R. v. Carpenter, 2014 NSPC 122

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Carpenter, 2014 NSPC 122 Date: 20140725 Docket: 2128967-68 Registry: Dartmouth Between: Her Majesty the Queen v. Charles Anthony Carpenter Decision Judge: The Honourable Judge Frank P. Hoskins, J.P.C. Decision: July 25, 2014 Charges: That on or about the 11 th day of November, 2009, at or near Sackville, Nova Scotia, did have the care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or drug, contrary to section 253(1) (

a) of the Criminal Code . And Further That he at the same time and place aforesaid, did unlawfully have the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 253(1) (

b) of the Criminal Code . Counsel: Scott Morrison, for the Crown Wayne Bacchus, for the Defence By The Court (Orally) : Ruling on Charter Application Background [ 1 ] This is a blended trial and voir dire . The Crown and Defence sought permission of the Court to proceed in this manner in an

effort to expedite the matter. [ 2 ] The Applicant, Charles Carpenter, is charged with two impaired driving offences. [ 3 ] It is alleged that on November 11, 2009, Mr. Carpenter was in care or control of a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol, contrary to s. 253(1) (

a) of the Criminal Code , and further, that he did, at the same time, and place have care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 milliliters of blood, contrary to s. 253(1)(

b) of the Criminal Code . [ 4 ] Mr. Carpenter contends that there have been numerous violations of his Charter rights, and seeks to exclude evidence under s. 24(2) and a stay of proceedings pursuant to s. 24(1) of the Charter . [ 5 ] In essence, the factual circumstances underlying these charges arise from the observations of a concerned motorist who called 911 and reported his observations while following a car in which he believed the driver was impaired.

The concerned motorist’s observations were then instantaneously relayed to police dispatch, which then immediately relayed those observations to police officers on patrol. [ 6 ] Cst. Francis responded to the concerned motorist’s observations by intercepting the suspect car, driven by Mr. Carpenter. After stopping the car Cst. Francis approached the driver’s side of the car. After exchanging looks with the Mr. Carpenter, Cst. Francis observed that he was “a little disheveled, and his eyes were a bit droopy, he had a glazed look”. He knocked on the window of the car and directed Mr.

Carpenter to roll down the window. Mr. Carpenter did not respond. After several attempts to get Mr. Carpenter to roll down the window, Cst. Francis opened the driver’s door. Upon opening the door, Cst. Francis immediately smelled a strong odour of alcohol emanating from Mr. Carpenter, and noted that his speech was slurred. Mr. Carpenter was arrested for impaired operation and was taken into police custody. [ 7 ] The matter has been adjourned on several occasions, for the purposes of providing counsel with the opportunity to complete their respective written and oral submissions.

Having considered all of the evidence presented in the voir dire , and the extensive written and oral submissions of counsel, I will now provide my reasons for reaching the conclusions that I have regarding the following issues:

a) Whether Mr. Carpenter’s right to make full answer and defence, as guaranteed by s. 7 of the Charter, has been breached;

b) Whether Mr. Carpenter’s right not to be secure against unreasonable search and seizure pursuant to under s. 8 of the Charter has been breached;

c) Whether Mr. Carpenter’s right not to be arbitrarily detained under s. 9 of the Charter has been breached; and

d) Whether Mr. Carpenter’s s. 11(

b) Charter right to be tried within a reasonable period of time has been breached. [ 8 ] As stated, if there has been a breach, then the Defence seeks remedies under s. 24(1) and (2) of the Charter . [ 9 ] Before embarking upon an analysis of these issues, I will provide a brief

summary of the evidence, touch upon the law, and provide my factual findings.

Summary of the Evidence [ 10 ] In this blended voir dire , the Crown called four witnesses; namely, John Webber, Ronald McCulloch, Cst. Robert Taylor and Cst. Michael Francis. The Defence elected to call no evidence. The Evidence of Ronald McCulloch [ 11 ] Mr. Ronald McCulloch testified that he is 50 years of age, and is self-employed in the trucking business. He resides in Middle Sackville, Nova Scotia. [ 12 ] On November 11, 2009, sometime shortly after midnight, Mr. McCulloch dropped off a friend in a trailer park, located in Middle Sackville.

After dropping off his friend, he observed a car stopped behind his truck. The driver of that car exited the car, and vomited a couple of times, while leaning against the car. He did not recognize the man, nor does he recall the make or model of the car, or its colour. At the time he made his observation, Mr. McCulloch was approximately 50 feet away from the man. Mr. McCulloch stated that the incident seemed “a little odd, a car late at night, a man getting out vomiting. It sort of sticks out”. [ 13 ] Mr.

McCulloch described where exactly the man had vomited; it was on the driver’s side rear quarter panel of the car. “The man was standing upright, braced himself with both hands on the trunk of the car.” [ 14 ] Mr. McCulloch observed the man stagger, while holding onto the side of the car, as he appeared to have difficulty walking, and watched him enter the driver seat of the car, behind the steering wheel. Mr. McCulloch thought that the driver was impaired. The man drove the car towards the exit of the trailer park, without its headlights on. This concerned Mr. McCullough, so he decided to call 911. Mr.

McCulloch expressed his opinion that the driver drove the car “quite well”. Mr. McCulloch followed the car as it drove out of the trailer park and entered onto Highway 1. The car travelled along Highway 1, towards Mount Uniacke. The driver of the car pulled over a couple of times, and let vehicles pass, and then continued to proceed onwards. Mr. McCullough never passed the car; he stayed behind, approximately 100 feet, and observed the car. Mr. McCullough stated that the car pulled over onto the side of the road, at a complete stop, to allow vehicles to pass it on at least two occasions.

He added that he could not see any reason for the car to pull over on each occasion; other than to let the vehicles pass. Traffic volume was very light. He followed the car out onto Highway 101, as it travelled towards Halifax. At that time, Mr. McCullough thought the headlights were still off. Mr. McCullough stayed behind the

vehicle as it reached speeds of 120 to 130 kilometers per hour. Other than speed, there was nothing wrong with the manner in which the car was being driven. [ 15 ] As Mr. McCullough followed the car, he advised the 911 operator of his observations. As he was following the car, on Highway 101, he was instructed to flash his headlights, the high beams, as he approached the RCMP vehicle that was waiting down by the Mill, to identify himself and the vehicle that he was following. Mr. McCullough followed the instruction and flashed his headlights at the RCMP vehicle as he approached it.

The RCMP vehicle then reacted by pulling over the car he was following. Mr. McCullough slowed down, made eye contact with the officer, waved, and continued travelling along Highway 101. [ 16 ] Mr. McCullough testified that he had communicated his observations to the 911 dispatch while he followed the suspect car. He also described the vehicle that he drove on the date and time in question as a GMC, black pick-up truck, which contained a personalized license plate, bearing the name PRIORITY. [ 17 ] Mr. McCullough listened to Exhibit 2, which is an audio CD of the 911 call placed by himself.

After listening to the voices on Exhibit 2, Mr. McCullough identified his voice, and confirmed that it was a true and accurate recording of his conversation with the 911 dispatcher. [ 18 ] On cross-examination, Mr. McCullough stated that the car lights were initially off, but came on later during his pursuit of the car. [ 19 ] Mr. McCullough also agreed, from listening to Exhibit 2, that at one point in time during his pursuit of the car, the car he was pursuing was actually behind him, and he pulled in a driveway, and the car passed him. However, Mr.

McCullough had no recollection of actually pulling into a driveway. He also agreed that it is possible that he lost sight of the car. [ 20 ] Mr. McCullough stated he observed the man throwing-up outside of his car, sometime shortly after he dropped off his girlfriend, but could not recall where he was coming from earlier that evening. He added that he was not drinking alcohol that evening because he was driving. [ 21 ] Mr. McCullough reaffirmed that he observed the man leaning over on the quarter panel of the car as the man vomited. [ 22 ] Mr.

McCullough stated that he thought the car was speeding because he could not keep up with the car, at 100 kilometers per hour. [ 23 ] Mr. McCullough agreed that he did not indicate anything about erratic driving to the 911 dispatcher, and agreed that the driving was “pretty good.” [ 24 ] He also agreed that he at one point indicated the car was red, and that he stated DEF, not DES as the letters on the license plate. [ 25 ] Mr.

McCullough agreed that, although he could not recall saying that the car was red, after listening to Exhibit 2, he did in fact say that the car was red, but cannot remember saying it. [ 26 ] As well, he could not recall when he told the 911 dispatcher that the car lights were off, but disagreed with the suggestion that the car lights came on immediately. However, he agreed, after looking at his two page statement, which he provided to the police on November 16, 2009. [ 27 ] After listening to Exhibit 2, Mr.

McCullough agreed that initially the car lights were off, but were on when he called 911, which was approximately five or six minutes later. He stressed that his recollection of when the lights came on was a result of recalling the civic addresses, which he had heard from listening to Exhibit 2. [ 28 ] Mr. McCullough also stated that the car drove off with its lights off, but they were on when the car was at civic address, 1699. [ 29 ] After listening to Exhibit 2, Mr.

McCullough stated that the incident occurred four years earlier, and he could not recall when the car lights came on. [ 30 ] On re-direct examination, Mr. McCullough stated that the car had travelled some distance without the headlights on, he was certain about that, as he does not follow cars around in the dark for the fun of it. He estimated that the car had driven for approximately five minutes without its headlights on. The Evidence of Cst. Michael Francis [ 31 ] Cst.

Michael Francis testified that he has been a member of the RCMP for 12 years, and was employed and working on November 11, 2009. [ 32 ] While on patrol, in a marked police car, at approximately 12:25 a.m., Cst. Francis was informed of a citizen complaint of a possible impaired driver: someone driving a car pulled over and vomited. Cst. Francis was located in the Beaverbank area when he first heard the communication from dispatch. He did not attach himself to the call, as he believed two other police units had already answered the call or complaint. [ 33 ] Cst.

Francis stated that the he had heard that a man called in and stated that there was a possible impaired driver in front of him. This man explained why he was calling the police, and dispatch relayed this information to him and other police members on duty. [ 34 ] Cst. Francis further explained that dispatch relayed what was being observed by the man as he followed the suspect vehicle. Cst. Francis initially heard that the suspect car was a red Mazda, with a plate DEF 749, but that license plate number was later updated to be DES 749: one digit was corrected.

[ 35 ] Cst. Francis testified that the initial report he heard over the radio was that “a vehicle had pulled over; the driver exited and vomited on the side of the road, got back in the vehicle and drove away, without its headlights on initially. The vehicle had pulled over to allow the cars to go by him, and then would come back out onto the road, and continue on Sackville Drive, in a westbound direction towards Mount Uniacke”. [ 36 ] He added that the caller, the person following the Mazda car, was operating a black truck.

He explained that at approximately 12:36 a.m. he learned that the two other police units had not caught up to the travelling vehicles because they were in Sackville. Upon learning that, Cst. Francis, who was closer to the travelling vehicles, advised that he would pursue the two vehicles as he could travel faster on Highway 101 to Mount Uniacke than the other two police units. Thus, Cst. Francis attached himself to the call and travelled towards Highway 101.

Upon entering on Highway 101, he learned through updates that the suspect vehicle was travelling eastbound on Highway 101, towards him, and was still being followed by the caller, the complainant. He could not take notes because he was driving fast, but he stressed that he listened to the updates, as he received them from dispatch as well as on the computer. [ 37 ] Cst. Francis parked his police vehicle at the end of a concrete divide facing the opposite side of the Highway, and waited for the vehicles to approach. Shortly after parking his vehicle, he observed two vehicles approaching him in tandem.

After the first vehicle, a grey Mazda, drove past him, the second vehicle drove by him flashing its lights. Cst. Francis realized that these were the vehicles he was waiting for. As he pulled out onto the Highway, the caller, who was still communicating with dispatch stated, “he just passed you.” Cst. Francis assumed that because the second vehicle flashed its lights, high beams, at him. [ 38 ] Cst. Francis stated that the second vehicle was not far behind the grey Mazda. He added, that the second vehicle flashed his lights a bunch of times to get his attention.

The lights were flashing as the vehicle approached him, which got his attention, as he assumed it was the person following the Mazda. [ 39 ] He stated that the dispatcher advised him that they were on the phone with the caller when, the caller told dispatch that he had just passed Cst. Francis. [ 40 ] Cst. Francis stopped the Mazda, as he believed that the driver was probably impaired, but his “main goal was to see what’s going on with the driver”. [ 41 ] After Cst.

Francis caused the Mazda to stop on the side of the Highway, without incident, he walked up to the driver’s side of the Mazda. [ 42 ] It was approximately 12:40 a.m. when he stopped the Mazda. Before he approached the car, he confirmed that the license plate number was the same as that which was provided to him by dispatch. [ 43 ] Upon approaching the driver’s side window of the car, Cst. Francis assumed that the driver was going to roll down the window as drivers typically do, but the driver did not roll down the window. Cst. Francis looked at the driver, Mr. Carpenter, and Mr. Carpenter looked at him. Cst.

Francis told Mr. Carpenter to “put the window down”, but he did nothing, there was no reaction. Cst. Francis stated that he did not know what was wrong with the driver. Mr. Carpenter did not say anything; he was just “kind of looking up at me.” Cst. Francis banged on the window again, and stated to Mr. Carpenter to “put the window down”. Mr. Carpenter did not roll down the window. Cst. Francis banged on the window a couple of more times, and then opened the door, and asked Mr. Carpenter for his driver’s license and registration. As Mr. Carpenter started to speak, Cst.

Francis noted “an overwhelming smell of alcoholic beverage”. [ 44 ] Cst. Francis stated that while he was standing outside the closed window of the car, he and Mr. Carpenter exchanged looks. He described how Mr. Carpenter looked at him, by demonstrating it in Court. He stated that Mr. Carpenter “just kind of looks like this, sideways at me. I could see him. He’s looking at me. He’s not saying anything to me. I’m tapping on the window saying, ‘put the window down now.’ He doesn’t comply at any point. He never puts the window down.” [ 45 ] Cst. Francis testified that he asked Mr.

Carpenter to put down the window several times, and also tapped his knuckles on the window as well. As he struck the window with his knuckles, he repeatedly asked Mr. Carpenter put the window down. He described this moment as, “He’s looking at me. He is not yelling at me. He’s not saying anything. He’s just not doing anything.” [ 46 ] Cst. Francis stated that he made observations of Mr. Carpenter while looking at him through the window. He stated, “he’s a little disheveled, his eyes are a bit droopy. But like, he’s just… at this point, I don’t know what’s wrong with him. He’s just sitting there”. [ 47 ] Cst.

Francis also stated that Mr. Carpenter never gestured to him, nor said anything to him, that he could recall. [ 48 ] Cst. Francis was asked whether Mr. Carpenter acknowledged him in any way, and he responded, “only in the fact that we’re looking at each other but that’s it”. [ 49 ] Cst. Francis stated that during this encounter the Mazda’s engine was running. [ 50 ] Cst. Francis was asked why he opened the car door, and he responded, “because he’s not complying with me. The other officer wants to break the window. Again, at this point I don’t know what’s wrong with him.

I don’t know why he’s not opening the window, why he’s not listening to me. He’s seen me. He sees I’m police. He sees my … I mean, I have a car with a full roof light … behind me, I ‘m in uniform and, like, that I’m telling him to do it and he’s not doing it”. [ 51 ] Cst. Francis was asked what he thought his role was the moment he opened the car door, and he responded, “well, again, I believe … you know, 90 percent of me he’s probably impaired. But then the other part of me kind of goes is there something … like, is there something physically, mentally wrong with this guy?

Why is he not responding to me?” [ 52 ] After Cst. Francis opened the car door, he stated, “the first thing that hits me, like I said, is a very strong smell of alcohol in this case. I asked for his three documents I always ask for – a license, insurance, registration. He speaks but he slurred his speech a bit.

Immediately in a brief encounter, it doesn’t take long to realize that it’s not an illness or something. It’s alcohol-related, the reason he’s acting the way he’s acting. Told him he was under arrest for driving while impaired. I said, step out of the vehicle.” [ 53 ] Cst. Francis also observed that Mr. Carpenter’s shirt was “just a bit disheveled, his eyes were droopy, the alcohol was definitely coming from him. I tried to speak to him, again because I’d asked him for his license, insurance, and registration. And his words, were slurred when he spoke.

I didn’t see anything in the sense of … I don’t recall observing anything in the car, alcohol, that sort of thing.” [ 54 ] Cst. Francis was asked how long his interaction was with Mr. Carpenter, and he responded, “it was really just probably a minute or less before I realized that this is one of the rare cases where I was positive of what I believed at that time … I believed he was impaired by alcohol while driving his motor vehicle”. [ 55 ] Cst. Francis was asked what constellation of factors led him to that conclusion at that particular point in time.

His response was, “To begin with, the initial caller, the fact that the caller had stated the person had vomited. He had been pulling over to let cars pass. He had at least at one point had been driving with no headlights on. Then I like I said, once I knowingly pulled over obviously the right car, he wouldn’t respond to me, to my verbal commands of him opening the window. He just sat there with a kind a gazed look at me. He could see me even if he can’t hear me, or if there’s something wrong there. He’s not responding to me physically … or telling him to open the window.

He’s not responding to me knocking on the window telling him to open it. Like I said, when I opened the door, I mean, I could see his eyes. Like I said, his eyed were clearly half-shut, they’re droopy. His speech was slurred. Definitely smell, like I said, a very strong smell of alcohol. And like I said, he’s a little messy at that time, his shirt was disheveled.” [ 56 ] As a result of that, Cst. Francis told Mr. Carpenter to “get out of the car, your under arrest for driving while impaired. Mr. Carpenter exited the car, and asks two questions essentially.

He says, ‘Am I screwed here?’ And is there any way I can get out of this? Because I actually answer the two questions: I said, ‘you’re not screwed’, and there is no way you can get out of this.” [ 57 ] Cst. Francis also added that he had to hold Mr. Carpenter against the car because he was unable to stand against the car on his own. He stated, “so I physically had my hand to hold him from actually falling on the ground.” He further stated, that “Mr. Carpenter was not resisting, nor was he hostile, but he was about to fall to the ground”. [ 58 ] Cst. Francis then read Mr.

Francis his Charter rights, police caution, and breath demand, all of which he appeared to understand. [ 59 ] After that, Cst. Francis transported Mr. Carpenter to the Sackville detachment. Upon arriving at the detachment, Cst. Francis directed Mr. Carpenter to get out of the car. Cst. Francis described what happen in the following terms. “Again, he’s not fighting, he’s not resisting, he’s just… like, he doesn’t want to get out because he’s there now”. Cst. Francis explained what he meant by feigns, “he’s like, I can’t get out of the car kind of thing.

But he got out of his car, but he, can’t get out of my car now. He just doesn’t want to go in. Again, he’s not fighting, he’s not, like… holding on, he’s just … he doesn’t want to get out of the car. I’m like, ‘get out of the car’. He doesn’t want to get out”. Cst. Francis stated that he did not believe that Mr. Carpenter could not get out of the car, but rather he believed that he simply did not want to get out. [ 60 ] Cst. Francis did, however, eventually escort Mr. Carpenter into the detachment. Once inside the detachment, Mr. Carpenter was provided with an opportunity to consult with a lawyer.

After approximately 42 minutes, Mr. Carpenter was escorted from the private room to the breath tech room. Cst. Fraser read the breath demand again to Mr. Carpenter because the first time he did not answer him. Again, Mr. Carpenter did not answer. After Cst. Francis explained the consequences of refusal to Mr. Carpenter. Mr. Carpenter stated that he was not refusing. Cst. Francis asked him if he was going to provide a breath sample and he replied that he would. Mr. Carpenter provided two breath samples. [ 61 ] Cst. Francis, a qualified breathalyzer technician, took two samples of breath from Mr.

Carpenter, without any problems, or concerns. He then served Mr. Carpenter with the appropriate documentation. [ 62 ] Exhibit 3, the certificate, was tendered, without objection from Defence counsel. The certificate indicates that the first sample of Mr. Carpenter’s breath was provided at 1:56 a.m., and the result of the analysis was – 140 milligrams of alcohol in 100 milliliters of blood. The second sample of breath was provided at 2:15 a.m., and the result of the analysis was – 140 milligrams of alcohol in 100 milliliters of blood. [ 63 ] Following the test, preparation and service of the documents, Mr.

Carpenter was released from the custody of the police. The police called a friend of Mr. Carpenter’s, who came and picked up Mr. Carpenter. [ 64 ] On cross-examination, Cst. Francis stated that he pulled over the vehicle driven by Mr. Carpenter because of the information he received from dispatch, which included, “a possible impaired driver, including it being a red car, and been driven without its headlights on”. [ 65 ] Cst. Francis stated that he did not make notes while he was driving, but did after he placed Mr. Carpenter in the police car.

He agreed that he prepared a typed report on November 16, and that the initial report was created on November 11: it was written on the same day of the incident. The court brief was completed on November 16. [ 66 ] Cst. Francis agreed that it was his duty to keep notes as a police officer, but added “not while he is driving a car”. He agreed that there is nothing in his notes that stated that he followed the car for about 30 seconds. [ 67 ] Cst. Francis stated that he stopped Mr. Carpenter’s vehicle because of the information he received from dispatch, as this was not a random stop.

He stated that the only reason he stopped the car in question was because of the information he received from the dispatcher. He pulled the car over for investigative purposes, as the driver could have been impaired. [ 68 ] Cst. Francis agreed that he did not stop a red car with its lights out, nor for speeding. He also stressed that dispatch told him that the complainant, the caller, had just flashed his lights at him.

[ 69 ] Cst. Francis agreed that under the Motor Vehicle Act he had authority to ask for the driver’s license, insurance and etc. [ 70 ] Cst. Francis also agreed that there was no mention in his notes of Mr. Carpenter vomiting, nor in his cansay, or the Crown brief. He interviewed Mr. McCullough on November 16, when he took a written statement from him. [ 71 ] Cst. Francis disagreed with the suggestion that he first heard about the vomiting when he took the statement from Mr. McCullough. He added that he heard about the vomiting from dispatch. [ 72 ] Cst.

Francis agreed with the proposition that a person has the right to remain silent, and he agreed that he did not tell Mr. Carpenter that he was investing a DUI through the window, and that he did not read the driver the police caution through the window. The Evidence of Cst. Robert Taylor [ 73 ] Cst. Taylor testified that he has been employed as a RCMP officer, for approximately four years, and was so employed and working in that capacity on November 11, 2009, when he became involved in the matter before the court, shortly after midnight.

He was working in uniform and had operated a marked patrol car when he responded to the matter before the court. [ 74 ] He also testified that he had previously investigated approximately ten impaired operation cases. [ 75 ] Cst. Taylor stated that he was dispatched to a call of a possible impaired driver that was traveling on the highway. He and his partner were well behind the vehicle, but Cst. Francis intercepted the vehicle before he and his partner arrived. Cst. Francis was the first officer to come into contact with Mr. Carpenter. [ 76 ] Cst. Taylor testified that he never caught up to Cst.

Francis in the pursuit of the suspect car. He arrived on scene after Cst. Francis stopped the car, just prior to Exit 2, inbound, towards Halifax, which exits into Lower Sackville. [ 77 ] Upon arrival, Cst. Taylor observed Cst. Francis and the driver of the suspect vehicle walking back behind the driver’s vehicle. He stated that Cst. Francis was actually helping the driver as he was stumbling back and forth. Cst. Taylor stated, “on his own will, he couldn’t really walk behind his own car”. Cst. Taylor added that the driver of the vehicle was “stumbling back and forth as Cst.

Francis was escorting him behind the car”. [ 78 ] Cst. Taylor stated that the driver of the vehicle (Mr. Carpenter) was the only occupant of the vehicle, and that while he recalled the vehicle was a car, he could not recall its make, or model. And he could not recall the license plate number of the car. [ 79 ] Cst. Taylor described how Mr. Carpenter was stumbling, he stated, “when Cst. Francis took the driver out of the vehicle, he actually had to physically bring him back to the car. He was stumbling back and forth, almost entered onto the roadway at one point.

We were concerned about oncoming traffic, that’s why we brought him behind the car, so that he could not fall onto the roadway as he was unsure on his feet”. [ 80 ] After Cst. Francis escorted Mr. Carpenter to the back of the car, Cst. Taylor and Cst. Harding arrived on scene. As a rookie officer, Cst. Taylor assisted Cst. Francis place Mr. Carpenter in the back of the police car after he was placed under arrest. [ 81 ] Cst. Taylor stated that Mr. Carpenter did not answer Cst. Francis when asked if he wanted to speak to a lawyer. Cst. Taylor could smell liquor coming from Mr.

Carpenter’s breath, and he noted that when Mr. Carpenter spoke, his speech was slurred. He also noted that Mr. Carpenter was “wobbling, unsure on his feet”. [ 82 ] Cst. Taylor also noted that when Cst. Francis was reading Mr. Carpenter’s his Charter rights, Mr. Carpenter “past out, and he didn’t respond to any of the questions asked of him”. Cst. Taylor stated that Mr. Carpenter passed out during the drive from the scene to the detachment, however, became conscious upon arrival at the Sackville detachment.

The officer had to wake him up and assist him in getting out of the police vehicle, and he was escorted to the breath tech room inside the detachment. Constables Francis and Taylor escorted Mr. Carpenter from the car to the detachment. [ 83 ] At the detachment, Cst. Taylor stated that Mr. Carpenter was provided with the opportunity to contact legal counsel, as the officers contacted duty counsel for him. Cst. Taylor estimated that Mr. Carpenter consulted with duty counsel for approximately 40 to 50 minutes. [ 84 ] Cst. Taylor was present in the breath tech room with Mr. Carpenter. [ 85 ] Cst.

Taylor contacted a friend of Mr. Carpenter’s, who came and picked Mr. Carpenter up at the front door of the detachment. [ 86 ] On cross-examination, Cst. Taylor stated that he did not have any hand written notes of the incident, and agreed that he was “strictly” recalling his evidence from his memory. He agreed that he had spoken to Cst. Francis about the case, before taking the stand, and added that it did not help refresh his memory.

He stated that from what he had read from his report, (his supplementary report and cansay on file) he vividly remembered the file, as it was his first impaired investigation that he was involved in. [ 87 ] Cst. Taylor agreed that he did not mention that he could smell alcohol coming from Mr. Carpenter’s breath, and that he did not mention that Mr. Carpenter was “staggering or stumbling”. He added that swaying back and forth is what he would consider “staggering” when he walked as he could not walk on his own free will. [ 88 ] Cst.

Taylor also agreed that it is important to keep accurate notes, and he did not keep any hand written notes. [ 89 ] Cst. Taylor disagreed with the suggestion that all Mr. Carpenter did was sway back and forth and he was not stumbling or staggering. He stated, “it may not be documented on the file, I don’t have any written notes, but at that time, he was swaying back and forth when he stood against the police car, was staggering back and forth … staggering when he was walking. I’ m sorry, behind the

police vehicle when we were talking to him and when he physically brought him behind the car”. [ 90 ] Cst. Taylor stated that he was relying on his cansay and his memory in providing his evidence. The Evidence of Mr. John Webber [ 91 ] John Webber has been employed with the Halifax Regional Police, Integrated Emergency Services, as an Operations Manager, for eight years.

He explained that the Integrated Emergency Services is a public–safety communications center, which answers 911 calls on behalf of the Province of Nova Scotia, including the dispatch for the Halifax Regional Police, Halifax District RCMP, and Halifax Regional Fire. [ 92 ] As a civilian member, Mr. Webber is responsible for the day-to-day operations, and reports to a sworn officer, a Superintendent. [ 93 ] Mr. Webber was shown Exhibit 1, an official receipt for a requested recording prepared for staff Sergeant Peter Ferguson by Leanne Roach. [ 94 ] Mr.

Webber identified Exhibit 1 as a copy of a recording released from Integrated Emergency Services to Staff Sergeant Peter Ferguson who would have requested it, and Leanne Roach who is an Integrated Emergency Services supervisor who would have made the copy of the recording. [ 95 ] Mr. Webber explained that the record indicates Staff Sergeant Ferguson made a request for an audio for GO #09, which is the year that the incident would have occurred, and the file number would have been 166746, and it was a 911 call.

The call began on the 11 th of November 2009, at 00:20 hours, 52 seconds, and ended at the same date as minute 38 and five seconds. [ 96 ] The document is a print-off that was run by Supervisor Leanne Roach for the GO #166749. She made that request to the system on May 31, 2011. It is a printed copy of an electronic call that recorded the police incident that is a record made in the usual and ordinary course of business at Integrated Emergency Services.

All of the calls are electronically recorded. [ 97 ] Notwithstanding the Defence objection to tender the Exhibit 1, the court permitted the Crown to question the witness about its content, with the understanding that arguments about its relevancy and admissibility would occur following the witness’ evidence. [ 98 ] Mr. Webber explained the contents of Exhibit 1, which was, in essence, electronic communications from the 911 call-taker to police dispatch, which then relayed the communications either electronically or verbally to the police officers on duty. The communications originated from Mr.

McCullough and purports to be what he observed while he was following Mr. Carpenter driving his vehicle on the date and time in question. [ 99 ] Mr. Webber also testified that the police dispatch audio files are purged after two years, plus the current year, in accordance with policy. He explained that unless there is a specific request for a copy of a police dispatch recording, it is not disclosed. [ 100 ] In cross-examination, Mr. Webber agreed that the audio dispatch recordings between the police dispatcher and Cst.

Francis were available upon request in June 2011, and in October 2011, but not in July 26, 2012. Mr. Webber agreed that there was ample time to provide the audio dispatch recordings if they were requested in June 2011, or in October 2011. [ 101 ] After Mr. Webber was cross-examined, the Crown elected not to tender, Exhibit 1, over the objection of Defence counsel. [ 102 ] The Crown tendered the following exhibits: Exhibit 2, CD audio recordings; Exhibit 3, Certificate of a Qualified Technician, and Exhibit 4, correspondence between Crown Counsel and Defence Counsel, Mr. Bacchus.

Factual Findings [ 103 ] As this Court has commented many times in relation to the issue of credibility specifically, there is no category of witness who comes to court with an inherent degree of credibility built into their profession or position. [ 104 ] Although it is true that police officers have, as part of their professional responsibilities, the obligation to observe and record information that comes their way in the course of their duties, each witness, including police officers, necessarily are required to be assessed on the strengths and weaknesses of their own specific testimony and how it stacks up to the evidence that is accepted by the court. [ 105 ] There are witnesses too who may have a bias or prejudice either for or against an accused, which must be factored into what weight can be given to a witness' testimony.

There are witnesses who have very little interest in the outcome of the matter. That can contribute to the weight the witness' evidence is given. Each witness brings with them a multitude of factors which a court must look at in assessing evidence. Reliability and accuracy of witnesses' testimony is also something which, similarly, needs to be assessed on a witness by witness basis. Each witness has factors which may impact their reliability and accuracy of their testimony, which is something that can be considered independent of credibility.

A witness who is not credible will never be reliable or accurate, but a person who is well meaning and attempting to be truthful can lack reliability and accuracy. [ 106 ] I accept Cst. Francis’ evidence as being both credible and reliable. He was forthright, clear and intelligible in providing his evidence. He seemed sincere and honest in providing his evidence. He did not strike me as trying to “gild the lily”, to borrow a phrase attributed to Shakespeare. Cst. Francis seemed to have a clear and good recollection of the evidence and did not appear to embellish his evidence, in any way.

He answered all questions in a straight forward Mann er and he was not evasive, or argumentative. Further, he was consistent and corroborated, in part, by the evidence. For example, Cst. Taylor’s evidence corroborated Cst. Francis’ evidence that Mr.

Carpenter seemed to be impaired by alcohol, as both officers noted the smell of alcohol emanating from Mr. Carpenter. [ 107 ] I was particularly impressed with Cst. Francis’ condor in providing his evidence. For instance, he candidly stated that he pulled Mr. Carpenter over because he was investigating a complaint of an impaired driver, not for a specific reason under the Motor Vehicle Act , although there are provisions which address the offence of impaired operation under the Motor Vehicle Act , as there are under the Criminal Code .

He stated that he stopped the Mazda because he believed that the driver was probably impaired. [ 108 ] On cross-examination he reaffirmed this, where he stated that he stopped Mr. Carpenter’s vehicle because of the information he received from dispatch, as this was not a random stop. He stressed that the only reason he stopped the suspect car was because of the information he received from the dispatcher. Put differently, he stopped the car for investigative purposes, as he believed that driver could have been impaired. [ 109 ] Further, I should add that Cst.

Francis’ deportment on the stand in answering questions, particularly in cross-examination, was consistent with being thoughtful and careful in not leaving the court with any misunderstanding of his evidence. For example, Cst. Francis was clear and concise when he articulated his grounds for stopping Mr. Carpenter’s car, which was based on the information provided to dispatch by Mr. McCullough, the concerned motorist that followed Mr. Carpenter’s car. [ 110 ] Cst. Francis’ also readily conceded that he was frustrated with the non-responsiveness of Mr.

Carpenter, which is entirely understandable given the number of times he knocked on the window and asked Mr. Carpenter to put down the window, particularly after he exchanged looks with Mr. Carpenter, and Mr. Carpenter remained non-responsive. [ 111 ] I accept Cst. Francis’ evidence, as an experienced police officer of 12 years, that motorists usually roll down their window of their vehicle when a police officer approaches the driver’s side window, after being stopped. It was clear from his evidence that Cst. Francis felt that Mr. Carpenter should have rolled down his window after he was repeatedly asked.

Without weighing into the issue, it is noteworthy that s. 83(1) of the Motor Vehicle Act states: It shall be an offence for any person to refuse or fail to comply with any order , signal or direction of any peace officer. (emphasis added) [ 112 ] Cst. Francis also conceded that he made no notes of vomiting in his notebook, or in his cansay, but stressed that he recalled that piece of information being provided to him by the dispatcher, which is consistent with what Mr. McCullough stated in his testimony; that he told the dispatcher that the driver vomited, which was also heard on Exhibit 2. I find that Cst.

Francis evidence is corroborated, in part, by Mr. McCullough’s evidence that he told the 911 operator that he observed Mr. Carpenter vomited, and Exhibit 2, which establishes that fact. Therefore, it is reasonable to infer, given the instantaneous nature of the exchange of communications, that police dispatch advised Cst. Francis that Mr. Carpenter vomited. It is also consistent with Cst. Francis’ evidence that he stopped the vehicle because he thought the driver was probably impaired, but could be ill. [ 113 ] I am also mindful that Cst. Francis testified that he did not make notes while he was driving. Cst.

Francis disagreed with the suggestion that he first heard about the vomiting when he took the statement from Mr. McCullough, which was on November 16, the date the Crown brief was completed. [ 114 ] I find that Cst. Francis was informed by the dispatcher that the driver of the suspect vehicle vomited, notwithstanding that there was no mention of that information in his notebook, cansay or Crown brief. [ 115 ] Again, I accept Cst. Francis’ evidence as I found him to be both a credible and reliable witness. [ 116 ] I also accept Cst. Taylor and Mr.

McCullough’s evidence, as they seemed to have provided their testimony to the best of their abilities, were honest, sincere and gave their evidence in a straight forward Mann er, without being evasive or argumentative. [ 117 ] Mr. McCullough struck me as an uninterested witness, in the sense that he has no bias of any kind against Mr. Carpenter, as he does not know him or have any connection to him other than what he observed on the date and time in question. [ 118 ] Mr.

McCullough testified in a straight forward Mann er, and seemed to have a good recollection of what he observed, including what he had communicated to the 911 operator on the date and time in question. He struck me as being a confident witness, in part, because the incident seemed to have left him with somewhat of an indelible experience as he did much more than simply make a report to the police.

He took an active role in an investigation of an impaired driver, in which he carefully followed the suspect vehicle for a considerable distance while reporting his observations to the authorities, which included flashing his headlights at a police vehicle waiting to intercept the suspect driver. As he stressed in re-direct examination, he does not follow cars around in the dark for the fun of it. I accept his evidence that he followed the car because he was concerned that the driver was impaired. [ 119 ] Like, Mr. McCullough, this incident seemed to have left an indelible experience with Cst.

Taylor as this was his first impaired operation investigation. The Relevant Statutory Provisions and Common Law [ 120 ] Before conducting an analysis of the Charter issues, I will discuss the relevant legal principles as they relate to the evidence and the issues. [ 121 ] The assessment of whether Cst. Francis had the requisite reasonable and probable grounds, involves both a subjective and objective analysis.

Section 254(3) of the Criminal Code requires a peace officer to subjectively have an honest belief that the suspect has committed the offence and, objectively, reasonable and probable grounds must exist for this belief. The Supreme Court of Canada considered the meaning of a belief based on reasonable and probable grounds in R. v. Storrey , [1990], 1 S.C.R. 211 .

[122] The test is whether the circumstances that the police officer believes to be true are such as to give rise in the mind of areasonable person to be a belief in the likelihood that the accused had committed an offence under s. 253 of the Criminal Code. In otherwords, would a reasonable person similarly situated as the officer conclude that there were reasonable and probable grounds for thearrest and/or demand. This does not require the police to establish a prima facie case.

Lawful arrest does not become unlawful simplybecause the police continue to investigate after arrest, nor does it necessarily constitute a violation of s. 9 of the Charter. [123] It is trite to say that whether the police officer has met the objective standard for reasonable and probable grounds in any givencase is largely a matter of fact and there is little to be gained by comparing the facts of one case to another, given the infinite variety ofhuman activity.

In other words, determining whether there are reasonable and probable grounds is a fact based exercise dependent uponthe circumstances of the case. [124] Moreover, the existence of reasonable grounds must be based on the totality of all of the circumstances that were available to theofficer and that one could reasonably infer the officer would have known at the time the requisite belief was formed; evidence arisingsubsequently is not relevant for the purpose of determining whether the officer had reasonable and probable grounds for the belief at thetime the belief was formed. [125] The Ontario Court of Appeal decision of R. v.

Bush, 2010 ONCA 554, is very instructive as it succinctly summarizes the relevantlegal principles that must be considered. At paras. 36-38, Durno J., wrote: Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol in his orher body, the standard for an Approved Screening Device (roadside) demand pursuant to s. 254(2) of the Criminal Code.

At the otherend of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator's ability to operate a motorvehicle was impaired by the consumption of alcohol or that the driver's blood alcohol concentration was over the legal limit. Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds.

Section 254(3) of the Criminal Codeauthorizes peace officers to demand Intoxilyzer breath samples provided the officer "has reasonable and probable grounds to believe thata person is committing or at any time within the preceding three hours has committed" the offence of impaired operation or driving 'over80.' (Emphasis added.) Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima face case:see R. v. Censoni, [2001] O.J. No. 5189, at para. 31 and R. v. Shepherd 2009 SCC 35 at para, 23. Reasonable and probable grounds have both a subjective and an objective component.

The subjective component requires the officer tohave an honest belief the suspect committed the offence: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 at para, 51. Theofficer's belief must be supported by objective facts: R. v. Berlinski, (ON CA), [2001] O.J. No. 377 (CA.) at para, 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that therewere indeed reasonable and probable grounds for the arrest: R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241 at p. 250 [126] At paras. 44-48 Durno J. further observed: Doherty J.A. continues in Golub, (ON CA), [1997] O.J. No. 3097, at para. 21: In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. Theofficer must take into account all information available to him and is entitled to disregard only information which he has good reason tobelieve is unreliable: R. v. Storrey, supra, at pp. 423-24; Chartler v. The Attorney General of Québec (1979), (SCC), 48C.C.C. (2d) 34 at 56 (S.C.C.); R. v.

Hall (1995), (ON CA), 39 C.R. (4th) 66 at 73-75 (Ont. CA.); R. v. Proulx (1993), (QC CA), 81 C.C.C. (3d) 48 at 51 (Que, C.A.). On a subsequent occasion, Doherty J.A. found police in a drinking and driving investigation were involved in making quick but informeddecisions whether there were reasonable and probable grounds: see R. v. Smith (1996), (ON CA), 28 O.R. (3d) 75(C.A.). In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, 2010 ONCA 435at para. 17. It must not be inflated to the context at testing trial evidence.

Neither must it be so diluted as to threaten individual freedom: Censoni at para. 43, There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds toarrest: R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1. Impairment may be established where the prosecution proves any degree ofimpairment from slight to great: R. v. Stellato (1993), (ON CA), 12 O.R. (3d) 90 (C.A.), aff'd (SCC),[1994] 2 S.C.R. 478.

Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor functionwhether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni atpara. 47.

The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightlyimpaired by the consumption of alcohol: see R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), aff'd (SCC), [1994] 2 S.C.R. 478; Moneno-Baches, 2007 ONCA 258 , [2007] O.J. No. 1314, and Wang, 2010 ONCA435 , [2010] O.J.

No. 2490, at para. 17 [127] Justice Durno comments, at paras 55 to 56 are also apposite: In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of theofficer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection":Jacques at para. 23; also Censoni at para. 43. However, it is neither necessary nor desirable to conduct an impaired driving trial as athreshold exercise in determining whether the officer's belief was reasonable: R. v.

McClelland, 1995 ABCA 199 , [1995] A.J.No. 539 (C.A.). An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaireddriver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as theessential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable groundsobjectively existed; Censoni at para. 46.

The absence of some indicia that are often found in impaired drivers does not necessarilyundermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello (2002),22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; Wang, at para. 21. [128] Justice Durno also addressed the use of hearsay evidence in the formulation of an officer’s grounds to arrest for impaireddriving. At paras. 61 to 70, he summarized the applicable legal principles, which are instructive.

He wrote: A trained police officer is entitled to draw inferences and make deductions drawing on experience. Here, the investigating officer had 18years' experience. The trial judge was entitled to take into consideration that experience and training in assessing whether he objectivelyhad reasonable and probable grounds: Censoni at paras. 36 and 37. In addition, in determining whether reasonable and probable groundsexist, the officer is entitled to rely on hearsay: R. v. Debot, (SCC), [1989] 2 S.C.R. 1140 at p. 1167 and 1168, Costello;R. v.

Lewis (1998), (ON CA), 38 O.R. (3d) 540 (C.A.) at paras. 15 and 16; Censoni, at para. 57. In Costello, a case not provided to the

summary conviction appeal judge, Rosenberg J.A. provided an informative analysis of reasonableand probable grounds. Police were dispatched to a coffee shop on Highway 401 regarding an "intoxicated male." When the officerarrived three civilians told him "he is on the off ramp exit in the Green Thunderbird." The officer did not stop for further informationbut proceeded to the ramp and stopped the Thunderbird. The driver got out of the vehicle without difficulty and approached the officerwho noted an immediate odour of alcohol from the driver; his eyes were bloodshot and he swayed from side to side.

The officer arrestedthe driver for impaired operation. Notwithstanding that the driver did not exhibit many of the usual indicia of impairment, the trial judgefound the officer had reasonable and probable grounds to arrest the driver and make a breath demand. On his

summary conviction appeal (reported at [2001] O.J. No. 2109 (S.C.)) the court found that objectively the officer lackedreasonable and probable grounds to arrest because some of the "normal" indicia of impairment were absent and the officer had notpersonally interviewed the witnesses who had called police to report an "intoxicated male," thereby precluding the officer or the judgefrom evaluating the reasonableness or accuracy of the observation.

In restoring the conviction at the Court of Appeal, Rosenberg J.A. held that the absence of some indicators that are commonly found inan impaired driver did not undermine the finding of reasonable grounds based on the tip from the civilian, as confirmed by the officer'sown observations that the respondent was swaying, had an odour of alcohol and had blood-shot eyes. In Rhyason, where the accused struck and killed a pedestrian at a cross-walk, the arresting officer did not ask the accused how theaccident occurred or if he had been drinking.

After being at the scene for a few minutes, he arrested Rhyason who had admitted he wasthe driver who struck the pedestrian. Rhyason was crying and had bloodshot eyes, blinked slowly, was shaking and had a moderateodour of alcohol on his breath: see also R. v. Squires (2002), (ON CA), 59 O.R. (3d) 765 (C.A.). In making his or her determination, the officer is not required to accept every explanation or statement provided by the suspect: Shepherdat para. 23. That the officer turned out to be under a misapprehension is not determinative: Censoni at para. 35.

The important fact is notwhether the officer's belief was accurate. It is whether it was reasonable at the time of the arrest. That the conclusion was drawn fromhearsay, incomplete sources, or contained assumptions will not result in its rejection based on facts that emerge later. What must beassessed are the facts as understood by the peace officer when the belief was formed: R. v. Musurichan, 1990 ABCA 170 ,[1990] A.J. No. 418 (C.A.). An officer is required to assess the situation and competently conduct the investigation he or she feels appropriate to determine ifreasonable and probable grounds exist.

In some cases, that might include interviewing witnesses and/or the suspect if necessary: Golub

at para. 19. In others, the officer's observations and information known at the time may readily establish the requisite grounds. Here, the officer could have asked the respondent if he had consumed alcohol. What weight the officer attached to the answer wouldhave been for the officer to determine. If he said he had one beer or nothing to drink, the officer was not required to accept what he wastold and terminate the investigation. The officer could have asked the respondent how the accident occurred.

However, if he provided an explanation unrelated tointoxication, the officer was not required to accept the explanation and eliminate the accident from consideration. At trial, therespondent admitted that he hit the curb because he was making cell phone calls and looking up numbers as he drove. His cell phonerecords confirmed he made six calls to his girlfriend which were continually disconnecting within five minutes of the accident.Continuing to make telephone calls while driving into curbs could also be seen as a sign of impairment: see Shepherd at para. 23.

The issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officer madethe breath demand, he subjectively and objectively had reasonable and probable grounds to do so. That the belief was formed in lessthan one minute is not determinative. That an opinion of impairment of the ability to operate a motor vehicle can be made in under aminute is neither surprising nor unusual. Whether Cst.

Francis had Authority to open the Car Door [129] Before specifically addressing this issue, I will touch upon the law. [130] For the sake of argument, I have assumed that the opening of the car door by Cst. Francis was a search. The framework forscrutinizing warrantless searches for Charter compliance was summarized by the Supreme Court in R. v. Mann, 2004 SCC 52, at para.36: Any search incidental to the limited police power of investigative detention described above is necessarily a warrantless search.

Suchsearches are presumed to be unreasonable unless they can be justified, and hence found reasonable, pursuant to the test established in R.v. Collins, (SCC), [1987] 1 S.C.R. 265. Under Collins, warrantless searches are deemed reasonable if (

a) they areauthorized by law, (

b) the law itself is reasonable, and (

c) the Manner in which the search was carried out was also reasonable (p. 278). The Crown bears the burden of demonstrating, on the balance of probabilities, that the warrantless search was authorized by areasonable law and carried out in a reasonable Manner: R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30, at para. 32. [131] The first prong of the Collins test is concerned with whether the search was authorized by law and secondly whether the lawitself is reasonable. A search will be authorized by law if it is authorized by a valid police power.

It is worthy of note that police powersand police duties are not necessarily correlative. While the police have a duty investigate crime, they are not empowered to undertake anyand all action in the exercise of that duty. [132] In this case, the Crown bears the burden of demonstrating on the balance of probabilities that the warrantless search wasauthorized by the common law and that the search was carried out in a reasonable Manner. Thus, I must consider the Waterfield test acommon law doctrine, which can authorize warrantless searches providing the necessary preconditions are met.

This doctrine can bejustification for warrantless searches which arise from exigent circumstances where there is a real concern for the safety of the public orthe police. (R. v. Waterfield, 3 All E.R. 659.). [133] What will amount to exceptional circumstances justifying a warrantless search is highly contextual, and does not refer tocircumstances which rarely arise, but rather to circumstances where the state interest is so compelling that it must override a person’sright to privacy. As Rosenberg J.A., in R. v.

Kelsy, 2011 ONCA 605, at para. 35, observed: [w]hether exigent circumstances are invoked to search for evidence or to protect the public or for officer safety, it is the nature of theexigent circumstances that makes some less intrusive investigatory procedure insufficient. By their nature exigent circumstances areextraordinary and should be invoked to justify violation of a person’s privacy only where necessary. [134] It is noteworthy that the two separate and distinct basis for warrantless searches in exigent circumstances may have differentthresholds of invocation.

The first basis, which involves the preservation of evidence, requires reasonable grounds; whereas the secondbasis, for the safety of the public or the police, may require something less than reasonable grounds, such as, reasonable suspicion incertain situations, particularly where there is a lower expectation of privacy. The lower threshold may be justified in circumstances ofreal urgency or necessity that create a danger to the safety of the public or the police: a situation where there is a need for immediateaction.

In either case, however, the search or seizure must also be conducted in a reasonable Manner. [135] In the context of warrantless searches involving motor vehicles, vessels, or other movable places, for evidence, the doctrine ofexigent circumstances has been relied upon as justification for a lawful search. For example, in R. v. McKarris, (SCC),[1996] 2 S.C.R. 287, the Supreme Court of Canada found that the doctrine of exigent circumstances justified a search in circumstanceswhere a van, lawfully stopped by the police, attempted to flee the scene.

In that case, an officer detected a very strong odour of cannabisfrom the van. The officer attempted to open the door, which was locked. The accused then attempted to accelerate the vehicle and fleethe scene. [136] The second basis for the justification of warrantless searches which arise from exigent circumstances occurs when there is a realconcern for the safety of the public or the police. As Rosenberg J.A. suggests in Kelsy, the parameters of the power to search under this

branch of the exigent circumstances doctrine are somewhat vague and ill-defined, except where they have been codified by statute, andthis common law power has been largely overtaken by the Waterfield test. [137] Under this branch of the doctrine of exigent circumstances something less than the reasonable grounds standard, which isrequired under the first branch, which deals with the lost or destruction of evidence, may be justified in certain circumstances where theimportance of the police duty to protect life is justified, such as, reasonable suspicion or articulable cause, which is based on aconstellation of objectively discernible facts. [138] Thus, the power to search is constrained by a requirement of objectively verifiable necessity.

For example, in R. v. Godoy, (SCC), [1999] 1 S.C.R. 311, where the issue was whether the Charter precluded a warrantless entry into a dwelling-house inresponse to a 911 call, Lamer C.J.C., writing for a unanimous court, adopted the approach developed by Doherty J.A. in R. v. Simpson(1993) (ON CA), 79 C.C.C. (3d) 482 (Ont.

C.A.), at p.499, for assessing whether police interference with individualliberties was justified: [139] [T]he justifiability of an officer's conduct depends on a number of factors including the duty being performed, the extent towhich some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of thatduty to the public good, the liberty interfered with, and the nature and extent of the interference. [140] Similarly, although in the context of a search incident to arrest, the Ontario Court of Appeal in Golub, recognized a power tosearch a dwelling-house without warrant on the basis of a reasonable suspicion that a threat to safety existed. [141] While the court’s decision in Godoy justifies significant intrusions into privacy to investigate 911 calls, the court clearly placedlimits upon this power.

Lamer C.J.C. stressed that the intrusion must be limited to the protection of life and safety. Once the police havelocated the caller and have provided the necessary assistance, their authority for being on the property ends. They do not have authorityto extend their search or otherwise intrude on a resident’s privacy or property.

The court expressly stated that “public policy requires thatthe police ab initio have the authority to investigate 911 calls, but whether they may enter dwelling houses in the course of such aninvestigation depends on the circumstances of each case”. (Godoy, at para. 11). [142] Most recently, in R. v. MacDonald, 2014 SCC 3, the Supreme Court of Canada examined the scope of the common law ancillarypolice power to search in the context of a safety search.

The term safety search was defined by LeBel J., in writing for the majority, as asearch that is reasonably necessary to eliminate threats to the safety of the public or the police, which is conducted by the police as areactionary measure: an unplanned response to dangerous situations created by individuals, to which the police must react “on thesudden” (MacDonald, para. 32). [143] In the MacDonald case, the police responded to a noise complaint at MacDonald’s home. When MacDonald partially openedthe door, the officer observed something "black and shiny" in MacDonald’s right hand, hidden behind his leg.

The officer twice askedMacDonald what was behind his leg. Because MacDonald did not answer, the officer pushed the door open a few inches further to seeand identified the item as a handgun.

He quickly forced his way into the residence, a struggled ensued and MacDonald was disarmed ofa loaded handgun. [144] Although the court unanimously agreed that there was no violation of MacDonald’s s. 8 Charter right, because the officer hadauthority to search under the common law, and the search was carried out reasonably in all of the circumstances, there was disagreementwith respect to the requisite standard of belief that the police must have in the context of a safety search.

The minority disagreed with themajority’s conclusion that officers are only empowered to conduct safety searches where they have reasonable grounds to believe anindividual is armed and dangerous. The minority’s view is that the proper

interpretation of Mann, requires only that the officers havereasonable grounds to suspect as defined in earlier decisions of the court, such as in: R. v. Clayton, 2007 SCC 32; R. v. Kang-Brown,2008 SCC 18; R. v. A.M., 2008 SCC 19; R. v. Aucoin, 2012 SCC 66, and R. v.

Chehil, 2013 SCC 49. [145] While acknowledging that the language of Mann could have been clearer, the minority concluded that the majoritymisinterpreted Mann, and thus, deprived the police of “the limited search powers they need to protect themselves and the public in fluidand often unpredictable situations of potential danger” (MacDonald, at para. 65). [146] Presumably, this critically important issue will be specifically addressed and hopefully clarified by the Supreme Court of Canadain the near future. [147] The minority agreed, however, with the majority’s analysis in reaching the conclusion that in the context of concern for thepolice or public safety, the requirement at the first stage of the Waterfield test is easily met, which is whether the police action fallswithin the general scope of a police duty imposed by statute or recognized at common law.

If it does, then at the second stage, an inquiryis required into whether the police action constitutes a justifiable exercise of powers associated with the duty. [148] In determining whether a safety search is reasonably necessary, LeBel J. applied the factors developed by Doherty J.A., inSimpson, as discussed above. [149] If these factors, weighed together, lead to the conclusion that the police action was reasonably necessary, then the action inquestion will not constitute an unjustifiable use of police powers. Thus, both stages of the Waterfield test must be satisfied for a search tobe authorized by law.

LeBel J., also pointed out that only police actions that are reasonably necessary for the performance of an officer’sduties can be considered to be so authorized; not all related acts. This limitation imposed on the police is particularly important in thecontext of a search in a dwelling-house, which concerns a serious invasion of an individual’s privacy. While expressly acknowledgingthe importance of safety searches, LeBel J. stressed that the power to carry out the search is not “unbridled”.

He wrote, at para. 44: As for the second prong of the Collins test, it cannot be disputed that the lawful authority underlying safety searches outlined above isreasonable. Indeed, the execution of the police duty to protect life and safety lies at the very core of the existence of the police as a socialentity. Further, the law will justify the exercise of this police power only if exercising it is reasonably necessary in order for the police toconduct the safety search in question (Clayton, at paras. 21, 26 and 31). As I explained above, it is only when police officers have

reasonable grounds to believe that there is an imminent threat to their safety that it will be reasonably necessary to conduct such a search. This limit guarantees that the lawful police power is not excessively broad.

In so doing, it ensures that the law itself is reasonable and can be reasonably delineated. [ 150 ] In reaching the decision that the Mann er in which the search was carried out was reasonable, the majority emphasized that the “overall reasonableness of the search must be assessed in light of the totality of the circumstances” ( MacDonald , at para.47). [ 151 ] The first stage of the Waterfield test, police powers are recognized as deriving from the nature and scope of police duties, including, at common law, "the preservation of the peace, the prevention of crime, and the protection of life and property" . [ 152 ] The second stage of the test requires a balance between the competing interests of the police duty and of the liberty interests at stake.

This aspect of the test requires a consideration of whether an invasion of individual rights is necessary in order for the peace officers to perform their duty. This requires asking whether such an invasion is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals. [ 153 ] The reasonable necessity or justification of the police conduct in the specific circumstances is highlighted at this stage.

The necessity and reasonableness for the interference with liberty is to be assessed with regard to the nature of the liberty interfered with and the importance of the public purpose served. The Application of Principles [ 154 ] It should be noted that in conducting a Charter analysis, I am mindful that the Supreme Court of Canada in R. v. MacKenzie , 2013 SCC 50 , reaffirmed that motor vehicles, though emphatically not Charter free zones, are places in which individuals have a reasonable but reduced expectation of privacy.

Thus, mindful of that and having considered all of the foregoing legal principles, I will first address the issue of whether Cst. Franics’ opening of the car door constitutes a breach of Mr. Carpenter’s sections 8 and 9 Charter rights. [ 155 ] It is difficult to find a definition of a “search’ in the jurisprudence; rather there exist a plethora of examples or a wide range of activities that have been considered a search in the context and purposes of a criminal investigation. [ 156 ] Notwithstanding that, as previously mentioned, I will assume, for the sake of argument, that Cst.

Francis’ action of opening the car door was a search. [ 157 ] As it was in the case of MacKenzie , and is here, the basis for the detention and basis for the search are one in the same, reasonable grounds to suspect that Mr.

Carpenter was committing the offence of impaired driving. [ 158 ] Accordingly, the grounds for both the detention and the search must “sink or swim” together. [ 159 ] As previously mentioned, warrantless searches are presumed to be unreasonable unless they can be justified and hence found reasonable, pursuant to the test established in the seminal case of Collins . [ 160 ] In the present case, I have considered and applied the common law Waterfield test.

Despite the many statutory investigatory powers that Parliament has provided since the enactment of the Charter , it is well established that the courts will continue to recognize the exercise of police powers that comply with the common law Waterfield test. Where, as here, the police conduct constitutes a prima facie interference with a person’s property, the court must consider two questions:

a) Does the conduct fall within the general scope of any duty imposed statute or recognized at common law?

b) Does the conduct involve a justifiable use of powers associated with the duty? [ 161 ] As previously mentioned, the Supreme Court of Canada has considered the application of the test in several different contexts. [ 162 ] In the present case, I find that Cst. Francis was acting within the general scope of his duties to preserve peace, the prevention of crime, and the protection of life and property, in responding to a 911 call of a suspected impaired driver travelling on the public highway. When Cst. Francis detained Mr.

Carpenter it was in response to a complaint of an impaired driver, and he was required to investigate the matter to ensure that the driver of the suspect vehicle was not at risk and/or putting the public at risk by driving while impaired. [ 163 ] Having been satisfied that Cst.

Francis’ was acting within the general scope of his duties, I must consider the second stage of the Waterfield test, which requires a balance between the competing interests of the police duty and of the liberty interests at stake. [ 164 ] As stated, this aspect of the test requires consideration of whether an invasion of individual rights is necessary in order for the peace officers to perform their duty, and whether such an invasion is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals. [ 165 ] The reasonable necessity or justification of the police conduct in the specific circumstances is highlighted at this stage.

The necessity and reasonableness for the interference with liberty is to be assessed with regard to the nature of the liberty interfered with and the importance of the public purpose served, coupled with a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation. [ 166 ] I am mindful that the scope of the common law investigative detention is limited by the articulable cause or reasonable suspicion requirement, which is an initial step in the ultimate determination of whether the detention is justified in the totality of the circumstances and thus a lawful exercise of the officer’s common law powers under Waterfield .

In Simpson , the court held that articulable cause was not sustained merely by the officer’s hunch based on intuition gained by experience.

[167] The concept of necessity can be found throughout Supreme Court of Canada cases applying the Waterfield test. For example inR. v.

Dedman, (SCC), [1985] 2 S.C.R. 2 the test was described in these terms, at para. 69: [t]he interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regardto the nature of the liberty interfered with and the importance of the public purpose served by the interference. [168] In Clayton, Abella J., described the test, at para. 26 as one of “reasonable necessity”: [169] In determining the boundaries of police powers, caution is required to ensure the proper balance between preventing excessiveintrusions on an individual's liberty and privacy, and enabling the police to do what is reasonably necessary to perform their duties inprotecting the public. [170] In Mann, Iacobucci J., wrote, at para. 34: The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to bepremised upon reasonable grounds.

The detention must be viewed as reasonably necessary on an objective view of the totality of thecircumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-goingcriminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officers' reasonable suspicion thatthe particular individual is implicated in the criminal activity under investigation.

The overall reasonableness of the decision to detain,however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individualliberty is necessary to perform the officers' duty, the liberty interfered with, and the nature and extent of that interference, in order tomeet the second prong of the Waterfield test. [171] The reasonable necessity test must be applied at all stages of the exercise of the police power.

In Mann, it was necessary tomeasure the police conduct not only at the initial detention stage but as the investigation progressed. [172] Recently, the Supreme Court of Canada in Chehil, and in MacKenzie, thoroughly discussed the concept of reasonable suspicion.

The court held that in the context of detention, reasonable grounds mean reasonable grounds to suspect that an individual is involved inparticular criminal activity, which is synonymous with reasonable suspicion. [173] In considering whether a police officer possessed reasonable suspicion, I am also mindful of the majority’s observations inMacKenzie , where it was noted at para 57 that: Police officers need not be trained pharmacologists or toxicologists or medical doctors before they can give evidence on the factors thattheir training and experience has taught them provide reasonable grounds to suspect that someone is engaged in the use of drugs.

AsRichards J.A. (as he then was) observed in Yeh with respect to the recognition of drug use symptoms: ... it should be underlined that, in order to take into account a police officer's training or experience in these sorts of matters, it is notnecessary that the officer have the qualifications of an "expert" in the technical sense of being someone entitled to give opinion evidence.[Emphasis added; para. 57.] [174] The majority further explained at paras. 62 to 64: Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met.

Policeofficers are trained to detect criminal activity. That is their job. They do it every day. And because of that, "a fact or consideration whichmight have no significance to a lay person can sometimes be quite consequential in the hands of the police" (Yeh, at para. 53). Sights,sounds, movement, body language, patterns of behaviour, and the like are part of an officer's stock in trade and courts should considerthis when assessing whether their evidence, in any given case, passes the reasonable suspicion threshold.

Thus, in assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonableness should beconducted through the lens of a reasonable person "standing in the shoes of the police officer" (R. v. Tran, 2007 BCCA 491, 247B.C.A.C. 109, at para. 12; see also R. v. Whyte, 2011 ONCA 24, 272 O.A.C. 317, at para. 31). That is not to say, however, that police training and experience must be accepted uncritically by the courts.

As my colleagueKarakatsanis J. notes in Chehil, "hunches or intuition grounded in an officer's experience will [not] suffice", nor is deference necessarilyowed to a police officer's view of the circumstances because of his or her training or experience in the field (para. 47). Reasonablesuspicion, after all, is an objective standard that must stand up to independent scrutiny. [175] Later in the majority’s judgment, at paras. 71 to 74, the court summarized the following principles which are instructive: Reasonable suspicion must be assessed against the tota

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