R. v. Joyce, 2019 NLSC 76

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Joyce , 2019 NLSC 76 Date : April 02, 201 9 Docket : 201704G0209 Her Majesty The Queen v. Walter Alfred Joyce Before: Justice Brian F. Furey Reasons for Judgment Given Orally Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: April 02 and 03, 2018 Date of Oral Judgment: April 11, 2018

Summary: Application under section 24(2) of the Charter by Mr. Joyce for the exclusion of evidence obtained following breaches of his rights. The Applicant argued that his sections 8 and 9 Charter rights were violated. Held: The Application was dismissed, the Court having found that the police officer had reasonable and probable grounds to arrest the Applicant and to make a breath demand of him.

Appearances: Adam Sparkes, Q.C. Appearing on behalf of Her Majesty The Queen Robby D. Ash Appearing on behalf of Walter Alfred Joyce Authorities Cited: CASES CONSIDERED: R. v. Shepherd, 2009 SCC 35; R. v. Bush, 2010 ONCA 554; R. v. Storrey, (SCC), [1990] 1S.C.R. 241, [1990] A.C.S. no. 12; R. v. Bjelland, 2009 SCC 38; and R. v. Grant, 2009 SCC 32. STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 being

Schedule B to theCanada Act 1982 (UK), 1982, c. 11; Criminal Code, R.S.C. 1985, c. C-46, as am.

REASONS FOR JUDGMENT VOIR DIRE Furey, J.: INTRODUCTION [1] On December 26, 2016, Walter Alfred Joyce was charged with the following offences: Count 1: On or about the 26th day of December, 2016, A.D., at or near the town of Lark Harbour, in the Province of Newfoundland andLabrador, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcoholin one hundred millilitres of blood, did while operating a motor vehicle, cause an accident resulting in death to Marilyn Sheppard,contrary to s. 255(3.1) of the Criminal Code.

Count 2: On or about the 26th day of December, 2016, A.D., at or near the town of Lark Harbour, in the Province of Newfoundland andLabrador, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcoholin one hundred millilitres of blood, did while operating a motor vehicle, cause an accident resulting in death to Merle Sheppard, contraryto s. 255(3.1) of the Criminal Code.

Count 3: On or about the 26th day of December, 2016, A.D., at or near the town of Lark Harbour, in the Province of Newfoundland andLabrador, while his ability to operate a motor vehicle was impaired by alcohol, did operate a motor vehicle and thereby did cause thedeath of Marilyn Sheppard, contrary to s. 255(3) of the Criminal Code.

Count 4: On or about the 26th day of December, 2016, A.D., at or near the town of Lark Harbour, in the Province of Newfoundland andLabrador, while his ability to operate a motor vehicle was impaired by alcohol, did operate a motor vehicle and thereby did cause thedeath of Merle Sheppard, contrary to s. 255(3) of the Criminal Code. [2] A preliminary inquiry was held on August 23, 2017 in the Provincial Court of Newfoundland and Labrador and it wasdetermined that the evidence adduced was sufficient to commit the accused to trial. He was ordered to stand trial in this Court.

Not guiltypleas were entered to the four charges on November 29, 2017 at the Pre-Trial Conference. The judge and jury trial was scheduled tocommence April 16, 2018. [3] Mr. Joyce applied for an order pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms,

Part I of the

Constitution Act , 1982 being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 excluding from evidence all information obtained from him, including the samples of breath provided following his arrest and detention. The Applicant argues that his rights under sections 8 and 9 of the Charter were breached. [ 4 ] A voir dire was held on April 2 and 3, 2018. Four witnesses testified on behalf of the Crown and three witnesses testified on behalf of the Applicant. issues [ 5 ] To determine this application, it is necessary to decide the following: a.

Was the Applicant’s arrest without a warrant and subsequent demand to the Applicant to provide a sample of breath violations of his sections 8 and 9 Charter rights because the police officers did not have reasonable and probable grounds at the requisite time? Essentially, did the police officers have reasonable and probable grounds to make an arrest and make a breath demand? b.

If there was an infringement of the Applicant’s Charter rights, should the evidence seized be excluded pursuant to section 24(2) of the Charter ? burden of proof [ 6 ] On a Charter application, the burden of proof is on the applicant to establish a breach on a balance of probabilities. [ 7 ] If the Court concludes there was a Charter breach, then the burden of proof is on the Applicant, on a balance of probabilities, to establish that exclusion of the evidence is the appropriate remedy.

In that regard, section 24(2) of the Charter requires the Applicant to establish that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute. canadian charter of rights and freedoms [ 8 ] The relevant sections of the Charter are sections 8 , 9 and 24 . These state: Search or seizure 8. Everyone has the right to be secure against unreasonable search or seizure. Detention or imprisonment 9. Everyone has the right not to be arbitrarily detained or imprisoned. Enforcement of guaranteed rights and freedoms 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Exclusion of evidence bringing administration of justice into disrepute

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. evidence [ 9 ] Matthew Gallant is a paramedic with Western Health. He received a telephone call shortly after 1 a.m. on December 26, 2016 to attend the scene of an accident in Lark Harbour, Newfoundland and Labrador.

He got there around 2:00 – 2:15 a.m. The weather was snowy and windy. He and his partner determined that the two victims of the accident were deceased. Mr. Gallant testified that he spoke to the Applicant, who was in the back seat of a car, that the Applicant said he was the driver of the truck, and that he had been drinking. Mr. Gallant remembered the Applicant’s speech being slurred. [ 10 ] The two police officers, Constable Brogan Young of the R.C.M.P. and Constable Skylar Peddle of the R.N.C., arrived about 45 minutes after Mr. Gallant. Mr.

Gallant told the police officers there were two deceased persons, the driver of the truck (the Applicant) was in the back of another vehicle, and the Applicant had told him he was the driver of the truck, and that he had been drinking. Mr.

Gallant thought that he mentioned to the police officers about the Applicant’s slurred speech. Their conversation was only brief – about one minute. [ 11 ] Counsel for the Applicant raised with Mr. Gallant his statement to the police about the Applicant’s slurred speech. He acknowledged that it was possible he did not say that to the police officers. On further questioning, Mr. Gallant stated he did not remember if he had said anything to the police officers regarding slurred speech. [ 12 ] Corporal Johnathan Moran is a R.C.M.P. officer with Forensic Identification Services.

He was on call on Christmas morning and Boxing Day. He received a call on December 26, 2016 at 2:30 a.m. informing him that there was an accident in Lark Harbour. He left his home at 3:07 a.m. and arrived in Lark Harbour at 4:19 a.m. When he arrived at the scene of the accident, he observed a R.N.C. police vehicle leaving the area. He spoke to Constable Young and another R.C.M.P. officer and he got an overview from them.

He did a visual inspection of the scene and then took a series of photographs of the scene which were entered in evidence. [ 13 ] On cross-examination, Corporal Moran stated that the driving conditions on the way to and closer to Lark Harbour were fair to poor. The truck in question was in the appropriate lane of traffic. There was no evidence that the truck went off the road. [ 14 ] Constable Brogan Young is a R.C.M.P. officer who was stationed in Corner Brook at the time in question. That was his first posting which started on November 17, 2014. [ 15 ] He was on call on Christmas night, 2016.

He had been on regular duty during Christmas Day. He received a call at 1:25 a.m. on December 26, 2016 indicating there had been a motor vehicle accident in Lark Harbour involving pedestrians. He received another call that the R.N.C. were aware of the accident and were offering their assistance. He left his home at 1:40 a.m. and went to the R.N.C. building where he met Constable Skylar Peddle. They left there at 2 a.m. As he was driving toward Lark Harbour, he received additional information in two updates from R.C.M.P. Communications.

In the first update, Constable Young was told that one pedestrian was deceased and the other was being worked on by medical personnel. Sometime later he was told that both pedestrians who were struck were deceased, the driver was there, and he said he had been drinking. [ 16 ] Constable Young arrived at the scene at 2:50 a.m. Constable Peddle arrived right after him. [ 17 ] They were approached by Matthew Gallant who told them both pedestrians were deceased, their bodies had not been moved, the driver was on the scene, and he had been drinking. Mr. Gallant led the officers up the road.

Constable Young observed the truck and could tell the front passenger side of the vehicle had struck something. [ 18 ] Constable Young stated he understood the difference between the police power of detention and of arrest and an arrest could be made if there were enough grounds. He was satisfied he had enough information regarding the situation to make an arrest. [ 19 ] Constable Young and Constable Peddle approached the vehicle that Mr. Gallant had pointed out. Constable Young stated a male person got out of the driver’s side of the vehicle and Constable Young told him he was under arrest.

The Applicant then got out of the vehicle, identified himself as Walter Joyce, and walked towards them. Constable Young stated that Mr. Joyce’s eyes were glassy, he smelled of alcohol, there was a slight slur in his speech, and he was cooperative and polite. The whole matter happened quickly. Constable Young told the Applicant he was under arrest. He did not read the Applicant his rights. He said them from memory. He and Constable Peddle brought the Applicant back to Constable Young’s vehicle, taking him arm in arm. He read the formal Charter rights to the Applicant and made a demand for a breath sample at 3 a.m.

At this point, there was a stronger smell of alcohol from the Applicant. When Constable Young was handcuffing the Applicant, the latter was off balance. Constable Young concluded that the Applicant agreed to comply with the breath demand. He understood that the Applicant was subsequently tested with a breathalyzer and a certificate was produced. He was not involved with the actual testing. [ 20 ] On cross-examination, Constable Young acknowledged when they arrived at the scene he had already received information that there was an accident, the driver was there, and he had been drinking.

The decision to make an arrest was his. He did not consider waiting. The two police officers walked to the vehicle where the driver was. Constable Young admitted he told the first person who got out of the vehicle he was under arrest but this individual was the wrong person. It happened quickly before the Applicant got out of the vehicle and said that he was the driver. [ 21 ] Constable Young noted the Applicant’s eyes were a little glassy when he was walking to the police car. He was asked if he had made any notes regarding his observations of the Applicant.

He made an entry in his notebook at 4:41 a.m. – a late entry. He gave more detail about the time of arrest – 2:55 a.m. and the Applicant’s name. The Applicant admitted to having some drinks. There was nothing about the Applicant having glassy eyes and slurred speech. Constable Young acknowledged he should have made better notes. When he returned to the R.C.M.P.

Detachment, he made more detailed notes. [ 22 ] Counsel for the Applicant suggested to Constable Young that at the time of the decision to make an arrest, all the information he had was the Applicant was the driver of the vehicle and he had consumed alcohol. Constable Young responded that it occurred quickly. He took the Applicant to his police vehicle and read the formal breath demand to him. He had not received any information regarding the time of the accident and he did not make any inquiries.

He did not ask anyone for information regarding how much alcohol the Applicant consumed or if the Applicant was swerving while driving the vehicle. Constable Young confirmed the Applicant was cooperative and appeared to understand what was going on.

He noted that when the Applicant was being placed in handcuffs and off balance, the purpose of tipping a suspect forward is to put the suspect off balance to allow the officer to have better control of the situation. [ 23 ] On re-examination, Constable Young stated when he received the call about the accident from Communications, they said they had just received a call of a motor vehicle accident in Lark Harbour. He thought the accident had occurred then. [ 24 ] Constable Skylar Peddle is a R.N.C. officer stationed in Corner Brook. He was on duty on Christmas Day, 2016.

His regular night shift started at 7:30 p.m. on December 25 until 7:30 a.m. on December 26, 2016. He was contacted by one of his superiors before 2 a.m. that the R.C.M.P. were looking for their assistance with respect to an accident in Lark Harbour involving two people. He met the

R.C.M.P. officer, Constable Young, at the R.N.C. building. He had access to the R.N.C. Communications about half the way to Lark Harbour but did not have access to the R.C.M.P. Communications. He did not recall any updates from the R.N.C. Communications. [ 25 ] When Constable Peddle arrived at the scene in Lark Harbour around 2:50 a.m., the area was quite congested. There were emergency vehicles.

He was approached by Matthew Gallant who told him that two people were deceased, the driver was still on the scene, and he had been drinking. [ 26 ] Constable Peddle said that Constable Young approached him as he was speaking to Mr. Gallant but he could not remember if they spoke. He noted they had discussed who would take the lead when they were in Corner Brook and he said to Constable Young that “It’s your jurisdiction”. [ 27 ] When they approached the car where the Applicant was, another person got out first.

Then the Applicant got out, advised he was the driver, and that he was drinking which he inferred to be alcohol. Constable Peddle testified there was a distinct odor of alcohol on his breath. Constable Young advised the Applicant he was under arrest, placed him in handcuffs, and the Applicant was escorted back to the R.C.M.P. vehicle. He did not read the Applicant his rights at the car where he was arrested. The Applicant was placed in the back of the police vehicle and Constable Young sat in the front seat of the vehicle.

He assumed Constable Young read the Applicant his rights and provided a caution and also made a demand for a breath sample. [ 28 ] When asked if there were any other signs of impairment, he noted that the Applicant put his jacket on inside out when he got out of the vehicle. He stated there were reasonable grounds to believe that the Applicant was under the influence and not able to drive. [ 29 ] At 4:09 a.m., Constable Peddle took custody of the Applicant. He read a secondary caution to the Applicant at 4:11 a.m. The Applicant wanted to speak to Legal Aid.

Constable Peddle told the Applicant they would have to go back to the R.N.C. building in Corner Brook to do that. There was still an odor of alcohol from the Applicant and it was easier to detect. At 4:14 a.m., the Applicant told Constable Peddle he did not recall a breath demand being made. Constable Peddle then read the breath demand to the Applicant who advised him he did understand the demand and would provide a sample. Constable Peddle did not have any conversation with the Applicant after that. They left Lark Harbour at 4:15 a.m. and arrived at the R.N.C. building in Corner Brook at 5:10 a.m.

A telephone call was placed to Legal Aid at 5:15 a.m., the Applicant spoke to a lawyer at 5:19 a.m., and the call was finished at 5:40 a.m. The first breathalyzer test was completed at 5:55 a.m. and a certificate was generated. The Applicant was served with the certificate at 6:38 a.m. [ 30 ] Constable Peddle outlined the grounds to read the breath demand to the Applicant. These were: the odor of alcohol, putting his jacket on inside out, a collision occurring, no other explanation for the collision, and the Applicant’s admission of drinking.

Constable Peddle believed the Applicant’s ability to operate a motor vehicle was impaired. [ 31 ] On cross-examination, Constable Peddle confirmed that Constable Young was the arresting officer, that it was Constable Young’s decision, that Constable Young did not make the arrest at his direction, and that Constable Young did not consult with him. He also confirmed the following: a. There was nothing to indicate how much the Applicant had drank; b. There was no evidence of erratic driving; c. He did not recall Constable Young arresting another person; d.

He did not know if the decision to arrest the Applicant was made on the way to the car where he was; e. He did not observe anything about the Applicant’s balance; and f. He spoke to a person who was a witness to the accident but he did not ask the time the accident happened. [ 32 ] On re-examination, Constable Peddle identified the person he had spoken to about the accident and stated the person said the male person attempted to flag down the Applicant’s truck and was struck. [ 33 ] Martha Joyce is the Applicant’s mother. She stated he called their home about 15 minutes after the accident.

She and her husband drove to the scene. The Applicant got in the back seat of their car. She recalled the police officers coming to the car. The police officer asked for the driver of the truck. Warren Joyce, the Applicant’s uncle, got out first. Mrs. Joyce saw that the Applicant did not have a jacket. She passed him her husband’s jacket. When the police started to arrest him, she saw the jacket was inside out. [ 34 ] Damien Joyce is the Applicant’s first cousin. He was near his uncle’s car when the police officers arrived. His father, Warren Joyce, was in the back seat with the Applicant.

When his father got out of the car he was arrested. Then the Applicant got out of the car, said he was the driver, and he was arrested. The police officer put the Applicant in handcuffs and walked him to the police car with his hands behind his back. The road was slippery and snow covered with a slight to moderate grade down the road. [ 35 ] Warren Joyce is the Applicant’s uncle. He went to the scene of the accident and got in his brother’s car but got out when he saw the police officer coming. One of the officers took his left arm and put it behind his back.

The officer did not ask him his name nor if he was drinking or if he was the driver. The Applicant jumped out of the car and said he was the driver. The officer then let Mr. Joyce go. [ 36 ] On cross-examination, Mr. Joyce did not recall the police officer saying they were looking for the driver. submissions The Crown [ 37 ] In his submissions, Crown counsel acknowledged that the Crown bears the onus to show that a police officer had reasonable

and probable grounds to make an arrest or to make a demand. He referred to R. v. Shepherd, 2009 SCC 35 and R. v. Bush, 2010 ONCA554, two cases in which those courts commented on reasonable and probable grounds in the context of an arrest and a demand for abreath sample in an impaired driving case. He suggested these two cases are the standard to be followed. [38] Crown counsel referred to paragraphs 54 – 57 of Bush which are set out below: [54] Whether reasonable and probable grounds exist is a fact-based exercise dependent upon all the circumstances of the case.

Thetotality of the circumstances must be considered: see Shepherd, at para. 21; R. v. Rhyason, [2007] 3 S.C.R. 108, [2007] S.C.J. No. 39,2007 SCC 39; R. v. Elvikis, [1997] O.J. No. 234, 31 O.T.C. 161 (Gen. Div.), at para. 26; Censoni, at para. 47. That an accident occurred,including the circumstances under which it occurred and the possible effects of it, must be taken into account by the officer along withthe other evidence in determining whether there are reasonable and probable grounds to arrest for impaired driving.

Consumption plus anunexplained accident may generate reasonable and probable grounds although that may not always be the case: Rhyason, supra, at para.19. [55] In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection ofthe officer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection":Censoni, at para. 43; also Jacques, at para. 23.

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, 165 A.R. 332 (C.A.). [56] An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of animpaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which areabsent as the essential test.

There is no mathematical formula with a certain number of indicia being required before reasonable andprobable grounds objectively existed: Censoni, at para. 46. The absence of some indicia that are often found in impaired drivers does notnecessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v.Costello, [2002] O.J. No. 93, 22 M.V.R. (4th) 165 (C.A.), at para. 2; Wang, at para. 21. [57] Consideration of the totality of the circumstances includes the existence of an accident.

However, that the accident could havecaused some of the indicia relied upon when they could also have been caused by the consumption of alcohol does not mean the officerhas to totally eliminate those indicia from consideration: R. v. Duris, [2009] O.J. No. 4403, 2009 ONCA 740, at para. 2. They have to beconsidered along with all the other indicia in light of the fact there may be another explanation. To the extent that Uppal determinesotherwise, with respect, it was wrongly decided. [39] He suggested it is not helpful to go through a list.

The Court is supposed to look at the entire grounds and consider the context. [40] In this matter, Constable Young, a police officer with two years’ experience, received a call (while he was on call and afterworking a whole shift) about an accident and was given some information. He arrived at the scene and had to make a decision in the realworld quickly. [41] He acknowledged the issue of Constable Young approaching the wrong person was unfortunate. It was a short-term case ofmistaken identity. The police officer asked for the driver. A man got out of the car.

The police made an assumption that should not begiven too much emphasis. [42] Crown counsel referred to other passages from R. v. Bush suggesting that the proper approach the Court should take inassessing reasonable and probable grounds is outlined in paragraphs 44 – 48 which are set out below: [44] Doherty J.A. continues in Golub, 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; Chartier v. The Attorney General of Quebec (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. C.A.); R. v. Proulx (1993), (QC CA), 81 C.C.C. (3d) 48 at 51 (Que.

C.A.). [45] On a subsequent occasion, Doherty J.A. found police in a drinking and driving investigation were involved in making quick butinformed decisions whether there were reasonable and probable grounds: see R. v. Smith (1996), (ON CA), 28 O.R.(3d) 75, [1996] O.J. No. 372 (C.A.). [46] In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, [2010] O.J.No. 2490, 2010 ONCA 435, at para. 17. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as tothreaten individual freedom: Censoni, at para. 43.

[47] There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable groundsto arrest: R. v. Deighan, [1999] O.J. No. 2413, 45 M.V.R. (3d) 90 (C.A.), at para. 1. Impairment may be established where theprosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), (ON CA), 12 O.R. (3d) 90,[1993] O.J. No. 18 (C.A.), affd (1994), (SCC), 18 O.R. (3d) 800, [1994] 2 S.C.R. 478, [1994] S.C.J. No. 51.

Slightimpairment to drive relates to a reduced ability in some measure to perform a complex motor function, whether impacting on perceptionor field of vision, [page655] reaction or response time, judgment and regard for the rules of the road: Censoni, at para. 47. [48] The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was evenslightly impaired by the consumption of alcohol: see R. v. Stellato, supra; Moreno-Baches and Wang, at para. 17.

Where appellate courtsare called upon to review the trial judge's conclusions as to whether the officer objectively had reasonable and probable grounds, theappellate court must show deference to the trial judge's findings of fact although the trial judge's ruling is a question of law reviewableon the standard of correctness: Wang, at para. 18. [43] Applied to the matter before this Court, Crown counsel noted that there was a large scene with a number of people who werewalking over the crime scene. Police officers do not have the ability to conduct all kinds of interviews.

The Court has to consider thesituation the police officers were in and what was reasonable for them to do. He referred to paragraph 48 of R. v. Bush, where Durno, J.stated “The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was evenslightly impaired by the consumption of alcohol . . . ”. Crown counsel noted there was an accident. It is a significant consideration ofwhether there was an impairment when a person says “I was drinking”. Mr. Joyce admitted to drinking.

He suggested in thecircumstances of the matter, there were reasonable and probable grounds to make the arrest and to make the demand for a breath sample. [44] When was the Applicant arrested? Was it when Constable Young said it to the Applicant or was it when he placed him in theback of the police car? He pointed out that the demand happened in the back of the police car and Constable Young had the benefit ofother information about the Applicant. He detected slurred speech by then. [45] Crown counsel reviewed what Constable Young knew at the moment he decided to arrest the Applicant.

He was notified of anaccident in Lark Harbour involving pedestrians. As he proceeded to Lark Harbour, in imperfect driving conditions, he received updatesthat two persons were deceased, the driver remained at the scene, and the driver admitted he was drinking. At one point, ConstableYoung did infer impairment because of the admission of drinking and the accident not being properly explained. [46] If the Court did not think that there were reasonable and probable grounds to make the arrest and the demand, then there has tobe at least a reasonable suspicion.

Constable Young could not leave the scene with the information he had. He was duty bound to at leastdetain the Applicant. He acknowledged the matter could have been handled a little better but Constable Young had to deal with this inreal time. [47] Reasonable suspicion and reasonable grounds for the purpose of

section 9 of the Charter have to be the same. The police werelawful in detaining the Applicant. The evidence should not be excluded because Constable Young said the wrong statement “You’reunder arrest” as opposed to “You’re being detained”. [48] In conclusion, Crown counsel stated that the approach to be followed is set out in R. v. Shepherd and R. v. Bush. The police inassessing this matter only have to be satisfied that mild impairment is enough. Reasonable and probable grounds should not bescrutinized as a trial issue. The grounds should be assessed in the context of an arrest.

The test is not a high one. [49] He pointed out that in all the circumstances, Constable Young had a lot of very persuasive information. He did not have a lotabout signs of alcohol consumption. However, the Applicant said he was drinking. [50] In Constable Young’s judgment, because the Applicant said he was drinking and it was an unexplained accident, that was asign of impairment. In all the circumstances, the Crown’s position was that this was reasonable. If that was not accepted, the Crownsubmitted that the police officer had at least the ability to detain the Applicant for investigative detention purposes.

The detention wasnot unlawful or arbitrary. [51] He argued strong evidence was presented that the police had grounds to make a demand for an offence committed within thepreceding three hours. The evidence was consistent with a recent accident. [52] If the Court finds that there has been a Charter infringement, a consideration of section 24(2) of the Charter has to beundertaken to determine whether the evidence obtained from the Applicant should be excluded. Crown counsel submitted that theevidence should not be excluded. [53] The Charter infringing conduct was not serious. The Applicant was definitely detainable.

The police had significant evidence.He suggested if the detention was a little premature, that is all it was. [54] The impact on the Charter interest of the Applicant was not significant. It was not a hard arrest. The police were notaggressive. The Applicant was cooperative. [55] With respect to society’s interest in an adjudication of the case on its merits, counsel suggested this matter was a very seriousone resulting in the death of two people. A Certificate of Analysis showed the blood alcohol readings of the Applicant. The Certificate isobviously very critical evidence.

No one was suggesting that the Applicant was grossly impaired and that heightens the importance of theCertificate. Society has an enormous interest in these cases being adjudicated on their merits. [56] Counsel concluded that there has to be a balancing of the factors under section 24(2) between society’s huge interest in havingthis case adjudicated on its merits with the very minor Charter infringement, if there was one, on the Applicant. The Certificate ofAnalysis was highly reliable evidence. If there was a breach under section 24(2), the evidence obtained should still be admitted at trial

because excluding the evidence in this case would bring the administration of justice into disrepute. The Applicant [ 57 ] Counsel for the Applicant took a very different position and did not see this as being a technical or trivial error. It was a case of two officers, one in particular – the arresting officer, attending a scene at 2:50 a.m. and having a suspect in custody at 2:55 a.m. without conducting any investigation other than speaking to a paramedic who told them where the driver could be located and that the driver said he had consumed alcohol.

Constable Young testified he had made the decision to arrest the Applicant before he got to the vehicle where he was. [ 58 ] Crown counsel had suggested there only had to be reasonable and probable grounds regarding “mild impairment” but paragraph 47 of R. v. Bush uses the words “Slight impairment to drive”. [ 59 ] Counsel suggested that one has to look at when the grounds to make an arrest and to make a breath demand crystalized in the officer’s mind. Then, there is an assessment of whether these are reasonable. [ 60 ] The officer had information that the Applicant was the driver and that he was drinking.

That was all the officer had. He had not seen the Applicant. He had not met him. He had not made any observations of his motor functions or his field of vision. Counsel suggested that in this case only reasonable suspicion is reached. Even if one considers other purported observations of the officer after the arrest, it does not give the officer reasonable and probable grounds. [ 61 ] The standard for reasonable and probable grounds has never been lowered but one has to look at the context of the events.

The police officer saying he was responding to an accident does not get him to reasonable and probable grounds. Although the Applicant admitted to consuming alcohol, that does not tell anything about the Applicant’s ability to operate a motor vehicle. That does not get the police officer to reasonable and probable grounds. [ 62 ] The officers arrived at the scene, got out of their vehicles, they went to where the Applicant - the driver - was and made an arrest. He pointed out that the arresting officer arrested a bystander. That goes to show the amount of forethought the officer had.

He arrested the wrong man first. That should be a real red flag. The officer only arrested the Applicant after he said he was the driver. The officer did not take the opportunity to speak to the Applicant. Counsel reiterated that the officer said the grounds were present before he got to the car and that the grounds for the breath demand were made out before he met the Applicant.

Counsel also argued that if the arrest was unlawful, any observations between the arrest and the breath demand cannot be considered, such as Constable Young’s observation that the Applicant was unsteady on his feet on his way to the police vehicle. [ 63 ] The Court has to consider what Constable Young, the arresting officer, saw and what was in his mind. Constable Peddle had mentioned the Applicant putting on the jacket inside out after he got out of the car. Constable Young did not note that. The observation of unsteadiness had to be considered in the context of the matter.

The Applicant was walking on a snow covered road downhill. This did not amount to reasonable and probable grounds. Constable Young’s observation that the Applicant was off balance when his handcuffs were being adjusted was answered by his response on cross-examination that this procedure was intended to provide a police officer with an advantage over the handcuffed individual. Counsel also referred to the statement by Constable Young that the Applicant had a slur in his speech between the time he was arrested and before the breath demand was made.

He noted that Constable Peddle had said he did not hear that. [ 64 ] Counsel pointed out that there is a slight difference in what is required for reasonable and probable grounds for a breath demand and for an arrest. The difference is time. For a breath demand, a police officer has to have reasonable and probable grounds that the offence was committed within the preceding three hours. We do not know when the accident happened. The police officer took no steps to determine if he was within the three hour time period.

If there are no reasonable grounds that the accident happened within three hours, then the demand is not valid and it is an unreasonable search and seizure. [ 65 ] Constable Peddle read a secondary caution to the Applicant as there was some uncertainty whether the Applicant remembered the earlier demand. Constable Peddle made a demand to the Applicant for a breath sample.

Counsel suggested that even if Constable Peddle was making a demand on his own grounds, it was not made as soon as practicable since the Applicant sat in a police car for over an hour. [ 66 ] He suggested that Constable Peddle did not have reasonable and probable grounds to believe an offence had been committed. [ 67 ] Counsel suggested that the law is the same for everyone. It is like this for the protection of the subject of the arrest or the subject of the demand.

The fact that the call was difficult and the police officer did not have much training is not something the Crown can fall back on. [ 68 ] There was no irregular driving here. The truck was in the correct lane. There were no skid marks behind the vehicle. There was no evidence of the Applicant’s driving. [ 69 ] In the analysis to be considered under section 24(2) of the Charter , counsel submitted that Constable Young’s actions were a serious breach. This was more than a technical or inadvertent error. The officer went to the scene.

He had his mind made up that he was going to arrest the driver of the vehicle for impaired driving because he heard he had something to drink. This was a flagrant violation of the Applicant’s rights in the circumstances. He argued that the Court ought not to endorse this behaviour by admitting the evidence. [ 70 ] With respect to the impact of the breach on the Charter protected rights of the Applicant, counsel noted the very close connection between the breach and the taking of the breath samples.

If not for the breach, there would be no breath demand and no intrusion on the Applicant’s Charter protected interests. Such circumstances weigh in favour of exclusion. [ 71 ] With respect to society’s interest in an adjudication of this case on its merits, counsel noted that blood alcohol evidence is generally reliable. It is an important part of the Crown’s case. The charges the Applicant is facing are serious. That is all the more reason

a person’s Charter protected rights should be guarded in a situation where rights have been violated. He referred to R. v. Bjelland, 2009SCC 38 at paragraph 65 where Fish, J. accurately encapsulates the Applicant’s position in this regard: 65 Finally, we have long accepted that an acquittal that results from the exclusion of evidence is warranted by overriding considerationsof justice. See R. v. Harrer, (SCC), [1995] 3 S.C.R. 562, at para. 42 (per McLachlin J., as she then was, concurring); R.v. Genest, (SCC), [1989] 1 S.C.R. 59, at pp. 82, 91 and 92 (per Dickson C.J., for the unanimous Court); R. v.

Collins, (SCC), [1987] 1 S.C.R. 265, at pp. 282-86. The policy of the law in this regard was well put by Samuel Freedman, thenChief Justice of Manitoba, in this well-known passage: The objective of a criminal trial is justice. Is the quest of justice synonymous with the search for truth? In most cases, yes. Truth andjustice will emerge in a happy coincidence. But not always.

Nor should it be thought that the judicial process has necessarily failed ifjustice and truth do not end up in perfect harmony... . [T]he law makes its choice between competing values and declares that it is betterto close the case without all the available evidence being put on the record. We place a ceiling price on truth. It is glorious to possess, butnot at an unlimited cost.

"Truth, like all other good things, may be loved unwisely -- may be pursued too keenly -- may cost too much." [72] The interests of maintaining the integrity of the administration of justice far outweighs society’s interests in the adjudication ofthe matter in a trial which uses unconstitutionally obtained evidence. [73] He concluded that, in these circumstances, the police who attended the scene had their mind made up to arrest the Applicant –the driver of the vehicle – and seize breath samples from him in the absence of reasonable and probable grounds without even seeinghim.

The cost of admitting the evidence against the Applicant at a trial is too much. This is not police conduct the Court should condone.Simply because the charges are serious is not a reason to cut the police a break. Applying the framework from R. v. Grant, 2009 SCC 32to the facts of this matter and the balancing factors under section 24(2) of the Charter favours exclusion of the evidence. The Crown in reply [74] Crown counsel reiterated that the Court has to take direction from R. v. Shepherd and R. v. Bush. He noted it is the officer’sreasonable and probable grounds under consideration.

There has to be an assessment of the circumstances surrounding each case. analysis [75] The Applicant alleges his rights under sections 8 and 9 of the Charter were breached. He further alleges that the police did nothave reasonable and probable grounds to arrest him very soon after their arrival at the scene of the accident. The police madeobservations of the Applicant after he was in custody, made a breath demand to the Applicant after his arrest, and subsequently obtainedbreath samples from him.

These samples were analyzed and the Crown intends to rely on this evidence at trial. [76] The Crown asserts that the police did have reasonable and probable grounds to arrest the Applicant and to make a breathdemand of him. [77] Constable Young and Constable Peddle arrived at the scene of the accident at 2:50 a.m. on December 26, 2016. The Applicantwas arrested for the offence of impaired operation of a motor vehicle causing death at 2:55 a.m. by Constable Young. He informed theApplicant of his rights at the time. The Applicant was brought to the police officer’s vehicle and read his rights.

The police officer alsomade a demand for a breath sample at 3 a.m. [78] The Applicant takes the position that the Court must consider the nature and quality of the information possessed by the policeofficer at the time his alleged reasonable and probable grounds crystalized and he decided to arrest the Applicant. [79] What information did Constable Young have when he decided to arrest the Applicant? The evidence discloses that ConstableYoung was informed prior to meeting the Applicant that: a. A motor vehicle accident had occurred in Lark Harbour involving pedestrians; b. The two pedestrians were deceased; c.

The driver was at the scene; and d. The driver said he had been drinking. [80] Constable Young testified that the Applicant smelled of alcohol. He was satisfied he had enough information regarding thesituation to make an arrest and that the whole matter happened quickly. [81] Constable Young observed that, after the arrest, the Applicant was unsteady on his feet, was off balance, and there was astronger smell of alcohol from him.

He acknowledged to the Applicant’s counsel that he did not make any notes regarding hisobservations about the Applicant having glassy eyes and slurred speech and that he should have made better notes. [82] Did Constable Young have reasonable and probable grounds to arrest the Applicant and to make a breath demand? Crowncounsel pointed out that the reasonable and probable grounds test includes a subjective and an objective component. In R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, [1990] A.C.S. no. 12, at pages 250 and 251, Cory, J. described the test as follows: In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on whichto base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable personplaced in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. Onthe other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required

to establish a prima facie case for conviction before making the arrest. [83] The Applicant’s counsel submitted that to arrest a motorist for impaired driving, a police officer must possess objective andsubjective reasonable and probable grounds to believe that the accused’s ability to operate a motor vehicle is impaired by alcohol.Counsel also submitted that the police power to arrest and to demand that a person provide a sample of breath pursuant to section 254(3)of the Criminal Code requires the officer performing the arrest or making the demand to have reasonable and probable grounds tobelieve that an offence has been committed.

These specific requirements for reasonable and probable grounds for the breath demand areset out in section 254(3) of the Criminal Code which states: 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hourshas committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soonas practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood, or . . . [84] In R. v. Shepherd, which was referenced earlier in these Reasons, the Supreme Court of Canada set out a number of statementsregarding reasonable and probable grounds to demand breath samples which are applicable to the matter now before this Court. I notethe following: [13] . . . Section 254(3) of the Criminal Code, R.S.C. 1985, c.

C-46, requires that an officer have reasonable grounds to believe that thesuspect has committed an offence under s. 253 of the Code (impaired driving or over 80) before making a breathalyzer demand. As thisCourt explained in R. v.

Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 51: "The requirement in s. 254(3) thatreasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to a lawful search andseizure under s. 8 of the Canadian Charter of Rights and Freedoms." . . . [15] As this Court explained in Collins, where evidence is obtained as a result of a warrantless search or seizure, the onus is on theCrown to show that the search or seizure was reasonable.

A search will be reasonable if it is authorized by law, the law itself isreasonable, and the manner in which the search was carried out is reasonable (Collins, at p. 278). . . . [16] As noted above, s. 254(3) of the Criminal Code requires that the officer have reasonable grounds to believe that within thepreceding three hours, the accused has committed, or is committing, an offence under s. 253 of the Criminal Code.

The onus is on theCrown to prove that the officer had reasonable and probable grounds to make the demand because the Crown seeks to rely on breathsamples obtained as a result of a warrantless search. . . . [17] As this Court noted in Bernshaw, there is both a subjective and an objective component to establishing reasonable and probablegrounds; that is, the officer must have an honest belief that the suspect committed an offence under s. 253 of the Criminal Code, andthere must be reasonable grounds for this belief (Bernshaw, at para. 48). . . . . . . [21] In his ruling, the trial judge rightly stated that the totality of the circumstances should be considered in determining whether theofficer had reasonable and probable grounds to make the breath demand. . . . [85] In R. v.

Bush, the Ontario Court of Appeal also set out a number of pertinent statements in reviewing the standard of reasonableand probable grounds in drinking and driving cases which I summarize as follows: a. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often,the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. b. In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The

officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable. c. Police in a drinking and driving investigation were involved in quick but informed decisions whether there were reasonable and probable grounds. d. In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test. e. Impairment may be established where the prosecution proves any degree of impairment from slight to great. f.

Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function, whether impacting on perception or field of vision, reaction or response time, judgment and regard for the rules of the road. g. The test is whether, objectively, there were reasonable and probable grounds to believe the suspect’s ability to drive was even slightly impaired by the consumption of alcohol. h. Whether reasonable and probable grounds exist is a fact-based exercise dependent upon all the circumstances of the case. The totality of the circumstances must be considered. i.

An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which ones are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed. j. Consideration of the totality of the circumstances includes the existence of an accident. k.

There is no minimum time period nor mandatory questioning that must occur before an officer can objectively have reasonable and probable grounds. l. In making his or her determination, the officer is not required to accept every explanation or statement provided by the suspect. That the officer turned out to be under a misapprehension is not determinative. The important fact is not whether the officer’s belief was accurate. It is whether it was reasonable at the time of the arrest. What must be assessed are the facts as understood by the peace officer when the belief was formed. m.

An officer is required to assess the situation and competently conduct the investigation he or she feels appropriate to determine if reasonable and probable grounds exist. In some cases, that might include interviewing witnesses and/or the suspect if necessary.

In others, the officer’s observations and information known at the time may readily establish the requisite grounds. [ 86 ] I have reviewed the Application of the Applicant, the evidence entered at the voir dire, the written submissions of counsel, their oral submissions, and the case law filed with the Court. [ 87 ] The Applicant argues that his rights under sections 8 and 9 of the Charter were breached because the police officer did not have reasonable and probable grounds to arrest him and to make a breath demand. [ 88 ] The Crown asserts that the police officer did have reasonable and probable grounds to take those actions. [ 89 ] There is a subjective and objective component in the reasonable grounds test which was described in R. v.

Storrey . Two other cases, R. v. Sheppard and R. v. Bush , provide a number of pertinent statements regarding reasonable and probable grounds that I have considered in my assessment of this matter. [ 90 ] Having considered all of the evidence placed before the Court in light of the law, I find that the police officer did have reasonable and probable grounds to arrest the Applicant and to make breath demands of him. In my view, from the totality of the circumstances present on the early morning of December 26, 2016, the police officer had a subjective belief the Applicant had committed an offence.

Those grounds were also justifiable from an objective point of view whereby a reasonable person placed in the position of the police officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest. [ 91 ] As a result of my finding, the Application is dismissed. _____________________________ Brian F. Furey Justice