R. v. Szczerba, 2018 ONCJ 897

ONTARIO COURT OF JUSTICE CITATION: R. v. Szczerba , 2018 ONCJ 897 DATE: 2019·12·19 COURT FILE No.: Lindsay 170879 BETWEEN: HER MAJESTY THE QUEEN — AND — JANUSZ SZCZERBA Before Justice S.W. Konyer Heard on November 9 and 14, 2018 Reasons for Judgment released on December 19, 2018 Mr. M. Daigle ........................................................................................... counsel for the Crown Mr. J. Fagan ........................................................ counsel for the defendant Janusz Szczerba KONYER J.: [ 1 ] Janusz Szczerba was charged with driving while impaired by a drug on June 17, 2017.

On that date, he was operating a van on Highway 118 near the village of Minden when he came to the attention of the police because of his poor driving. This led to a traffic stop and police investigation into his level of sobriety. The officer who stopped him formed a belief that Mr. Szczerba had a drug in his body, and required him to perform a Standard Field Sobriety Test (S.F.S.T.) at the roadside. His poor performance (in the officer’s opinion) on this test led to his subsequent arrest and detention.

Ultimately he was required by demand to provide both a breath sample for analysis and to submit to an evaluation by a Drug Recognition Expert (D.R.E.), who also happened to be the arresting officer. As a result of his performance on this evaluation, the officer formed the opinion that Mr. Szczerba’s ability to drive was impaired by a central nervous system depressant. This led to a seizure of a sample of his urine, which was found to contain Olanzapine, a prescription anti- psychotic drug. [ 2 ] At trial, the defence claimed that the arresting officer did not have a reasonable suspicion that Mr.

Szczerba had a drug in his body, and that the S.F.S.T.’s therefore constituted an unreasonable search and seizure, contrary to s.8 of the Canadian Charter of Rights and Freedoms . Since it is not disputed that Mr. Szczerba was detained while these tests were conducted, it follows that his detention was arbitrary within the meaning of s.9 of the Charter if the search which caused the detention was unreasonable. [ 3 ] After he was arrested following the S.F.S.T., Mr. Szczerba was not informed of his right to counsel for 8 minutes while the officer moved and searched his vehicle.

The defence argues that this was a breach of his right to be immediately informed of his right to counsel, contrary to s.10(

b) of the Charter . [ 4 ] Once he was informed of his right to counsel, the arresting officer made a demand that Mr. Szczerba provide samples of his breath for analysis by an approved instrument. He was then transported to the nearest police station, spoke to counsel and provided a breath sample which registered zero. At that point, some 82 minutes after his arrest, the officer made a demand that Mr. Szczerba submit to the D.R.E. evaluation.

The defence argues that the officer failed to comply with the requirement in s.254(3.1) of the Criminal Code that the D.R.E. demand be made “as soon as practicable” after grounds are formed. Thus the search and seizure conducted pursuant to the demand was not authorized by law and constituted a further breach of Mr. Szczerba’s right to be free from unreasonable search and seizure, contrary to s.8 of the Charter . [ 5 ] The defence also argues that Mr.

Szczerba was held in custody for an excessive period of time following the completion of the police investigation, and that this overholding constitutes an arbitrary detention contrary to s.9 of the Charter . [ 6 ] As a remedy for the Charter breaches claimed, the defence seeks an order pursuant to s.24(2) of the Charter excluding the results of the D.R.E. exam and the results of the analysis of Mr. Szczerba’s urine. [ 7 ] The Crown disputes each of the Charter claims made by Mr. Szczerba. It argues that the arresting officer had an objectively

reasonable suspicion that Mr. Szczerba had a drug in his body based on all of the circumstances known to the officer when he made the demand that Mr. Szczerba submit to the roadside S.F.S.T. Further, the Crown says there was no s.10(

b) breach as the officer was entitled to briefly delay informing Mr. Szczerba of his right to counsel for public safety reasons. The Crown also argues the D.R.E. evaluation demand was made in a reasonably prompt time in the circumstances. Further, the Crown disputes that any overholding occurred in this case. [ 8 ] If any Charter breaches did occur, the Crown argues that the circumstances do not justify an order excluding the impugned evidence. [ 9 ] The onus is on Mr. Szczerba to prove a breach of his Charter rights on a balance of probabilities.

Since it is admitted that the searches in question were conducted without a warrant, however, the onus shifts to the Crown on the s.8 claims to prove that reasonable grounds existed for each search. [ 10 ] It is common ground that if the impugned evidence is excluded, the Crown cannot prove the charge against Mr. Szczerba. Even if the evidence is not excluded, however, the defence argues that the Crown has not proven beyond reasonable doubt that Mr. Szczerba was impaired by a drug. It is argued that Mr.

Szczerba’s poor English skills undermines the significance of his failures to follow directions during the course of the D.R.E. evaluation. Further, the defence says that the D.R.E. opinion, which is that Mr. Szczerba was impaired by a central nervous system depressant, is undermined by the scientific finding that the only drug detected in his system belonged to a different drug category. [ 11 ] Finally, even if I am satisfied that the Crown has proven impairment, the defence argues that Mr.

Szczerba was involuntarily intoxicated, and therefore lacked the criminal intent required for a conviction. [ 12 ] Therefore, the issues that I must decide in this case are as follows: • Has the Crown proven that the arresting officer had a reasonable suspicion that Mr. Szczerba had a drug in his body when the S.F.S.T. demand was made? • Has Mr. Szczerba proven that his right to be promptly informed of his right to counsel was infringed? • Has the Crown proven that the D.R.E. evaluation demand was made as soon as practicable? • Has Mr.

Szczerba proven that he was arbitrarily detained after the police investigation was completed? • If any Charter breach(es) occurred, should the evidence of the D.R.E. evaluation or the analysis of Mr. Szczerba’s urine be excluded? • If the evidence is not excluded, has the Crown proven beyond a reasonable doubt that Mr. Szczerba’s ability to drive was impaired by a drug? • If the Crown has proven that his ability to drive was impaired by a drug, am I left with a reasonable doubt whether Mr.

Szczerba was voluntarily intoxicated? [ 13 ] In order to decide these issues, I will first review the relevant evidence and make findings of fact. Once I have decided what the facts are, I will then apply the law to these facts. This will allow me to answer these questions. [ 14 ] Mr. Szczerba is, of course, presumed innocent of the charge he is facing. This means that I must find him not guilty unless the Crown proves his guilt beyond reasonable doubt.

While proof beyond reasonable doubt does not require the Crown to prove his guilt to an absolute certainty, it does mean that the Crown must prove more than that Mr. Szczerba is probably or likely guilty. If the Charter applications in this case fail, I must consider all of the admissible evidence and decide whether I am sure that Mr. Szczerba is guilty of this offence. If I am not sure of his guilt, then I must find him not guilty. If I am sure of his guilt, then I must find him guilty. [ 15 ] I would be remiss if I failed to thank each counsel for the professional manner in which they conducted this case.

They each made responsible concessions, focussed on the issues that needed to be litigated, and advanced their respective positions skilfully. I am indebted to their advocacy, which allowed me to focus my attention on the real issues in this case. I now turn to a review of the evidence.

SUMMARY OF THE EVIDENCE [ 16 ] With the consent of counsel, the evidence on the Charter applications was blended with the evidence on the trial proper. I heard testimony from Stacie-Lynn Bilton, a passenger in a vehicle that followed Mr. Szczerba’s van for a period of time on Highway 118, and who called 911. I also heard from P.C. Kevin Brown, who conducted the traffic stop, administered the roadside S.F.S.T., arrested Mr. Szczerba, read him his right to counsel, administered the D.R.E. evaluation, and prepared Mr. Szczerba’s release documents. He also offered an expert opinion as a D.R.E. regarding Mr.

Szczerba’s ability to drive. I also heard from Betty Chow, a scientist from the Centre for Forensic Sciences (C.F.S.), who testified as an expert about the results of the analysis of Mr. Szczerba’s urine and the impairing effects of Olanzapine, the drug detected in his urine. I also heard testimony from P.C. Robin Carmount, the officer who ultimately released Mr. Szczerba from custody. As part of the Crown case, I also received copies of an LCBO receipt found in Mr. Szczerba’s vehicle, as well as a prescription pill bottle containing 13 Olanzapine pills. [ 17 ] The defence called evidence from Mr.

Szczerba’s daughter Beata Szczerba about the circumstances in which he was prescribed Olanzapine. Finally, I heard testimony from Mr. Szczerba about his actions leading up to the traffic stop. [ 18 ] On the afternoon of Saturday, June 17, 2017, Stacie-Lynn Bilton was a passenger in a vehicle being driven by her spouse. They were returning home to Haliburton on Highway 118, which is a paved, two lane rural highway that has many hills and curves. At

about 3:00 p.m., they followed Mr. Szczerba’s vehicle for about 15 minutes. Mr. Szczerba was driving a van towing a U-Haul trailer. Ms. Bilton said that Mr. Szczerba was driving erratically. He was traveling at inconsistent speeds on the highway, which had the usual 80 km/hr speed limit. At times, Mr. Szczerba slowed to about half that speed.

His vehicle was also swerving on the road, at times crossing completely into the oncoming lane of traffic, at other times crossing onto the shoulder of the road. [ 19 ] When they were finally able to pass the vehicle, she made observations of the driver and sole occupant, who is known to be Mr. Szczerba. She said that he appeared to be tired, that his eyes were heavy and that he was slumped forward in his seat. As a result of her observations, Ms. Bilton called 911 and provided an account of what she had seen, including a description of the vehicle and driver. [ 20 ] At 3:50 p.m., P.C.

Kevin Brown of the O.P.P. was provided with information relayed from Ms. Bilton by his dispatcher. Specifically, he was provided with a description of the vehicle, its location and direction of travel. He was also told that a civilian caller had reported that the driver appeared to be drowsy, that the vehicle’s speed was inconsistent and that it was swerving all over the road. He responded to the area traveling in the opposite direction from Mr. Szczerba’s vehicle on Highway 118. As he crested a hill, he saw the van approaching him in the wrong lane of traffic. P.C.

Brown drove onto the shoulder to avoid a collision, and immediately turned his cruiser around and pursued the van. Before he was able to conduct a traffic stop, he saw the van weave continuously between the centre line and the fog line of its own lane. When he did signal the van to stop, it came to rest on an angle with its front end partially obstructing the highway. [ 21 ] P.C. Brown approached the van and spoke to Mr. Szczerba. He was looking for signs of impairment. He did not note any odour of alcohol emanating from Mr. Szczerba, nor did he detect any slurring of his speech. When he requested Mr.

Szczerba’s driver licence and vehicle information, he said that Mr. Szczerba had difficultly locating the vehicle documents and that he struggled to remove his licence from his wallet. P.C. Brown, who is an experienced police officer and a qualified D.R.E., said that Mr. Szczerba’s fine motor skills were slow. Based on all of his own observations and the information conveyed to him from Ms. Bilton, P.C. Brown formed a suspicion that Mr. Szczerba had alcohol, a drug, or a combination in his body. Accordingly, at 4:10, he demanded that Mr.

Szczerba perform physical coordination tests (the S.F.S.T.) pursuant to s.254(2) (

a) of the Criminal Code . [ 22 ] P.C. Brown has been trained in administering the S.F.S.T., and in fact now trains other police officers on these tests. Mr. Szczerba complied with his demand to perform the tests. P.C. Brown agreed that Mr. Szczerba spoke with a heavy accent and that his English was limited. Nevertheless, it was his belief that Mr. Szczerba understood what he was told, and the instructions he was given about how to perform the various tests. This is because Mr. Szczerba told him that he understood when he was asked this question, and also because Mr.

Szczerba followed his instructions, which were aided by a demonstration of the tests from P.C. Brown. [ 23 ] In P.C. Brown’s opinion, Mr. Szczerba failed the tests, which led the officer to form the belief that Mr. Szczerba’s ability to drive was impaired by alcohol, a drug, or a combination. He arrested Mr. Szczerba at 4:22, handcuffed him, and lodged him in the rear of his police cruiser. P.C. Brown did not, however, inform Mr. Szczerba of his right to counsel at that time. Rather, he said he was concerned that Mr.

Szczerba’s van, which had been left partially on the highway, was a danger to other motorists, and he decided to move the van at this time prior to informing Mr. Szczerba of his right to counsel. The officer agreed that he had just spent the last 12 minutes administering the S.F.S.T. with the van parked in the same position, and he also agreed that it would not have taken more than a minute to inform Mr. Szczerba of his right to counsel. [ 24 ] While P.C. Brown was moving the van, he noticed a prescription bottle as well as open alcohol containers inside.

He then conducted a search of the vehicle incident to arrest, and seized a number of items. These included a pill bottle with a label for 14 Olanzapine 5 mg pills that had been filled on June 16, 2017, the day before. The bottle still contained 13 pills, and the label on the bottle contains the direction “take at bedtime”. P.C. Brown also seized a prescription information sheet for the Olanzapine pills, which includes the following information: “This medication is typically used for certain mental disorders (psychosis).

It may also be used for bipolar disorder (manic-depressive illness), to assist in the treatment of depression, as well as for other uses.” “This product may intensify the effect of alcohol. Limit alcohol consumption to an occasional intake.” “In addition to its desired action, this medication may cause some side effects, notably: - It may cause dizziness – use caution when getting up from a lying or sitting position - It may cause headaches - It may cause either drowsiness or excitability – use caution until you know how you will react Each person may react differently to a treatment.

If you think this medication may be causing side effects (including those described here, or others), talk to your doctor or pharmacist.” [ 25 ] P.C. Brown also observed an open but empty beer can next to the driver’s seat. A further search of the vehicle revealed a second open and partially full can of beer on the passenger side floor, and a third open and empty can of beer inside an LCBO bag behind the driver’s seat. The LCBO bag also contained a fourth unopened can of beer as well as a receipt from an LCBO store in Barrie with a time stamp of 11:59 a.m. that same day. [ 26 ] After seizing these items, P.C.

Brown returned to his cruiser and informed Mr. Szczerba of his right to counsel at 4:30, some 8 minutes after he was first placed under arrest. At that point the officer said he first noticed the faint odour of an alcoholic beverage inside his cruiser. He then cautioned Mr. Szczerba. He said that Mr. Szczerba responded by admitting that he had consumed alcohol. P.C. Brown then made a breath demand, requiring that Mr. Szczerba submit samples of his breath for analysis by an approved instrument.

As I understood his evidence, he made this demand for two reasons: first, he now had grounds based on the discovery of the beer cans and receipt, the odour of alcohol, Mr. Szczerba’s admission of consumption, and all of the other indicia (poor driving, lack of fine motor skills) to now form a belief that Mr. Szczerba may be impaired by alcohol. This would justify a breath demand under

s.254(3). Second, he also had grounds to believe that Mr. Szczerba was impaired by a drug or a combination of alcohol and a drug, which would justify a D.R.E. evaluation demand under s.254(3.1) . Since P.C. Brown was a D.R.E., he knew that the first step in that evaluation was to administer a breath test in order to determine whether alcohol was a factor. In other words, Mr. Szczerba was going to be required to provide a breath sample either way. The breath results would dictate whether the investigation then proceeded as one involving impairment by alcohol, a drug, or a combination of the two. [ 27 ] P.C.

Brown then transported Mr. Szczerba directly to the nearest detachment, arriving at 4:52. He lodged Mr. Szczerba and facilitated his right to counsel by placing a call to duty counsel and requesting the services of a Polish-speaking lawyer. This call was returned at 5:13, and Mr. Szczerba spoke to counsel until 5:34, at which time he was turned over to a qualified technician to perform an analysis of his breath. At 5:44, P.C. Brown was told that a suitable sample of Mr. Szczerba’s breath had been analyzed and found to contain no alcohol. At this time, some 82 minutes after Mr. Szczerba’s arrest, P.C.

Brown made a demand to him that he submit to a D.R.E. evaluation, pursuant to s.254(3.1) . [ 28 ] P.C. Brown then conducted the evaluation, which involves twelve steps. The first step in the evaluation involves performing a single breath test if there is any suspicion that the person has alcohol in their body. If the single test produces a reading above the legal limit, then the normal procedure for alcohol testing is followed. Since a breath test had already been performed on Mr. Szczerba, this step of the evaluation was skipped.

I will summarize the relevant findings from the remainder of the evaluation. [ 29 ] At three points during the evaluation, Mr. Szczerba’s pulse was checked, and found to be above the normal range. His blood pressure was also tested and found to be slightly high. His body temperature was normal. His muscle tone was flaccid, which P.C. Brown said could mean he was under the influence of a depressant, inhalant or analgesic, which are different categories of drugs.

An examination of his eyes showed horizontal gaze nystagmus, or involuntary jerking of the pupils, which the officer said meant that some intoxicant was having an effect. He displayed vertical gaze nystagmus, meaning that the intoxicant was a high dose for Mr. Szczerba. A series of divided attention tests were performed, and Mr. Szczerba performed poorly on each, which indicated to P.C. Brown that he was under the influence of some form of intoxicant. [ 30 ] Based on the totality of the evidence he gathered during the evaluation, together with his observations of the driving and Mr.

Szczerba’s condition at the roadside, P.C. Brown formed the opinion that Mr. Szczerba’s ability to operate a motor vehicle was impaired by a central nervous system depressant. This is a category of drug which will cause nystagmus, a lowered pulse and blood pressure, as well as a flaccid muscle tone. Body temperature will be unaffected. P.C. Brown said that Mr. Szczerba exhibited all of these symptoms except for the lowered pulse and blood pressure. [ 31 ] As a result of the evaluation, Mr.

Szczerba was required to provide a urine sample, which was later sent to the Centre for Forensic Sciences (C.F.S.) for testing. The evaluation was completed at 6:40 p.m., at which point Mr. Szczerba was lodged in a cell. P.C. Brown, whose shift had ended at 6:00 p.m., then completed paperwork including a Promise to Appear and Administrative Driver’s Licence Suspension, which had to be served on Mr. Szczerba. He completed his tasks by 7:30 p.m., at which point he left the detachment. Another officer, P.C. Carmount, had started a shift at 6:00 p.m., and had agreed to complete Mr.

Szczerba’s release from custody. [ 32 ] P.C. Carmount said he volunteered to assist P.C. Brown in preparing Mr. Szczerba for release. He fingerprinted Mr. Szczerba at 6:55 p.m., and released him from custody at 8:23 p.m. He knew from the start of his shift that Mr. Szczerba was to be released once the necessary paperwork was prepared and served. He could offer no explanation for Mr. Szczerba’s continued detention after 7:30, by which time the paperwork and fingerprinting had all been completed. During his dealings with Mr. Szczerba, P.C.

Carmount did not note any physical signs of impairment. [ 33 ] Betty Chow from the C.F.S. testified as an expert witness in forensic toxicology. Mr. Szczerba’s urine was tested at the C.F.S., and Olanzapine was detected. The testing shows only the presence of a substance, not the concentration. Ms. Chow explained that Olanzapine is an anti-psychotic drug, which is often prescribed to treat conditions such as bipolar disorder. Side effects can include drowsiness and dizziness, which can be more pronounced in an inexperienced user.

It is usually only prescribed to be taken once daily, so the effects are long-lasting, but will peak between 5 to 8 hours after a dose is taken. The 5mg Olanzapine pills found in Mr. Szczerba’s vehicle are a typical starting dose for this drug. [ 34 ] When asked for her opinion as to how Olanzapine can interact with alcohol, Ms. Chow explained that they are different categories of drugs. Alcohol is a central nervous system depressant, while Olanzapine is an anti-psychotic. However, both can cause drowsiness.

She would expect that a first-time user of Olanzapine may experience some residual effects of drowsiness 15 hours after taking a 5mg pill. She could not say how much drowsiness the consumption of two beers would cause for Mr. Szczerba since she does not know his level of tolerance for alcohol. However, since his blood alcohol concentration was zero, this would mean that any alcohol which he may have consumed was eliminated from his system and would no longer cause any drowsiness.

In combination, she agreed that alcohol and Olanzapine could cause increased drowsiness, subject to the individual’s tolerance for each. She also said that Olanzapine generally produces an increase in heart rate, pulse and blood pressure. [ 35 ] Mr. Szczerba’s daughter Beata Szczerba testified for the defence. She explained that she and her sister took Mr. Szczerba to the Centre for Addiction and Mental Health (C.A.M.H.) in Toronto on June 15, 2017 due to concerns they had about his deteriorating mental health. He was given a two-week trial prescription for Olanzapine and was to return to check on his progress.

She acted as an interpreter for her father, whose native language is Polish. Although he is able to speak and understand some English, she described his English language skills as very limited. [ 36 ] Ms. Szczerba said she was told by the doctor at C.A.M.H. that the medication could cause dizziness and/or drowsiness. She translated this information to her father. She says she also told her father not to drive after taking the medication because she assumed it could have an impact on his ability to drive, though she agreed the doctor did not give any such warning to her father. Ms.

Szczerba and her sister were aware of their father’s plan to drive to his property near Bancroft on the weekend, and they urged him not to travel because of concerns they had over the impact of the new medication on his ability to drive safely.

[37] Mr. Szczerba testified in his own defence. He said that he filled the prescription on June 16 and took a pill that evening, asdirected. When he woke the following day, he felt fine and decided to travel as planned to his property. He left late in the morning, andstopped on the way in Barrie to purchase beer. Sometime after making the stop in Barrie, he began to feel weak and got a headache. Hepulled over to rest, and began to feel very thirsty. He drank some apple juice that he had with him, but still felt thirsty, so he drank part ofa beer. After a time he began to feel better, so he continued his journey.

Mr. Szczerba agreed that he attributed the weakness andheadache to the new medication he had taken, as there was no other explanation for the sudden onset of these symptoms. [38] Mr. Szczerba did not testify about his manner of driving once he resumed his journey. After he was stopped by the police, hedid not understand all of the instructions he was given either during the roadside S.F.S.T. or subsequent D.R.E. evaluation due to his poorEnglish skills.

He agreed that his daughter translated information for him that dizziness and drowsiness were potential side effects of themedication he was prescribed at C.A.M.H. He also agreed that his daughter warned him not to drive after taking the medication, butexplained that since he took the medication before bed, he assumed that any side effects would disappear by the following morning. ANALYSIS Issue 1: Did P.C. Brown have a reasonable suspicion that Mr. Szczerba had a drug in his body? [39] P.C. Brown was entitled to make a demand that Mr.

Szczerba submit to the S.F.S.T. so long as the officer had a reasonablesuspicion that Mr. Szczerba had a drug in his body. In making this assessment, the officer was entitled to rely on the totality of theinformation in his possession, including his own observations and hearsay information from other sources. While he was not entitled toignore information that suggested an innocent explanation, he was also not required to investigate every possible alternate explanation. As the Supreme Court held in R. v.

Chehil, 2013 SCC 49 , [2013] 3 S.C.R. 220, at para. 32: “reasonable suspicion need not bethe only inference that can be drawn from a particular constellation of factors. Much as the seven stars that form the Big Dipper havealso been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completelyinnocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, andnot a probability of doing so.” [emphasis in original] [40] There is no doubt that P.C. Brown subjectively believed that Mr.

Szczerba had a drug in his body. What I have to decide iswhether that belief was objectively reasonable. The officer had information that Mr. Szczerba was driving erratically – that his vehiclewas swaying and traveling at inconsistent speeds. He himself observed the vehicle traveling in the wrong lane. He was clearly lookingfor signs of impairment as an explanation for the poor driving when he approached Mr. Szczerba’s vehicle at the roadside. At that time,there was nothing to suggest that Mr. Szczerba had alcohol in his body. The officer’s uncontradicted evidence is that Mr.

Szczerbadisplayed unusually slow fine motor skills in providing his driver’s licence. In my view, the officer’s suspicion that Mr. Szczerba had adrug in his body as an explanation for this constellation of factors was reasonable. I agree with his assessment that there was areasonable possibility that Mr. Szczerba had a drug in his body. Nothing more was required. [41] It follows from this conclusion that I find no breach of Mr. Szczerba’s right to be secure from unreasonable search andseizure based on the S.F.S.T. demand. Nor was his detention for this purpose arbitrary. Issue 2: Was Mr.

Szczerba’s right to counsel infringed because P.C. Brown failed to promptly inform him of that right? [42]

Section 10(

b) of the Charter provides that “everyone has the right on arrest or detention to retain and instruct counsel withoutdelay and to be informed of that right.” The phrase without delay had been interpreted by the Supreme Court to mean immediately. “Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s.1 of the Charter, thepolice have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediatelyupon detention”: see R. v. Suberu, 2009 SCC 33, at para. 42. [43] Although Mr. Szczerba’s 10(

b) rights were temporarily suspended during the roadside S.F.S.T. process, that suspensionended once P.C. Brown arrested him for impaired driving. The officer was required at that point to immediately inform Mr. Szczerba ofhis right to counsel, subject to legitimate safety concerns. P.C. Brown testified that he delayed informing Mr. Szczerba of his right tocounsel at this juncture because he felt a need to move Mr. Szczerba’s vehicle to a safe position completely off the highway. I agreewith the defence that this explanation lacks credibility. By the point he was placed under arrest, Mr.

Szczerba’s vehicle had been parkedin the same position for 14 minutes, including 12 minutes while P.C. Brown conducted the S.F.S.T. directly in front of the vehicle. Informing Mr. Szczerba of his right to counsel took less than a minute. Delaying this process for safety concerns that were already inexistence for the previous 14 minutes could not reasonably take precedence over Mr. Szczerba’s constitutional rights. [44] I am also troubled by the fact that the officer used a good portion of the time between Mr. Szczerba’s arrest and informinghim of the right to counsel to search his vehicle.

This bolsters my conclusion that legitimate safety concerns were not the true reason forthe delay in informing Mr. Szczerba of his right to counsel. Mr. Szczerba has proven that his 10(

b) rights were infringed. Issue 3: Was the D.R.E. evaluation demand was made as soon as practicable? [45] Section 254(3.1) provides that an officer who has reasonable grounds to believe that a person has been operating a motorvehicle under the influence of a drug or a combination of alcohol and a drug “may, by demand made as soon as practicable” require theperson to submit to a D.R.E. evaluation. In Mr. Szczerba’s case, P.C. Brown made this demand at 5:44 p.m., some 82 minutes after Mr.Szczerba failed the roadside S.F.S.T.

[46] P.C. Brown offered an explanation for his failure to make an immediate D.R.E. evaluation demand at 4:22, when Mr.Szczerba was arrested following the S.F.S.T. for impaired operation. He said that the discovery of alcohol in the vehicle after Mr.Szczerba’s arrest led him to suspect that alcohol was a factor, despite the absence of any sign of alcohol consumption prior to that point. He also pointed to the fact that he detected an odour of alcohol in his cruiser at 4:30, after Mr. Szczerba had been lodged in the cruiserfor 8 minutes. Therefore, he made a demand at 4:35 that Mr.

Szczerba provide a sample of his breath for analysis by an approvedinstrument under s.254(3) rather than a D.R.E. evaluation demand under s.254(3.1). He went on to explain that since he knew, as aqualified D.R.E. evaluator, that the first step in the evaluation was breath testing for the presence of alcohol, he expected that Mr.Szczerba would be required to submit to a breath demand in any event. [47] I find the officer’s explanation to be less than satisfactory.

The law requires him to make the D.R.E. demand as soon asreasonably possible when he has grounds to suspect that a person has committed a drug-driving offence if it is his intention to require theperson to submit to an evaluation. P.C. Brown clearly had these grounds at 4:22 based on Mr. Szczerba performance on the S.F.S.T.,which was administered precisely for the purpose of determining if such grounds existed. At this time, the officer had no basis forbelieving that alcohol played a role. The D.R.E. demand should have been made at that point, just as Mr. Szczerba should have beeninformed of his right to counsel.

By delaying the demand, in my view, P.C. Brown was not acting reasonably. [48] Furthermore, even if he was justified in delaying the demand until 4:30, after Mr. Szczerba’s vehicle had been moved andsearched, a D.R.E. demand should still have been made at that point. Whether the officer also had grounds to make a breath demand isimmaterial. One of the purposes of the demand is to inform the arrestee of the officer’s intention to compel him or her, under penalty oflaw, to provide incriminating information that may be used in evidence in a criminal prosecution.

One of the effects of the delay inmaking the D.R.E. demand in Mr. Szczerba’s case is that he was not informed of the officer’s true intention until after he had spoken toduty counsel. He spoke to duty counsel after having been told that he would be required to provide a sample of his breath for analysis,not that he was going to be compelled to submit to a D.R.E. evaluation. He was not given another opportunity to speak to duty counselafter 5:44, when the D.R.E. evaluation demand was finally made. [49] I find that the D.R.E. evaluation demand was not made “as soon as practicable” in the circumstances of this case.

This wasnot a harmless omission, as P.C. Brown seemed to believe. The result of this failure was that Mr. Szczerba was required to provideincriminating evidence against himself without first having the opportunity to obtain legal advice. The D.R.E. evaluation was awarrantless search. The onus is on the Crown to demonstrate that reasonable grounds existed for the search, that it was authorized bylaw, and that it was carried out in a reasonable manner. Although the Crown has proven that P.C.

Brown had reasonable grounds toconduct the search, it was not authorized by law because of the officer’s failure to make a reasonably prompt demand. Nor was thesearch carried out in a reasonable manner as Mr. Szczerba was required to participate in the search without first being given anopportunity to receive legal advice. I find that Mr. Szczerba’s s.8 Charter rights were infringed. Issue 4: Was Mr. Szczerba arbitrarily detained after the police investigation was completed? [50] This is not a case where the police attempted to justify the delay in releasing Mr. Szczerba due to a lack of sobriety.

It wasclearly P.C. Brown’s intention to release him once the investigation was complete. P.C. Carmount was aware of this fact, and took stepsto assist P.C. Brown in facilitating the release of Mr. Szczerba. Some expected delay in the release occurring to allow for fingerprintingand the preparation and service of release documents occurred, but this process was completed by 7:30 p.m. when P.C. Brown left thedetachment. [51] Mr. Szczerba has proven that he was nevertheless held in custody for close to another hour, until he was released at 8:23 p.m.

He has proven that there was no reason for his continued detention during this period. Neither officer was able to explain the delay, andno lawful justification was proffered for this period of detention. In my view, this is the very definition of arbitrariness. Mr. Szczerba’sdetention was unnecessary and capricious. The only reasonable explanation is that the police were negligent or indifferent to hisdetention. I find that Mr. Szczerba was arbitrarily detained from 7:30 until 8:23 p.m. Issue 5: Should the evidence of the D.R.E. evaluation or the analysis of Mr.

Szczerba’s urine be excluded? [52] I have found breaches of Mr. Szczerba’s rights as guaranteed by ss.8, 9 and 10(

b) of the Charter. To determine whetherevidence ought to be excluded as a result, I must weigh and balance the three factors identified by the Supreme Court in R. v. Grant,2009 SCC 32 , [2009], 2 S.C.R. 353. These factors are: the seriousness of the Charter-infringing state conduct, the impact ofthe breaches on Mr. Szczerba’s Charter-protected interests, and society’s interests in an adjudication of the case on its merits. I willconsider each in turn.

i) The seriousness of the Charter-infringing state conduct [53] Charter infringements can range in seriousness on a “spectrum from mere technical breaches at one end to bad faithviolations at the other”: R. v. Jennings, 2018 ONCA 260, at para. 26. Clearly, the more serious the police conduct resulting in thebreach or breaches, the more this branch of the test will favour exclusion. Wilful or reckless disregard by the police of Charter standardswill also make the conduct more serious. [54] In my view, P.C. Brown’s conduct in failing to inform Mr.

Szczerba of his right to counsel immediately upon his arrest wason the less serious end of the range. He was entitled to move Mr. Szczerba’s vehicle to a safe location and to search the vehicle incidentto arrest before leaving the scene with Mr. Szczerba, who had been lawfully arrested. He should have informed Mr. Szczerba of hisright to counsel before performing these tasks, resulting in an 8 minute delay in Mr. Szczerba receiving this information. This breachwas technical in nature. [55] The s.8 breach that occurred because the officer failed to make a prompt D.R.E. evaluation demand, however, was more

serious. P.C. Brown clearly intended to perform a D.R.E. evaluation when Mr. Szczerba was arrested. One of the reasons for the requirement that the demand be made promptly is so that the detained person knows the reason for his or her continued detention, and the reason they are required to accompany the officer. The police intended, under penalty of law, to demand that Mr. Szczerba provide evidence which could later be used against him in criminal proceedings.

He was entitled to know what process the police intended to use to gather this evidence, and he was entitled to this information before exercising his right to counsel. Although I accept P.C. Brown’s explanation for why he did not make a prompt D.R.E. evaluation demand and I find that he did not act in bad faith, this is not the same as a finding that he acted in good faith. Wilful ignorance of Charter standards cannot be equated with good faith. It is important that courts disassociate themselves from serious Charter -infringing state conduct.

The s.8 breach, in my view, was serious. [ 56 ] The s.9 breach that occurred here was moderately serious. It appears to me as though Mr. Szczerba was left to languish in a police cell for about an hour after both officers acknowledge that he should have been released. The only logical explanation is that the police were negligent in failing to promptly release him. While such negligence towards Mr. Szczerba’s liberty interests is clearly unacceptable, the situation was corrected in under an hour, which lessens the impact of this breach.

Although this breach standing alone would not result in a remedy under s.24(2), it is indicative of a pattern of police indifference towards Mr. Szczerba’s constitutional rights. [ 57 ] In combination, the Charter breaches that occurred in this case were serious. The first branch of the Grant test therefore favours exclusion of the evidence. ii) The impact of the breaches on Mr. Szczerba’s Charter -protected interests [ 58 ] This line of inquiry calls for an assessment of how much the infringements actually undermined Mr. Szczerba’s Charter - protected interests.

Again, there is a spectrum: “[t]he impact of a Charter breach may range from fleeting and technical to profoundly serious”: Grant , supra, at para. 76 . As the seriousness of the incursion into the protected interest increases, so does the risk that the admission of the evidence will bring the administration of justice into disrepute. [ 59 ] The delay that occurred here in informing Mr. Szczerba of his right to counsel had no real impact on his actual ability to receive legal advice. Had he been informed of his 10(

b) rights 8 minutes earlier, nothing would have changed in the course of events that unfolded afterwards. No evidence was gathered from Mr. Szczerba during this period that would not otherwise have been lawfully discovered. [ 60 ] The same cannot be said for the delay in making the D.R.E. evaluation demand. This resulted in Mr. Szczerba receiving legal advice after being told that he would be required to provide a sample of his breath for analysis. This was the only demand that had been made to him at the point he was put into contact with duty counsel. P.C.

Brown clearly understood that he was entitled to conduct a D.R.E. evaluation, and he clearly contemplated this course of action. By failing to inform his arrestee of this intention, Mr. Szczerba would not have been in a position to receive legal advice that was relevant to the jeopardy he faced. P.C. Brown was not entitled to withhold this information from Mr. Szczerba until the breath testing procedure revealed that he had no alcohol in his system. Mr. Szczerba ought to have been told that he would be required to submit to a D.R.E. evaluation before he spoke to duty counsel.

He had a constitutionally protected interest in being informed of the evidentiary demands that the police intended to make of him. The impact of this breach on Mr. Szczerba’s interests was significant. [ 61 ] The impact on Mr. Szczerba’s liberty interests as a result of the over-holding that occurred here was moderate. The period of arbitrary detention was less than an hour, and there is no evidence that Mr. Szczerba was mistreated in any way during this period. [ 62 ] Once again, in combination, the effect of these breaches on Mr. Szczerba’s Charter -protected interests was serious.

This branch of the Grant test also favours exclusion of the evidence. iii) Society’s interest in an adjudication of the case on its merits [ 63 ] Both counsel concur that this branch of the Grant tests favours admission of the impugned evidence. Although the defence challenges the reliability of P.C. Brown’s ultimate opinion on impairment, the evidence I am concerned with here is necessary to undertake an assessment of the officer’s opinion. There is no dispute that the scientific analysis performed by the C.F.S. was reliable.

Exclusion of this evidence would gut the Crown’s case and deny the public a trial on the merits on a serious criminal offence. I agree that this branch of the Grant test favours inclusion of the evidence. iv) Balancing the Grant factors [ 64 ] The purpose of s.24(2) is to maintain the good repute of the administration of justice in the long term. The focus of the balancing of interests is not on the immediate case before the court, but rather “whether the overall repute of the justice system, viewed in the long term, will be adversely affected by the admission of the evidence”: Grant , supra , at para. 68 .

My concern is not with punishing the police or compensating the accused. Rather, the focus is societal, and I must consider objectively whether “a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute”: Grant , supra, at para. 68 . [ 65 ] In Mr. Szczerba’s case, there is in my view a pressing need for the court to disassociate itself from the serious disregard exhibited by the police towards Mr. Szczerba’s Charter rights. The impact on Mr.

Szczerba’s Charter -protected interests was also serious. If no remedy were to flow for these breaches, there is a real risk that a message will be sent that Charter rights count for little. Despite the impact that this decision will have on the Crown case, the evidence is excluded. Issue 6: If the evidence is not excluded, has the Crown proven beyond a reasonable doubt that Mr. Szczerba’s ability to drive was impaired by a drug?

[ 66 ] Although it is not strictly necessary for me to decide the remaining issues given my findings on the Charter applications, I will do so in the interests of completeness. [ 67 ] The defence argues that I ought to have a reasonable doubt on the issue of impairment in part because P.C. Brown was wrong in his ultimate opinion that Mr. Szczerba’s ability to drive was impaired by a central nervous system depressant. The C.F.S. evidence, however, shows only the presence of a different category of drug – an anti-psychotic. If the Crown were required to prove that Mr.

Szczerba was impaired by the specific category of drug identified by the D.R.E. evaluator, I would agree. All that the Crown is required to prove, however, is that Mr. Szczerba’s ability to drive was impaired by a drug. [ 68 ] Here, the evidence as a whole clearly proves that Mr. Szczerba was under the influence of a single drug – Olanzapine, an anti-psychotic medication that he took as prescribed. The driving evidence is unchallenged, and suggests a high degree of impairment consistent with drowsiness. The only drug detected in his body at the time can cause drowsiness, particularly in a novice user like Mr.

Szczerba. The irresistible inference is that the presence of Olanzapine in Mr. Szczerba’s system caused the drowsiness and impairment of his ability to drive. The fact that P.C. Brown misdiagnosed the category of drug that actually caused the impairment is irrelevant. [ 69 ] I have also taken into account the fact that Mr. Szczerba may not have been able to fully understand all of the details he was given by P.C. Brown during the D.R.E. evaluation. I accept his testimony that his poor language skills prevented him from fully understanding the directions he was given.

It would have been preferable for the officer to have ensured that Mr. Szczerba fully understood what tasks he was being asked to perform as part of the evaluation. Nevertheless, many of the officer’s observations, such as swaying, poor balance, flaccid muscle tone and gaze nystagmus existed independently of the tasks Mr. Szczerba was directed to perform. I am satisfied based on the totality of the evidence that the Crown has proven some degree of impairment of Mr.

Szczerba’s ability to drive, and I am further satisfied that the Crown has proven that this impairment was caused by the Olanzapine in his body. [ 70 ] Accordingly, if the impugned evidence were not excluded, I would have found that the Crown had proven beyond reasonable doubt that Mr. Szczerba’s ability to operate a motor vehicle was impaired by a drug. Issue 7: If the Crown has proven that his ability to drive was impaired by a drug, am I left with a reasonable doubt whether Mr.

Szczerba was voluntarily intoxicated? [ 71 ] In most impaired driving cases, it is safe to presume that the accused voluntarily consumed the substance causing the impairment. However, this is not always the case. I agree with and adopt the reasoning of Paciocco J (as he then was) in R. v.

McGrath , 2013 ONCJ 528 , where he held at para. 13 that an accused must be found not guilty “if there is affirmative evidence that raises a reasonable doubt that his intoxication by drug was voluntary, and about whether he realized he was impaired before choosing to drive.” [ 72 ] In this case, I do have a reasonable doubt that Mr. Szczerba’s intoxication by a drug was voluntary. He was not specifically directed not to drive after taking the drug by the medical professional who prescribed it to him, nor does the pharmacy warning contain a specific direction not to drive after taking the drug.

Although the concerns about driving raised by his daughter were understandable, I am not satisfied that her concerns were sufficient to fix Mr.

Szczerba with the knowledge that his ability to drive safely would be compromised if he took the drug in accordance with the instructions he had been given. [ 73 ] This is not the end of the inquiry, however, for “[e]ven where ‘involuntary intoxication’ occurs, if an accused person becomes aware that they have become intoxicated by alcohol or a drug, they cannot deny the mens rea if they subsequently choose to operate a motor vehicle while still impaired”: McGrath , supra, para. 10 . Here, Mr.

Szczerba stopped driving for a period of time before coming to the attention of the police because he was experiencing weakness and a headache. He attributed these symptoms to the new medication he had taken for the first time the previous evening, which was a logical inference. These symptoms were severe enough that he stopped driving temporarily, during which period he consumed some alcohol, hardly a wise decision. [ 74 ] By this point, I can safely conclude that Mr. Szczerba had good reason to suspect that his ability to safely operate a vehicle was being compromised by the Olanzapine he had taken.

This is precisely why he stopped driving. Ms. Chow, the C.F.S. expert, testified that while Olanzapine can cause drowsiness, it does not impair cognitive functioning. By choosing to continue driving after acquiring this knowledge, Mr. Szczerba was reckless to the foreseeable risk that his ability to drive safely was impaired, either by the drug he had been prescribed, or a combination of that drug together with the alcohol he had consumed while taking a break from driving.

It follows that I find the possessed the necessary mens rea for a conviction for impaired driving. [ 75 ] Therefore, had I not excluded the evidence in this case, I would have found Mr. Szczerba guilty of the single charge before the court. For the reasons given earlier, however, that evidence has been excluded and Mr. Szczerba is found not guilty. Released: December 19, 2018 Signed: “Justice S.W. Konyer”