on reasonable and probable grounds that an offence is being committed and, therefore, that a demand isauthorized ... must be based on the circumstances of the case”, concluding that it was essentially a question of fact and not one of purelaw (at para 46). [23] In R v Rhyason, 2007 SCC 39 , [2007] 3 SCR 108, the Supreme Court of Canada considered whether a motorvehicle accident could be considered in the assessment of an officer’s reasonable and probable grounds.

Although the Court divided onthe result, there was agreement that the circumstances of an accident can be taken into account in determining whether an officer had therequisite grounds. Writing for the majority, Abella J. held (at paras 18-19): Of additional relevance are the two paragraphs immediately following the two impugned sentences.

The trial judge found the accident tobe significant, noting that “[i]f Constable Stevens had merely detected signs of alcohol consumption in the absence of an accident, theremay have been a valid argument to the effect that evidence of alcohol consumption does not itself constitute evidence of impairment”(para. 25 M.V.R.).

As the trial judge observed, there is abundant jurisprudence confirming that the circumstances of an accident can betaken into account, along with other evidence, in determining whether an officer had reasonable and probable grounds to arrest anindividual for impaired driving. (See, for example, R. v. Eliuk (2002), 299 A.R. 364, 2002 ABCA 85, at para. 12; R. v. Pedersen (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. [24] Writing in dissent, Charron J. agreed with Abella J. that the circumstances of an accident can be considered in assessingwhether the police officer had the requisite grounds, but only if the accident formed part of the evidential basis upon which the policeofficer based his demand. Charron J. explains (at para 28): ...

I agree with my colleague that the circumstances of an accident, along with other evidence, can be taken into account in determiningwhether an officer had the requisite grounds. What defeats the argument here is that the circumstances of the accident did not form partof the evidential basis upon which Constable Stevens based his demand. Had Constable Stevens given evidence about his observationsof the scene of the accident, and relied on inferences drawn from those observations as part of his basis for making his demand, thesituation might have been different.

But Constable Stevens nowhere said that an “accident with no other obvious cause” formed part ofhis grounds for believing that an offence had been committed. In addition, the evidence reveals that, at the time Constable Stevensarrested Mr. Rhyason and demanded that he provide breath samples for analysis, the officer had been at the scene for about twominutes. Other than being advised that the pedestrian had died, there is no evidence that the officer had received any information abouthow the accident happened.

What is at issue here are the officer’s reasonable and probable grounds at the time of making the demand,not the ex post facto inferences that can be drawn from the evidence at trial. [25] Ms. Hird argues that the evidence before the Trial Judge was insufficient to establish that the arresting officer had reasonableand probable grounds to arrest her and demand the breath samples.

More specifically, she argues that (1) the evidence accepted by theTrial Judge did not rise to the required level for objective reasonable and probable grounds and that (2) the Trial Judge failed to considerrelevant evidence presented at trial. [26] In support of her position, Ms. Hird cites cases such as R v Baltzer, 2011 ABQB 84, R v Waters, 2010 ABQB 607, and R vTosczak, 2014 ABQB 86.

In Baltzer, Graesser J. held that the arresting officer had reasonable and probable grounds where the followingsigns of impairment existed: confusion, a heavy odor of liquor, glassy blood-shot eyes, slurred speech, and two instances of the accusedfumbling with documents. In Waters, the arresting officer observed a vehicle driving through an intersection with no lights on. Afterpulling the driver over, the officer also observed that vehicle registration had expired. When the arresting officer leaned close to Mr.

Waters to show him the expired operator’s licence, the Constable smelled alcohol on Mr. Waters’ breath. He had also earlier noticed that Mr. Waters had glossy eyes. In those circumstances, Kenny J. held that the arresting officer did not have reasonable and probable grounds to arrest or demand a breath sample, finding the indicia of impairment lacking.

Lastly, in Tosczak , Ross J. held that the arresting officer did not have reasonable and probable grounds to arrest or demand a breath sample, where they observed the accused’s vehicle “slightly” crossing over lane markings, the strong smell of alcohol on the accused’s breath, a slow mumbled speech and the fumbling with the driver’s licence. The accused was also observed having a dry mouth, which the arresting officer associated with consumption of alcohol.

None of the cases cited involved an unexplained accident and they each turn on their own constellation of facts. [ 27 ] Based on the reasoning in R v Ha , 2018 ABCA 233 , I am required to consider the entire constellation of facts and assess, from an objective point of view, whether the grounds were justifiable such that a reasonable person placed in the position of the arresting officer would conclude that there were reasonable and probable grounds for the arrest. [ 28 ] In my view, there was no error in the Trial Judge’s fact finding or in her application of the law to the facts.

I would have arrived at the same conclusion. The Trial Judge accepted Constable Hamel’s evidence that he arrived on the scene of a single motor vehicle collision with the vehicle facing south in the northbound lanes, that the front end of the vehicle was damaged, and that a light pole was lying across the street. Ms. Hird admitted to Constable Hamel that she was driving faster than the speed limit while knowing that her vehicle had alignment problems. She accepted Constable Hamel’s evidence that he noted an odour of alcohol coming from Ms.

Hird’s breath, that her speech was noticeably slow and deliberate in that she was particularly thoughtful with each word used. She also accepted Constable Hamel’s observation that Ms. Hird’s eyes were glazed and glossy, though she had no difficulty walking or standing, noting that his body-worn camera video evidence supported his observation. She also pointed to Constable Hamel’s observation of a number of beer cans in the vicinity of the driver’s seat, and accepted that after hearing Ms.

Hird’s explanation that the beer cans were from the previous night, he nevertheless concluded that he had reasonable grounds to believe that Ms. Hird’s ability to operate the vehicle was impaired by alcohol. Lastly, the Trial Judge referred to Constable Hamel’s involvement with numerous impaired individuals during his 18-year career. Considering this constellation of facts and Constable Hamel’s previous experience with impaired drivers, the Trial Judge concluded that it was objectively reasonable for him to believe that Ms. Hird had been driving while impaired. [ 29 ] The main argument raised by Ms.

Hird is that the indicia of impairment available at trial did not give the arresting officer reasonable grounds to believe that her ability to drive was impaired. However, in my view, her argument in this regard amounts to “an over-analytical parsing of events into static moments without a practical regard for the overall picture” ( Ha , at para 39 , citing R v Amofa , 2011 ONCA 368 at para 19 ) and fails because it also amounts to testing individual pieces of evidence offered to establish the existence of reasonable and probable grounds ( R v Huddle , 1989 ABCA 318 at para 9 ). [ 30 ] Ms.

Hird acknowledges that Constable Hamel observed evidence of consumption of alcohol, having detected an odor of alcohol on her breath. However, she attempts to minimize the probative value of that piece of evidence because Constable Hamel admitted on cross-examination that an odor of alcohol on a person’s breath does not indicate they are impaired by alcohol. Similarly, she submits that there was no evidence at trial as to the cause of the accident.

She points to her explanation that it occurred because she was speeding and the vehicle had wheel alignment issues, and that the arresting officer admitted it was possible that these could have been the cause. Constable Hamel was not required to conclusively determine the cause of the accident in formulating reasonable and probable grounds for the arrest, but it was certainly open to him to consider and rely on the fact of the presence of an unexplained accident as one of factors to formulate his grounds ( Rhyason , at para 19 ). Ms.

Hird also attempts to minimize the evidence of her slow and deliberate speech that was particularly thoughtful in every word she used by pointing to the arresting officer’s admission that he had never spoken to her before.

Lastly, she points to the “simple observation of [beer] cans in the vehicle” is not direct evidence that her ability to operate the motor vehicle was impaired by alcohol, and that her explanation that the cans were from the night before from her and her friends amounts to equivocal evidence of impairment. [ 31 ] In my view, the Trial Judge applied the correct approach by examining the constellation of facts and the overall factual matrix available to Constable Hamel at the time he formulated and crystallized his grounds, which he did immediately after observing the beer cans in the vehicle in the vicinity of the driver’s seat.

By this stage, Constable Hamel had arrived on the scene of an unexplained single vehicle accident, with the vehicle driven by Ms. Hird facing south in the northbound lane. He observed front-end damage to the vehicle, and a light standard pole was lying across the street. Ms. Hird admitted that she was speeding, notwithstanding that the vehicle, according to her, had wheel alignment problems. Constable Hamel noted an odour of alcohol in Ms. Hird’s breath. He also found her to be particularly thoughtful in every word she used. He observed that Ms.

Hird’s eyes were glazed and glossy, though he also observed that she had no difficulty walking or standing as they moved towards the vehicle. As Ms. Hird looked for the vehicle registration and insurance certificate, Constable Hamel was able to observe several beer cans in the vicinity of the driver’s seat. Despite her explanation that the beer cans were from the night prior, he nonetheless concluded, on the totality of his observations up to that point, that he had reasonable and probable grounds to believe that Ms. Hird’s ability to operate the motor vehicle was impaired.

Considering this constellation of facts, like the Trial Judge, I have no difficulty in concluding that it was objectively reasonable for Constable Hamel, with his 18-year career and experience with impaired drivers, to believe that Ms. Hird had been driving while impaired. [ 32 ] Ms. Hird also argues that the Trial Judge did not consider relevant evidence in considering whether the arresting officer had objective reasonable and probable grounds that her ability to operate a motor vehicle was impaired by alcohol.

She says that the Trial Judge erred in her analysis by failing to consider such relevant evidence. [ 33 ] She argues that the Trial Judge did not consider Constable Hamel’s evidence that it was not his practice to use any form of roadside screening device in a traffic stop or investigation, explaining that he either arrested the driver or gave them a 24-hour suspension. Although he was qualified to operate a roadside screening device, in his testimony, he could not recall whether he had a screening device with him on the date in question. Ms.

Hird argues that this testimony was highly relevant “as it demonstrated that his general practice was to arrest a driver without properly turning his mind to the totality of the circumstances” and that Constable Hamel’s testimony “demonstrated that he was unwilling to utilize the tools provided to him by Parliament when he suspected that a driver had alcohol in their body and when he was unsure about whether their ability to operate a motor vehicle was impaired by alcohol”.

I agree with the Crown’s submissions on this point that the determination of objectively reasonable grounds lies not in the possible alternate avenues of proceeding with an investigation, but rather the whole of the circumstances before the arresting officer. It does not follow that because Constable Hamel does not generally avail himself of a screening device in cases of suspicion that he invariably would have

arrested Ms. Hird without turning his mind to the totality of the circumstances in formulating grounds for arrest. [ 34 ] Ms. Hird also argues that the Trial Judge failed to consider evidence observed by the arresting officer that was favourable to her and that, in particular, showed a lack of an impaired ability to drive. She points to Constable Hamel’s observations that while he interacted with her and asked her about the collision, as well as the whereabouts of her driver’s licence, she provided articulate and clear answers to his questions.

She also argues that she had described that the vehicle’s alignment had an issue “in some detail”. In my view, the Trial Judge’s reasons, read as a whole, demonstrate that she assessed, acknowledged and considered all exculpatory evidence, in the context of determining that Constable Hamel had reasonable and probable grounds. [ 35 ] Lastly, at the hearing of this

summary conviction appeal, Ms. Hird raised, for the first time, that the Trial Judge also should have considered the prevailing whether conditions of that day as well as the condition of the road. In this regard, I agree with Crown Counsel’s response that it would be inappropriate on appeal to consider arguments that were not put to the Trial Judge, particularly in the absence of findings of fact pertaining to the weather and conditions of the road. [ 36 ] For all these reasons, the second ground of appeal is dismissed. F. Disposition [ 37 ] The

summary conviction appeal is dismissed. Heard on the 13 th day of January, 2023. Dated at the City of Calgary, Alberta this 26 th day of April, 2023. M.H. Bourque J.C.K.B.A. Appearances: Moira S. McAvoy for the Appellant Robert Marquette for the Respondent