R. v. McKinnon Date:, 2012 BCPC 224

Citation: R. v. McKinnon Date: 20120706 2012 BCPC 0224 File No: 85511-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RONALD WILLIAM McKINNON RULING ON VOIR DIRE OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: A. Blunt Counsel for the Accused: L. Kompa Place of Hearing: Port Coquitlam , B.C. Date of Hearing: February 24 and March 19, 2012 Date of Judgment: July 6, 2012

INTRODUCTION [ 1 ] The accused, Ronald William McKinnon (“Mr. McKinnon”), faces charges under Information 85511-1 that, on or about July 18, 2010, at or near Coquitlam, British Columbia, he committed the offences of impaired driving and refusal to comply with a breath demand, contrary to sections 253(1)(

a) and 254(3)(a)(i), respectively, of the Criminal Code . The Crown proceeds against Mr. McKinnon summarily and he has entered pleas of not guilty to both charges. [ 2 ] Mr. Kompa, counsel for Mr. McKinnon, has identified the question of whether the investigating officer—Cst. Matt Saikali of the Coquitlam detachment of the RCMP (“Cst. Saikali”)—had proper grounds to make a breath demand of Mr. McKinnon as a preliminary issue with both s. 254(3) Criminal Code and Charter implications.

Accordingly, at his request I declared a voir dire at the commencement of trial. [ 3 ] The evidence of three Crown witnesses has been received thusfar. They are a civilian, Julie-Ann Fournier (“Ms. Fournier”), Cst. Saikali and breathalyzer technician Cst. Pamela Neuman (“Cst. Neuman”). However, only the evidence of Cst. Saikali and Ms. Fournier bear directly upon the issue raised in the voir dire . [ 4 ] No defence evidence was called during the voir dire . [ 5 ] Mr. Kompa expressed a desire to have counsel place argument on the voir dire before the court in written form. I acceded to that request.

Based upon my review of the evidence adduced and the written submissions of counsel, I shall now rule on the threshold question of whether Cst. Saikali had reasonable grounds to administer a breath demand to Mr. McKinnon in the early morning hours of July 18, 2010. [ 6 ] Before doing so I must comment upon certain matters that are not covered in this voir dire ruling. [ 7 ] Mr. Kompa’s lengthy written submissions came freighted with some content that does not lie within the confines of what is properly determinable by me when ruling on this voir dire . For example: (

a) He provided written submissions on the question of count 1—the impaired driving charge. However, as Mr. Blunt rightly argues, that issue is not properly before me on the voir dire . Neither the Crown nor the defence cases in the trial overall have been formally closed—indeed, July 25 th has already been fixed as the date for the continuation of the trial following my ruling—and so I decline to address count 1 in this voir dire ruling; and (

b) He provided written submissions on the question of whether a lawful excuse, rooted in his contention that the breath demand made by Cst. Saikali was unlawful , is available as a defence to Mr. McKinnon to resist the “refusal to blow” charge. Mr. Blunt again rightly argues that the lawfulness of the breath demand is a threshold consideration and that that threshold consideration is all that is properly before me on the voir dire . Mr. Blunt’s point is that argument on the subject of what, if any, lawful excuse may be available to Mr. McKinnon is premature at this point. I agree.

I therefore also decline to address the consequences that might flow from my ruling on the voir dire , not knowing whether further evidence will be called, by Crown or defence at large within the trial, in circumstances where not even the Crown has yet closed its case. [ 8 ] Lastly, I should note that while passing reference was made by Mr. Kompa to the possibility that a s. 9 Charter issue might be raised on Mr. McKinnon’s behalf, as Mr. Blunt rightly points out, no such argument ultimately figured in any way in Mr. Kompa’s written submissions on the voir dire .

Therefore, subject to my hearing something to the contrary when the trial of Mr. McKinnon’s charges resumes, I shall consider the possible unlawful detention argument to be abandoned and say nothing more on the subject. THE FACTS [ 9 ] The facts underlying the controversy regarding the lawfulness of the breath demand that Cst. Saikali made of Mr. McKinnon are generally uncontroversial. What is in controversy is whether the indicia of impairment revealed by those facts, viewed in the context of all the relevant circumstances, furnished Cst.

Saikali with reasonable grounds to make a breath demand of the accused. [ 10 ] The relevant facts, as I have found them, are these: (

a) Civilian witness Ms. Fournier had consumed some alcohol over the course of the evening in question and so, shortly after 1:00 a.m. on July 18, 2010, she was preparing to take a taxi home from Woody’s Pub in Coquitlam. She could not recall whether food was on offer at the pub, or whether there were restaurants in its vicinity; (

b) While waiting in the pub parking lot for her taxi Ms. Fournier observed a person whom she suspected was intoxicated. That person was the accused, Mr. McKinnon. She only saw him in the parking lot. She had not seen him earlier in the pub itself; (

c) Ms. Fournier’s suspicions about Mr. McKinnon were based upon observations she made of him at close range. He walked with a very slow gait as he approached his pickup truck—which was parked near a taxi rank—and climbed into the driver’s seat next to his passenger. She could not recall seeing the passenger enter the pickup. (

d) Being concerned about his sobriety and his ability to drive safely, Ms. Fournier offered Mr. McKinnon her cab as an alternative way for him to travel to his destination but he said nothing in response to her offer. He did not even acknowledge it; (

e) While standing near the driver’s door of the pickup truck Ms. Fournier extended her offer to give Mr. McKinnon her cab a second time. That offer was not acknowledged either. Then Mr. McKinnon vomited out the driver’s window of his pickup truck. Vomit streamed down the outside of the driver’s door, struck the ground and spattered Ms. Fournier’s feet;

(

f) Mr. McKinnon thereafter started the engine of his truck and drove out of the parking lot and turned south. While Ms. Fournier watched him do this she placed a 911 call to report him as a suspected drunk driver. She took note of the truck’s license plate number and of the vehicle’s general appearance and reported that information to the 911 operator along with Mr. McKinnon’s direction of travel; (

g) The 911 dispatcher transmitted Ms. Fournier’s civilian report of a suspected impaired driver to police by radio. Over the air she mentioned that the driver of a pickup truck had been seen to vomit before driving out of the Woody’s Pub parking lot; she also gave a description of the truck and relayed its license plate number; (

h) Cst. Saikali happened to be patrolling in the area. At the time, he was a relatively junior officer, having served for only two years on the force and having conducted only five previous impaired investigations himself; (

i) Cst. Saikali heard and responded to the dispatch and began to search for a pickup truck with the identifying features that Ms. Fournier had reported to the 911 operator; (

j) Little time passed before a vehicle matching the description given by the 911 operator came into Cst. Saikali’s view. It was stopped at a light controlling the intersection of Austin Avenue and Blue Mountain Street, facing north on Blue Mountain. Cst. Saikali’s police vehicle was stopped at the same intersection, facing south, on Blue Mountain; (

k) When the traffic control light changed to green, Cst. Saikali executed a U-turn and began to follow Mr. McKinnon’s pickup truck in its northward progress on Blue Mountain; (

l) But for two noteworthy lapses, the way Mr. McKinnon drove the pickup—as described by Cst. Saikali—was unremarkable. For example, there was nothing objectionable about the way he left the Blue Mountain/Austin intersection, or made a lane change shortly thereafter. However, when Mr. McKinnon made a right turn from Blue Mountain to proceed east on King Albert Avenue, Cst. Saikali noted that the turn radius he employed was a very wide one with the result that for a short distance Mr. McKinnon’s pickup truck proceeded eastward in the middle of King Albert. Then, when Mr.

McKinnon reached the four-way stop at the intersection of King Albert and Nelson Street, the officer observed that he did not stop as required with his front wheels resting at the stop line. Rather, his pickup truck rolled over the stop line and finally came to a halt with its rear wheels resting on it. Thus, part of the pickup truck, once stopped, projected into the intersection and into the lane that southbound traffic on Nelson would use when passing through it; (

m) Soon after Mr. McKinnon’s vehicle resumed its eastward travel on King Albert with Cst. Saikali’s police cruiser following behind it, Cst. Saikali activated his emergency equipment and effected a traffic stop. Mr. McKinnon complied with the traffic stop by pulling over safely and uneventfully; (

n) When he approached the driver’s side of the stopped pickup truck, Cst. Saikali found that Mr. McKinnon, seated in the driver’s seat, already had his driver’s license in his hand. When asked where he was coming from, Mr. McKinnon confirmed that he had come from Woody’s Pub, but added that he had had nothing to drink; (

o) Cst. Saikali saw vomit on Mr. McKinnon’s face, clothing and on the outside of the driver’s door of his pickup. He also noted that Mr. McKinnon’s eyes were bloodshot, his face was flushed and his speech was slurred. Cst. Saikali noted a strong odour of alcohol and, when Mr. McKinnon stepped out of the truck, the officer confirmed that that odour was emanating from Mr. McKinnon’s breath. He did not recall the odour of the vomit; (

p) When directed to walk back toward the police car on the flat asphalt surface at scene, Mr. McKinnon—who was wearing flat bottomed flip-flop sandals—moved very slowly with his hands in his pockets. His gait revealed a left-leg limp. Cst. Saikali followed slowly behind him, making observations; and (

q) Based upon all of his observations, together with what had been relayed to him by the 911 dispatcher, Cst. Saikali formed the opinion that Mr. McKinnon had, within the preceding three hours, operated a motor vehicle while his ability to do so was impaired by the consumption of alcohol. Although he had an Approved Screening Device with him, the officer did not consider it necessary to use it in order to be able to form that opinion. Having formed the requisite opinion, Cst. Saikali placed Mr.

McKinnon under arrest, advised him of the reason for his arrest, handcuffed him, chartered and warned him, and then made a s. 254(3) breath demand. [ 11 ] I acknowledge that the Crown’s evidence, from which I have found the aforementioned facts, was not perfect. [ 12 ] Ms. Fournier—who seemed (perhaps for good reason) to have found Mr. McKinnon’s conduct outrageous—struggled, not altogether successfully, to suppress her outrage when being cross-examined. She displayed impatience with Mr. Kompa’s questioning and was, as he rightly says in submissions, a somewhat argumentative witness. [ 13 ] Ms.

Fournier claimed to have a near to infallible memory, although in small ways her memory was shown on cross-examination to have normal, human weaknesses. Just as she was inclined to exaggerate when describing her powers of recall, so also Ms. Fournier was inclined to exaggerate in some of her descriptions of the subject events and to editorialise when giving her answers. For example, in her testimony at trial she claimed at times that Mr. McKinnon appeared “very intoxicated” and “extremely intoxicated”.

Yet, neither the transcript of her 911 call nor her police statement given much closer in time to the subject events recorded the use, by her, of those modifiers. [ 14 ] That said, I am satisfied that, overall, Ms. Fournier gave a truthful and accurate account of the subject events and that I am able to accept that evidence essentially as it was given. The findings outlined above reflect the fact that, in a few places where necessary, I have preferred and accepted the unadorned parts of Ms. Fournier’s account of the relevant events—that is, the parts that accorded best with her statement and 911 call transcript.

For example, I have found as a fact that Mr. McKinnon appeared to her to be in an intoxicated state before he drove out of the Woody’s Pub parking lot, as she said in her police statement, and not in a “very intoxicated” or “extremely intoxicated” state as she said during her viva voce testimony at trial. [ 15 ] Cst. Saikali was an excellent witness for the Crown. He had a calm and unflappable demeanour while in the stand. He

impressed me as being forthright and sincere, and he had a confident but respectful and understated way of giving his evidence thatbelied the fact that he had never testified at a trial before. His version of the material events, as it emerged in his direct examination, didnot change over the course of close questioning during cross-examination. [16] Cst. Saikali was quick to acknowledge and even volunteer points that were favourable to the accused. For example, as I havenoted, most of Mr. McKinnon’s driving was faultless. Moreover, Mr. McKinnon was properly responsive to Cst.

Saikali’s questions andinstructions at roadside. The officer acknowledged those facts freely, and not in a grudging way. But he did not give ground in areaswhere he clearly disagreed with his questioner. When pressed by Mr. Kompa to agree that the appearance of having a wide turn mightsimply be an artefact resulting from the pickup truck being equipped with wide tires, for example, Cst. Saikali was clear and unwaveringin his insistence that, for a distance after turning onto it, Mr. McKinnon drove his pickup down the middle of King Albert Avenue. Andwhen counsel challenged him about his contention that Mr.

McKinnon moved very slowly when walking from the pickup truck to thepolice car—suggesting that he walked no more slowly than did Cst. Saikali himself—the officer declined to depart from his previoustestimony that the exceptionally slow pace of their movement was set by Mr. McKinnon. [17] I should mention that of the indicia of impairment that are enumerated in his observations noted above, Cst. Saikali referred toall but the slurring of speech when giving his evidence-in-chief.

However, he was reminded when questioned on the point during Mr.Kompa’s cross-examination that he had also observed during their roadside interaction that Mr. McKinnon displayed a slurred speechpattern. As is clear from what I have stated above, I have found as a fact that that observation formed part of the constellation ofobservations that informed Cst. Saikali’s opinion that, within the three preceding hours, Mr.

McKinnon had operated a motor vehiclewhile his ability to do so was impaired by the consumption of alcohol, and that therefore he was entitled to demand samples of Mr.McKinnon’s breath under s. 254(3). REASONABLE GROUNDS FOR MAKING A BREATH DEMAND [18] Section 254(3) of the Criminal Code provides that in order to make a lawful breath demand, an investigating officer must have“reasonable grounds to believe that a person is committing, or any time within the preceding three hours has committed, an offence unders. 253 as a result of the consumption of alcohol [i.e., a drinking and driving offence]…”.

A belief based on reasonable grounds has botha subjective and an objective dimension. The officer must, subjectively, have an honest belief that the suspect has committed a drinkingand driving offence under s. 253 and the belief must be an objectively reasonable one: R. v. Bernshaw, (SCC), [1995]1 S.C.R. 254. [19] I do not understand Mr. Kompa to argue, on behalf of Mr. McKinnon, that Cst. Saikali made the breath demand in issue withouthaving an honest subjective belief that Mr. McKinnon had committed a drinking and driving offence.

All of his written submissions inthis area are focused on what is alleged to have been be an insufficient objective foundation for the officer’s belief. I shall thereforeconcentrate, in these reasons, on the law and facts bearing upon the objective dimension of the s. 254(3) test. [20] Section 254(3) does not set an onerous threshold: R. v. Censoni, [2001] O.J. No. 5189 (Ont. S.C.J.). Reasonable grounds canamount to less than a prima facie case: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 and R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527.

Moreover, the degree of impairment of a driver under investigation is not determinative. If aninvestigating officer has objectively reasonable grounds and an honest subjective belief that a driver’s driving ability is even slightlyimpaired by the consumption of alcohol, that will suffice: R. v. Wong, 2011 BCCA 13 at para. 20 and R. v. Stellato, (ON CA), [1993] O.J.

No. 18 (C.A.). [21] In evaluating the objective support that exists for an investigating officer’s subjective belief that an accused person hascommitted a drinking and driving offence, the court must consider the facts as understood by the officer at the time the demand wasmade (and not later): R. v. Wong, supra, R. v. Musurichan, [1990] A.J. No. 14 (C.A.) and R. v. Saulnier, [1990] B.C.J. No. 161 (C.A.). This includes the facts understood by the officer that cut against, as well as favour, the inference that the accused had recently committeda drinking and driving offence: Chartier v.

Attorney General for Quebec, (SCC), [1979] 2 S.C.R. 474 and R. v. Todd,2007 BCCA 176. Moreover, the court must view those grounds from the perspective of the skills and knowledge possessed by thepolice officer and not from the perspective of a layperson: R. v. To, [1998] B.C.J. No. 1323 (C.A.). [22] Where some of the facts considered by an officer in reaching his or her conclusion that there were reasonable grounds to make abreath demand became known to him or her based on hearsay, that—by itself—does not vitiate the reasonableness of those grounds: R.v. Seabrook, (BC CA), [1991] B.C.J.

No. 3467 (C.A.). [23] Other decided cases are of somewhat limited assistance in assessing the sufficiency of the objective support for an investigatingofficer’s subjective opinion that he or she had reasonable grounds, in a given case, to make a s. 254(3) breath demand. “Reasonablegrounds” cases are multifarious and fact-dependent and, as such, their precedential value is to some degree constrained: R. v. Rhyason,2007 SCC 39 , [2007] S.C.J. No. 39 and R. v.

Skuce, 2009 BCPC 333. [24] The question of whether sufficient objective grounds exist to make a lawful breath demand brings into play the notion of“critical mass”. How many and what indicia does it take to achieve a critical mass? There is no uniform answer. As I have noted,every case will turn on its own facts.

The configuration will differ to some extent from case to case and some observations will beweighted more heavily in the equation in some cases than others. [25] Some guidance can be taken by analogy from the cases that consider the "reasonable and probable grounds" required to make alawful arrest without warrant. For example, in R. v. Hall, (ON CA), [1995] O.J. No. 544 (C.A.), Osborne J.A. (Carthyand Laskin JJ.A. concurring) stated: “… there must be … a constellation of objectively discernable facts amounting to reasonable and probable grounds for a lawful arrestwithout warrant.” (at para. 31) ANALYSIS

[26] As I noted earlier in these reasons, on July 18, 2010, Cst. Saikali brought to the impaired investigation he conducted in this casethe experience he had accumulated over two years of service as an RCMP officer. During those two years he had conducted fiveimpaired investigations himself (although he had observed a number of others). I must consider the objective grounds for the opinion hereached that he had reasonable grounds to make a breath demand of Mr. McKinnon on that night against the background of that base ofskill and experience. [27] The facts cited by Cst.

Saikali as those which informed his opinion that Mr. McKinnon had committed a drinking and drivingoffence and that, thus, justified the making of a breath demand can be recapitulated as follows: (

a) The suspected impaired driver report of Ms. Fournier that was transmitted over the air by the 911 operator. The operator broadcastthat a vehicle (which ultimately was established to be that of Mr. McKinnon) had been driven out of the Woody’s Pub parking lot by adriver who vomited out of the driver’s window before departing; (

b) Mr. McKinnon’s erratic driving. This consisted of: i. a wide turn made when leaving Blue Mountain to proceed east on King Albert during which Mr. McKinnon drove a shortdistance down King Albert in the middle of the road; and ii. a failure to properly stop at the corner of King Albert and Nelson in which Mr. McKinnon’s vehicle came to rest with its rearwheels resting on the stop line and its front projecting into the intersection; (

c) The vomit that was visible on Mr. McKinnon’s face, clothing and vehicle door; (

d) Mr. McKinnon’s admission that he had come from Woody’s Pub; (

e) The strong odour of alcohol on Mr. McKinnon’s breath; (

f) Mr. McKinnon’s bloodshot eyes; (

g) Mr. McKinnon’s flushed face; (

h) Mr. McKinnon’s slurred speech; and (

i) The very slow pace at which Mr. McKinnon moved when he walked from his pickup truck to the police car that was parked behindit. [28] I consider Cst. Saikali’s reference to and reliance upon those observations to have been appropriate and sensible. They reflectthe fact that, although he was a junior officer at the time, Cst. Saikali was nevertheless a skilled observer and astute to the requirementsof an impaired driving investigation. [29] Cst. Saikali did make some observations that cut against an inference of possible impairment. For example, many aspects ofMr.

McKinnon’s driving during the short distance that the officer followed him were unremarkable. Mr. McKinnon denied having hadanything to drink when at Woody’s pub when asked. Cst. Saikali considered these observations as he was obliged to do; however, theywere insufficient to displace the impression left with him by the observations he made and the information he had received that favouredan inference of impairment. Similarly, while he could see that Mr.

McKinnon had a left-leg limp and gave consideration to that fact, hedid not believe that the limp was sufficient to explain the markedly slow pace with which the accused moved when he was asked to walkfrom his pickup truck to the police car. I can see no basis upon which I should second guess Cst. Saikali’s judgment in relegating thesecontrary observations to comparatively unimportant status. [30] Mr. Kompa placed considerable emphasis during cross-examination and submissions upon other factors that could explain thevarious individual observations of Mr.

McKinnon’s driving and general demeanour that were made by the Crown witnesses. The Crownwitnesses readily agreed, for example, that there are reasons, other than impairment, why a driver might make a wide turn, drive downthe middle of the road or stop his vehicle at an intersection with his rear wheels resting on a stop line. They also agreed that peoplevomit, and sometimes have bloodshot eyes, for reasons other than their being intoxicated. Cst.

Saikali did not dispute that the smell ofalcohol on a person’s breath is only proof of the consumption of alcohol, but not necessarily of consumption in a quantity sufficient tocause impairment. [31] But implicit in the testimony of Cst. Saikali overall, and explicit in the law in this area, is the notion that while differingexplanations can always be imagined for particular observations in isolation, it is their occurrence in the aggregate which objectivelysupports an investigating officer’s opinion that a drinking and driving offence has been committed. I must not (as I have been invited todo by Mr.

Kompa) speculate about possible alternative explanations for each of the various indicia noted by Cst. Saikali in his testimonyand then use that speculation, not rooted in any evidence, as a basis for questioning the sufficiency of the objective foundation for theofficer’s subjective opinion that Mr. McKinnon had committed a drinking and driving offence. [32] Rather, I must consider the convergence of the totality of the personal observations and other information that Cst.

Saikali hadat his disposal—observations and other information that the officer said he believed justified the making of a breath demand—all withinthe context of the evidence as a whole and evaluate the sufficiency of the objective grounds from that perspective. [33] Apropos of the approach that I understand I am bound to take is the analysis found in the decision of Belzil, Stevenson andVirtue, JJ.A., in R. v. Huddle, 1989 ABCA 318 , [1989] A.J. No. 1061 (C.A.).

In that case the court found that the trial judge“… erred in law in assessing the various indicia on which the police officer relied in isolation and in rejecting each on the grounds ofconsistency with other explanations”. Their Lordships then went on to state: “… In our view, it is an error to test individual pieces of evidence which are offered to establish the existence of reasonable and probable

grounds. That is similar to the approach which the Supreme Court of Canada condemned in Morin. True, the smell of alcohol does notshow impairment; slurred speech alone does not show impairment by alcohol; glassy eyes may be associated with crying; but, thequestion is whether the total of the evidence offered provided reasonable and proper grounds, on an objective standard.” (emphasisadded) [34] The Huddle reasoning noted above was recently adopted and applied by the British Columbia Supreme Court in R. v. Olund,[2010] B.C.J. No. 707 (S.C.). See also, to a similar effect, R. v. Bush, 2010 ONCA 554 , [2010] O.J.

No. 3453 (C.A.) at paras.54-58 and R. v. Usher, 2011 BCCA 271 at para. 31. [35] Applying this approach in my evaluation of what Cst. Saikali pointed to as the objective foundation for his subjective opinionthat Mr. McKinnon had committed a drinking and driving offence under s. 253 of the Criminal Code, I have no doubt whatsoever thatthe officer’s subjective opinion was properly grounded. Cst. Saikali was aware of some possibly exculpatory facts but the convergenceof the noted inculpatory facts clearly established “critical mass” from which the exculpatory facts did not meaningfully derogate.

I haveno hesitation in saying that, when he proceeded to issue a s. 254(3) breath demand to Mr. McKinnon, Cst. Saikali was fully justified indoing so. [36] While, as I have noted, other cases on differing facts are of limited assistance except in setting out the governing principles, I doobserve that many of the authorities in this area involve closer calls with many fewer and less compelling indicia of impairment thanthose that are at issue here. [37] One such case is R. v. Soczynski, 2006 BCPC 91 , 2006 BCPC 0091, upon which Mr. Kompa places heavy reliance inhis submissions. Mr.

Blunt dealt with Soczynski as follows at paras. 18-19 of his written argument: “The Soczynski decision, relied on by the defence, is distinguishable in the Crown’s submission because the factors noted by theinvestigating officer to form his grounds for a breath demand also had reasonable alternative inferences inconsistent with an opinion thatthe driver was impaired. These included the officer observing Mr. Soczynski to be wearing a sling on his arm and having a penny in hismouth while speaking.

As stated by Baird Ellan P.C.J., in these circumstances the officer had “a duty to investigate where it wasreasonably probable that the apparent symptoms were due to alcohol consumption.” In the present case there were no objective contrary indications to Constable Saikali’s observations that required further investigation. Speculation is not a credible basis to challenge the officer’s grounds. In the context of a breath demand the focus is on what wasreasonable for Constable Saikali to consider within the time constraints associated with the screening of a possible impaired driver.

Inother words, the question is not whether there may be other explanations for things the officer observed or considered, but whether whatwas observed and considered at that time and in that context would lead to a reasonable belief in the likelihood that the Accused hadcommitted an offence under

section 253 of the Code.” (emphasis in original) [38] I agree with, and adopt, Mr. Blunt’s reasoning, as reflected in that passage, regarding the Soczynski decision. DISPOSITION [39] For all of the foregoing reasons, I rule for the purposes of the present voir dire that the breath demand that Cst. Saikali made toMr. McKinnon on July 18, 2010, pursuant to s. 254(3) of the Criminal Code was made by Cst. Saikali in circumstances where theofficer had objectively reasonable grounds for his honest, subjective belief that Mr. McKinnon had committed a drinking and drivingoffence contrary to s. 253.

It follows that, in terms of reasonable grounds, the demand was a lawful one. ______________________ Thomas S. Woods, P.C.J.