File Number: 36777

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA) BETWEEN:

ERIC ANDREW ROWSON Appellant (on appeal) (Appellant) - and -

HER MAJESTY THE QUEEN Respondent (Respondent)

FACTUM OF THE RESPONDENT ATTORNEY GENERAL OF ALBERTA PURSUANT TO RULE 42 OF THE RULES OF THE SUPREME COURT OF CANADA

CHRISTINE RIDEOUT Counsel for the Respondent

D. LYNNE WATT Ottawa Agent for the Respondent

Justice and Solicitor General Appeals, Education & Prosecution Policy Branch 3rd Floor, Centrium Place 300, 332 – 6 Avenue S.W. Calgary, AB T2P 0B2 Phone: (403) 297-6005 Fax: (403) 297-3453 Email: [email protected]

Gowling WLG (Canada) LLP Barristers & Solicitors 2600, 160 Elgin Street Ottawa, ON K1P 1C3 Phone: (613) 233-1781 Fax: (613) 563-9869 Email: [email protected]

JENNIFER RUTTAN Counsel for the Appellant

MARIE-FRANCE MAJOR Ottawa Agent for the Appellant

Ruttan Bates Barristers & Solicitors 600, 630 – 6 Avenue S.W. Calgary, AB T2P 0S8 Phone: (403) 237-0025 Fax: (403) 237-0566 Email: [email protected]

Supreme Advocacy LLP 100, 340 Gilmour Street Ottawa, ON K2P 0R3 Phone: (613) 695-8855 Fax: (613) 695-8580 Email: [email protected]

i

TABLE OF CONTENTS Page No. PART I – OVERVIEW AND FACTS ......................................................................................... 1 OVERVIEW ................................................................................................................................... 1 STATEMENT OF FACTS ................................................................................................................. 2 The Collision........................................................................................................................... 2 The First Responders – Fire, EMS, and Police ....................................................................... 3 The Initial Detention (Constable Baker) ................................................................................. 5 The Investigative Detention (Constable Maerz) ..................................................................... 5 The Arrest (Constable Ross) ................................................................................................... 8 The District Office (Constable Ross).................................................................................... 10 The Checkstop Bus ............................................................................................................... 12 History of the Proceedings .................................................................................................... 13 Trial Judge’s Voir Dire Ruling ......................................................................................... 13 Reasonable and Probable Grounds to Arrest ................................................................ 13 Section 24(2) ................................................................................................................. 14 Alberta Court of Appeal.................................................................................................... 15 O’Ferrall J.A. ................................................................................................................ 15 Martin J.A., concurring ................................................................................................. 16 Veldhuis J.A., dissenting .............................................................................................. 16 PART II – ISSUES ...................................................................................................................... 18 PART III – ARGUMENT .......................................................................................................... 19 QUESTION IN ISSUE A – REASONABLE AND PROBABLE GROUNDS ............................................. 19 Applicable Principles ............................................................................................................ 19 Application to Case at Bar .................................................................................................... 21 The Subjective Element .................................................................................................... 23 The Objective Element ..................................................................................................... 27 QUESTION IN ISSUE B – BREATH SAMPLE EVIDENCE ................................................................. 29 Applicable Principles ............................................................................................................ 30 Application to Case at Bar .................................................................................................... 32 Seriousness of the Charter-Infringing State Conduct ....................................................... 33 Impact on the Appellant’s Charter-Protected Interests ..................................................... 36 Society’s Interest in an Adjudication on the Merits.......................................................... 37 The Alleged Unlawful Arrest................................................................................................ 38 THE DANGEROUS DRIVING COUNTS .......................................................................................... 39 CONCLUSION.............................................................................................................................. 40 PART IV – COSTS ..................................................................................................................... 40 PART V – ORDER SOUGHT ................................................................................................... 40 PART VI - TABLE OF AUTHORITIES ................................................................................. 41 PART VII – LEGISLATION AT ISSUE ................................................................................. 44 CRIMINAL CODE ........................................................................................................................ 44 249(1) Dangerous operation of motor vehicles, vessels and aircraft .................................... 44

ii 249(1) Conduite dangereuse ................................................................................................. 44 254(2) Testing for presence of alcohol or a drug .................................................................. 45 254(2) Contrôle pour vérifier la présence d'alcool ou de drogue ......................................... 45 254(3) Samples of breath or blood........................................................................................ 45 254(3) Prélèvement d'échantillon d'haleine ou de sang ........................................................ 46 495(1) Arrest without warrant by peace officer .................................................................... 46 495(1) Arrestation sans mandat par un agent de la paix ....................................................... 47 CHARTER OF RIGHTS AND FREEDOMS ........................................................................................ 47 9. Detention or imprisonment ............................................................................................... 47 9. Détention ou emprisonnement .......................................................................................... 47 10. Arrest or detention .......................................................................................................... 47 10. Arrestation ou detention.................................................................................................. 48 24(2) Exclusion of evidence bringing administration of justice into disrepute .................... 48 24(2) Irrecevabilité d'éléments de preuve qui risqueraient de déconsidérer l'administration de la justice ................................................................................................. 48 TRAFFIC SAFETY ACT ................................................................................................................ 49 69. Duty of driver, etc. re accident........................................................................................ 49 71. Reports of drivers re accidents ........................................................................................ 49 USE OF HIGHWAY AND RULES OF THE ROAD REGULATION – ALTA. REG. 304/2002 (TRAFFIC SAFETY ACT) ............................................................................................................. 50 37. Stop signs ........................................................................................................................ 50 38. Proceeding after stopping ............................................................................................... 50

1

FACTUM OF THE RESPONDENT PART I – OVERVIEW AND FACTS Overview 1.

While impaired by alcohol and facing two stop signs, the Appellant drove his half-ton

truck onto a highway and broadsided a car travelling with the right of way. He made no attempts to avoid the collision. He did not apply his brakes and was, in fact, accelerating when he struck the car. The collision sent the car and its four occupants spinning into a ditch. The Appellant’s truck was sent spinning into the same ditch. Fire, paramedics, and police responded and worked to free the car’s seriously injured occupants. All four were transported to hospital; a helicopter (STARS Air Ambulance) was required to transport a victim with life-threatening injuries. 2.

In the chaotic scene that followed, the Appellant identified himself to police officers as

the truck’s driver. He told them that he stopped at the stop sign and thought he had time to make it. He was placed in the back of a police vehicle to ensure that he was in a safe place to prepare his collision statement and to make way for the incoming air ambulance. A short time later, he was placed under investigative detention. Soon after, he was arrested for dangerous driving causing injury. After he arrived at the police station, the arresting officer smelled alcohol on his breath. Breath samples confirmed he was over the legal limit. 3.

At his judge-alone trial, the Appellant disputed the voluntariness of his statements,

alleged numerous Charter violations, and sought the exclusion of his statements and breath test results. The Trial Judge found that his statements were voluntary. She found some Charter breaches, but declined to exclude the breath test results. She found him guilty of three counts of impaired driving causing bodily harm, three counts of dangerous driving causing bodily harm, and one count of driving over the legal limit. 4.

The Appellant appealed his convictions to the Alberta Court of Appeal, where the Crown

conceded two additional Charter breaches. The majority dismissed his appeal. The dissenting justice would have allowed the appeal, excluded the evidence, and entered acquittals based on a further breach (an unlawful arrest). The Appellant appeals as of right to this Court.

2 5.

The Appellant submits that the Trial Judge and the majority of the Court of Appeal erred

in finding that the officer had reasonable and probable grounds for arrest. He submits that the breath test results ought to be excluded on the basis of this s. 9 breach and/or the additional breaches conceded by the Crown. The Respondent submits that the Trial Judge did not err in finding that the Appellant’s arrest was lawful and that the majority of the Court of Appeal did not err in refusing to exclude the breath tests results based on the conceded breaches.

Statement of Facts 6.

The Respondent is unable to accept the Appellant’s Statement of Facts. There are factual

errors and argument contained therein. More significantly, there are key omissions including the Trial Judge’s findings of fact and credibility. A review of the evidence, the applicable findings, and the history of the proceedings follows. 1 The Collision 7.

The collision occurred on January 14, 2010 at the intersection of Highway 22X (also

known as Spruce Meadows Trail) and 24th Street. Highway 22X is a paved rural highway near Calgary with a posted speed limit of 90 km/h. It has two lanes of travel for eastbound traffic and two lanes of travel for westbound traffic. It intersects with 24th Street. The latter is a paved street with a posted speed limit of 80 km/h. It has single lanes of travel for northbound and southbound traffic. There are two stop signs facing the southbound traffic and two stop signs facing the northbound traffic. There are no stop signs facing the traffic on Highway 22X. As a result, the Highway 22X drivers enjoy the right of way at the intersection. 2 8.

At approximately 9:00 p.m., 20 year old Jesse Slessor was driving his white car

eastbound on Highway 22X. As he approached the 24th Street intersection, Slessor was driving

1

At the trial level, both the voir dire ruling and the reasons for conviction were labelled “Reasons for Judgment”. The Respondent will refer to the former as “Ruling” and the latter as “Reasons for Judgment”. In addition, the Respondent will refer to the s. 254(2) screening demand as the “ASD demand” and the s. 254(3) evidentiary breath demand as the “breath demand” – Criminal Code, R.S.C. 1985, c. C-46, ss. 254(2) and (3) [see pp. 44-46 of these materials]. 2 Appellant’s Record – Reasons for Judgment – Vol. I, Tab 1(B) at 42/21-30, 42/37, 43/22-23, 49/21-23. See also Respondent’s Record – Calgary Police Service (“CPS”) Collision Reconstruction Report – Tab 3(A) at pp. 68-70

3 at a speed of 76 km/h. His headlights were activated. He was travelling with 17 year old Melanie Milot, 17 year old Stephanie Tuohy, 16 year old Tannis Caravan, and Caravan’s dog. 3 9.

As Slessor approached the intersection, the Appellant was driving his black truck

northbound on 24th Street. The Appellant stopped at the two stop signs and then quickly accelerated his truck into the intersection. He struck Slessor’s car at a 90-degree angle. His truck’s left-turn signal was activated. He made no attempts to brake or avoid the collision and was accelerating when he crashed into the car. 4 10.

As a result of the collision, Slessor’s car spun off the road and into a ditch where it

uprooted a tree. The Appellant’s truck spun clockwise, flipped onto its side, and ended up in the same ditch where it righted itself. 5 The car’s occupants suffered injuries ranging in severity. 6 Slessor’s injuries were the least severe. 7 Caravan suffered facial lacerations and her dog was killed. 8 Tuohy suffered a compound fracture to her femur. 9 Milot suffered a severe traumatic brain injury with a closed head injury and subarachnoid hemorrhaging, a fracture to her left femur, fractures to her rib, and lacerations to her scalp, spleen, and liver. She also suffered cognitive deficits. 10 11.

At the time of the collision, the intersection was illuminated. It was a clear night with dry

roads. The stop signs were clear and discernable. There were no environmental factors contributing to the collision and neither vehicle had any pre-existing mechanical defects. 11 The First Responders – Fire, EMS, and Police 12.

The collision resulted in a “very busy”, “chaotic”, and “very intense and dynamic” scene.

The scene was attended to by many first responders including the fire department, emergency medical services (“EMS”), and police. Fire and EMS crews were working around Slessor’s car 3

Appellant’s Record – Reasons for Judgment – Vol. I, Tab 1(B) at 42/33-34, 43/7-8, 43/20-22, 44/7-8; Respondent’s Record – CPS Collision Reconstruction Report – Tab 3(A) at p. 66 4 Appellant’s Record – Reasons for Judgment – Vol. I, Tab 1(B) at 42/37-43/1, 43/28-36, 44/1-10, 44/28-29, 47/2527; Respondent’s CPS Collision Reconstruction Report – Tab 3(A) at p. 70 5 Appellant’s Record – Reasons for Judgment – Vol. I, Tab 1(B) at 44/12-26 6 See also Respondent’s Record – Excerpt from Reasons for Sentence – Tab 2(C) at pp. 63-64 7 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 2/para. 3 8 Appellant’s Record – Reasons for Judgment – Vol. I, Tab 1(B) at 44/18-19, 48/8-10 9 Appellant’s Record – Reasons for Judgment – Vol. I, Tab 1(B) at 48/10 10 Appellant’s Record – Reasons for Judgment – Vol. I, Tab 1(B) at 48/12-16 11 Appellant’s Record – Reasons for Judgment – Vol. I, Tab 1(B) at 42/24-27, 44/30-33, 49/16-27

4 trying to extract the victims. Police helped prepare for the arrival and departure of the air ambulance for the victim who sustained life-threatening injuries. 12 13.

At 9:07 p.m., Cst. Robinson and his partner Cst. Moore arrived on scene. They were the

first unit to arrive. They attempted to ascertain what happened, who was involved, and the extent of the injuries. Cst. Robinson saw a male (later identified as the Appellant) standing alone at the corner of the intersection. He asked the Appellant if he saw what happened. The Appellant pointed to the black truck and identified himself as the driver. Cst. Robinson left the Appellant with his partner and went to speak to others at the scene. 13 14.

After her partner left, Cst. Moore began speaking with the Appellant. She asked him if

he required medical attention. The Appellant said no. She asked him if he had anything to drink that night. The Appellant responded “not at all” or “no, I have not.” She asked him if he stopped at the stop sign. The Appellant responded “yes, I thought I had time to make it”. She obtained his driver’s licence, recorded his particulars, and went to her vehicle to obtain witness statements. 14 While she was at her vehicle, Cst. Robinson approached her with Slessor. He identified Slessor as the driver of the white vehicle. Cst. Moore looked back at the Appellant and saw Cst. Maerz approaching and talking to him. She turned her attention to Slessor. 15 15.

Cst. Baker and her partner Cst. Maerz arrived on scene at 9:11 p.m. Within five minutes,

Cst. Baker approached the Appellant. He was still standing at the scene. The Appellant identified himself as the driver of the black truck. She questioned him about the accident. He stated that he had been driving on 24th Street and was trying to cross over 22X, that he stopped at the stop sign, and that he collided with the white car when he proceeded through. 16 16.

As Cst. Baker spoke to the Appellant, Cst. Maerz was speaking with Cst. Robinson. Cst.

Robinson was in the ditch with the white car. When Cst. Maerz asked him if he needed anything, Cst. Robinson pointed out the Appellant as the driver of the black truck. Cst. Maerz 12

Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 2/para. 5, p. 36/para. 164; Appellant’s Record – Cst. Moore’s testimony – Vol. I, Tab 3(B) at 131/3-8 13 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 3/para. 7, p. 5/paras. 11-12, p. 6/para. 17 14 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at pp. 5-6/paras. 13-14 15 Appellant’s Record – Cst. Moore’s testimony – Vol. I, Tab 3(B) at 129/13-35 16 Appellant’s Record – Cst. Baker’s preliminary hearing testimony – Vol. II, Tab 4(B) at 130/12-131/31; Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 6/para. 15

5 qjoined Cst. Baker in questioning the Appellant. Cst. Maerz asked him where he was coming from. The Appellant said Okotoks. Cst. Maerz asked if he had been drinking that night. The Appellant said that he had not. Cst. Maerz left the Appellant with Cst. Baker, and went to find an officer to accompany one of the victims to the hospital on the air ambulance. 17 17.

Constables Robinson, Moore, Baker, and Maerz did not observe indicia of impairment in

their dealings with the Appellant. 18 The Initial Detention (Constable Baker) 18.

After Cst. Maerz left (at approximately 9:18 p.m. to 9:20 p.m.), Cst. Baker walked the

Appellant to her vehicle and placed him in the back seat with the doors closed (locking the vehicle from the inside). She put him in the vehicle because there was a lot of people around and a lot going on at the scene. The air ambulance was going to be landing and she wanted the Appellant somewhere where he was “out of the way”. 19 After he was in the vehicle, Cst. Maerz approached Cst. Baker and requested that she accompany the victim in the air ambulance. 20 19.

Several officers, including Cst. Baker, testified that it was ordinary police procedure at a

motor vehicle collision scene to separate the drivers by putting them into two different police vehicles, often to obtain written statements. 21 The Trial Judge found that Cst. Baker was acting in good faith and did not intend to detain the Appellant when she put him in the vehicle. She also found that Cst. Baker only wanted to put him in a safe and secure place to obtain a statement under the provincial legislation and to keep him out of the way for the incoming air ambulance. 22 The Investigative Detention (Constable Maerz) 20.

Cst. Maerz returned to the police vehicle approximately five to 10 minutes after the

Appellant had been placed inside. He observed the Appellant talking on his cell phone. He told the Appellant to hang up and advised him that he was “under investigative detention in relation to the accident.” He did this because somebody had indicated that “there was a stop sign 17

Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 6/para. 16; Appellant’s Record – Cst. Maerz’s testimony – Vol. I, Tab 3(C) at 151/28-153/17 18 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 3/para. 7 19 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 9/para. 24 20 Appellant’s Record – Cst. Baker’s preliminary hearing testimony – Vol. II, Tab 4(B) at 144/37-40 21 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 9/para. 24 22 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 11/para. 33, p. 35/para. 162

6 violation or something”. He testified that he forgot to advise the Appellant of his right to counsel due to the hectic and intense scene that was going on. He apologized. 23 21.

The Trial Judge found that Cst. Robinson had likely told Cst. Maerz about the stop sign

violation. 24 She accepted that Cst. Maerz genuinely believed that there was some criminal activity with respect to the serious accident and that his belief was objectively reasonable. She further found that he was acting in good faith when he detained the Appellant and forgot to advise him of his right to counsel. 25 22.

At 9:14 p.m., Cst. Ross – a member of the specialized Traffic Unit – arrived at the

location. He was new to the Traffic Unit, but had been a police officer for 22 years. 26 He was on traffic duty in the area when the call came in. He responded in case the Traffic Unit was required. EMS had advised over the air that the injuries were serious. 27 23.

At 9:20 p.m., Cst. Ross arrived at the collision site. He testified that he realized that an

eastbound collision had taken place. He came across an officer he did not recognize and asked what happened. The officer advised him that the black truck Cst. Ross had seen in the ditch had gone through the stop sign at 24th Street and collided with a white car which Cst. Ross also saw in the ditch. When he asked where the drivers were, the officer pointed to a police vehicle with the driver of the black truck. 28 24.

Between 9:25 p.m. and 9:30 p.m., Cst. Ross approached the police vehicle and spoke to

Cst. Maerz. 29 He testified that he believed the Appellant was being dealt with like any regular driver in a collision where the drivers are separated and statements are obtained. Travelling to the scene, he had heard an officer state over the air that he didn’t think alcohol was involved. He had heard this once more before his arrival. 30

23

Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 3/para. 7, p. 11/paras. 34-35, p. 13/para. 41 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 13/para. 42 25 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at pp. 13-14/paras. 44-45, pp. 35-36/paras. 163-164 26 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 14/para. 48 27 Appellant’s Record – Cst. Ross’s testimony – Vol. II, Tab 3(D) at 2/37-3/10 28 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 14/para. 48; Appellant’s Record – Cst. Ross’s testimony – Vol. II, Tab 3(D) at 4/5-18 29 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 14/para. 48 30 Appellant’s Record – Cst. Ross’s testimony – Vol. II, Tab 3(D) at 7/12-25 24

7 25.

Cst. Ross testified that, after he arrived at the vehicle, Cst. Maerz told him that the

individual in the back was the driver of the black vehicle and had told him (Cst. Maerz) that he had not had anything to drink. 31 Cst. Ross opened the door and began speaking to the Appellant. He testified that one of his primary functions when first attending a collision scene is to clarify and ensure that drivers were sober and to eliminate the probability or possibility of alcohol in one of the drivers. He approached the Appellant with this investigative purpose in mind. 32 26.

Cst. Ross testified that he asked the Appellant if he had anything to drink that evening.

The Appellant said no. He asked him where he was coming from. The Appellant said a friend’s. He asked where his friend’s was. The Appellant said Okotoks. He asked him once more if he was sure he’d had anything to drink. The Appellant said no. 33 27.

During this time, Cst. Ross smelled a “very strong odour of gum” that was “very, very

fresh”. He asked what he was chewing. The Appellant said chewing gum. He asked him when he put the gum in his mouth. The Appellant told him prior to the collision. He found this to be very unusual, and believed the Appellant had just put the gum in his mouth. He asked the Appellant to spit it out so that he could do a proper screening for breath alcohol. 34 28.

After the Appellant spat out the gum, Cst. Ross asked him to blow out towards him. The

Appellant attempted a “fake blow” where no air came out. The “fake blow” caused Cst. Ross to question his sobriety given his police experience dealing with impaired drivers. He felt the Appellant’s actions did not corroborate his statements that he had nothing to drink that evening. Seldom had he come across someone chewing fresh gum after a collision, and the “fake blow” was characteristic of people who are trying to hide alcohol in their system after they are asked to blow into the roadside instrument. 35 The Trial Judge accepted that Cst. Ross undertook these measures to confirm or deny reasonable grounds to support a breath demand. 36 31

Appellant’s Record – Cst. Ross’s testimony – Vol. II, Tab 3(D) at 7/3-10. Cst. Maerz testified that he thought he told Cst. Ross that the Appellant had been placed under investigative detention. Cst. Ross testified that he could not recall being told this. The Trial Judge found that it was more likely Cst. Maerz did not mention this to Cst. Ross. Appellant’s Record – Ruling – Vol. I, Tab 1(A) at pp. 14-15/paras. 49-50 32 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 14/para. 48, p. 15/para. 51 33 Appellant’s Record – Cst. Ross’s testimony – Vol. II, Tab 3(D) at 9/25-36 34 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 15/para. 52; Appellant’s Record – Cst. Ross’s testimony – Vol. II, Tab 3(D) at 9/38-10/17 35 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 15/para. 53 36 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 20/paras. 75-76

8 29.

Cst. Ross then advised his sergeant that he did not think it was correct that alcohol was

not involved in the collision, and that he felt alcohol was involved with the Appellant. He suggested an ASD. His sergeant told him that an ASD should not be conducted if he could not smell alcohol on the Appellant, and if the Appellant stated that he had not been drinking. He agreed and, between 9:30 p.m. and 9:33 p.m., returned to Cst. Maerz’s vehicle. 37 30.

When he arrived, Cst. Maerz had the door open with the Appellant ready for the ASD.

Cst. Ross advised him that he would not be proceeding with the test. Cst. Ross asked the Appellant if he was sure that he had nothing to drink. The Appellant replied that he had not. Cst. Ross asked if his friend in Okotoks would corroborate his statement. The Appellant said yes, and provided a name he did not comprehend. Cst. Ross thanked him and closed the door. 38 The Arrest (Constable Ross) 31.

As he was awaiting the arrival of other Traffic Unit members, Cst. Ross observed the

Appellant texting on his phone. He opened the door and asked who he was talking to. The Appellant stated that he was talking with the lady at the party to advise her that Cst. Ross may be giving her a call. 39 At 9:37 p.m., Cst. Ross arrested the Appellant for dangerous driving causing injury, informed him of his right to counsel, and seized his phone. He arrested the Appellant because he did not want him interfering with evidence (including speaking to people at the party before he could) and based on the information he had been given about the collision. He believed that the Appellant’s action of continuing into the intersection was a dangerous act which caused the collision. The Appellant asserted his right to counsel. 40 32.

At 9:39 p.m. or 9:40 p.m., Cst. Ross advised his sergeant that he had arrested the

Appellant. His sergeant told him that if he was going to get a statement, it should be audiotaped and videotaped. 41 At 9:42 p.m., Cst. Ross “re-Chartered” the Appellant. He advised him that he was under arrest for dangerous driving causing injury and possibly impaired driving causing injury. He included “possibly impaired driving causing injury” because he did not have the 37

Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 15/para. 53 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 15/para. 54 39 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 20/para. 78 40 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 21/para. 79; Appellant’s Record – Cst. Ross’s testimony – Vol. II, Tab 3(D) at 14/33-37 41 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 21/para. 80 38

9 grounds to arrest the Appellant for the offence, but wanted him to know that he was still investigating him for it. He told the Appellant that he could not allow him to access counsel at that time due to privacy issues. 42 33.

Cst. Ross remained at the scene awaiting direction from his sergeant regarding where to

take the Appellant for a statement (the Traffic office did not have the necessary recording equipment). 43 He did not allow the Appellant access to counsel at the scene due to privacy issues: he was in the back of a police vehicle, his cell phone had been taken away, and Cst. Ross could not leave him alone in the back seat talking on the phone. 44 34.

The Trial Judge found that Cst. Ross’s concerns were in good faith. It was not practical

to allow the Appellant to use his own cell phone in the back of the vehicle given Cst. Ross’s concerns about potential witness interference and the fact that the Appellant had already used his phone once to contact a potential witness in the back of a police vehicle. 45 35.

Between 9:50 p.m. and 10:00 p.m., as Cst. Ross awaited word from his sergeant, Cst.

Laurence approached the vehicle and initiated a conversation with him. Concerned that his own sense of smell may not have been working that evening, Cst. Ross asked him to approach the Appellant to see if he could smell any alcohol on his breath. 46 Cst. Laurence opened the back door and asked the Appellant his name and what happened. The Appellant identified himself and said, “I was north on 24th Street. I stopped. I saw the car and thought I had enough time to get across the road.” Cst. Laurence did not smell alcohol or observe indicia of impairment. 47 36.

Cst. Ross was subsequently approached by another officer at the vehicle. The officer

indicated that the Appellant’s parents were present. He told the officer to tell the parents that their son was fine, but that they would be unable to speak to him because he was under arrest. Cst. Ross relayed this information to the Appellant and declined his request to speak to them. Wanting to ensure that no one else required medical assistance, Cst. Ross asked the Appellant if 42

Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 21/para. 81; p. 24/para. 95; Appellant’s Record – Cst. Ross’s testimony – Vol. II. 3(D) at 16/38-17/13 43 Appellant’s Record – Cst. Ross’s testimony – Vol. II, Tab 3(D) at 70/10-34 44 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 24/para. 95 45 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 25/para. 102, p. 36/para. 165 46 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 23/para. 90 47 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 23/para. 91; Appellant’s Record – Cst. Laurence’s testimony – Vol. II, Tab 3(E) at 111/10-15

10 there was anyone else in his vehicle. This was the only other question he asked while the Appellant was in the back of the vehicle. The Appellant asked Cst. Ross to make inquiries as to the sobriety of the other driver. Cst. Ross did. 48 37.

The Trial Judge found that, after his arrest, the Appellant had very limited interactions

with Cst. Ross until he was afforded his right to counsel. The interactions he did have were not inappropriate and the questions asked were not prejudicial. 49 The District Office (Constable Ross) 38.

At 10:13 p.m., Cst. Ross decided not to wait for his sergeant any longer. He left the

collision scene and drove the Appellant to the nearest district office. 50 They arrived 10 minutes later. The Appellant was searched and booked. At 10:27 p.m., Cst. Ross placed him in an interview room. A minute later, he read the Appellant the police caution for dangerous driving causing injury and possibly impaired driving causing injury. He testified that he read the caution because it had been some time since he had arrested the Appellant. Before he spoke to his lawyer, Cst. Ross wanted to make it abundantly clear what his rights were, what was happening, what he was charged with, and how serious the injuries were (including that a person may have died). 51 39.

The Trial Judge accepted that Cst. Ross read the caution to ensure that the Appellant was

aware of his jeopardy. She found it was not improper or inappropriate to read the caution given the delay in time since the Appellant had been arrested and Chartered. She further found that it was not meant to procure a self-incriminating statement and was intended for the Appellant’s benefit. 52 40.

As he read the caution, Cst. Ross was sitting approximately 2 ½ to three feet from the

Appellant. When the Appellant answered “yes, sir” and when he was breathing, Cst. Ross smelled alcohol on his breath. He tried to contact his sergeant to advise him that he could now

48

Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 24/paras. 96-98 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at pp. 25-26/paras. 104-105 50 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 24/para. 99; Appellant’s Record – Cst. Ross’s testimony – Vol. II, Tab 3(D) at 71/5-9 51 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 26/para. 106 52 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at pp. 30-31/paras. 134-135 49

11 smell alcohol, but ended up speaking with another officer. As a result of that conversation, at 10:45 p.m., he read the Appellant the ASD demand. 53 41.

Because of the circumstances, Cst. Ross decided to allow the Appellant the opportunity

to consult with counsel before deciding whether to take the test. He told the Appellant that individuals were not normally allowed to contact a lawyer before the test but, since he was already arrested, they were going to allow him to phone his lawyer before responding. He advised the Appellant to ensure his lawyer was aware of the seriousness of the injuries. 54 42.

The Appellant confirmed that he wanted to speak to his own lawyer rather than a free

one. He asked for his cell phone to contact his friend for the lawyer’s number. Cst. Ross told him to check the phone books first. After five minutes of looking, Cst. Ross allowed him to use his cell phone to call the friend. At 10:54 p.m., the Appellant left a message on his lawyer’s answering machine with a number where he could be reached. 55 43.

Cst. Ross told the Appellant that they would wait until 11:00 p.m. to see if his lawyer

called back. He thought six minutes was reasonable because, in his 22 years as a police officer, a defence lawyer never called back after a certain hour of night. When the lawyer did not call back by the designated time, Cst. Ross advised the Appellant that he could call a free lawyer. The Appellant called one of the displayed Legal Aid numbers and left a message. He then called the second displayed number. He spoke to a lawyer for seven minutes. At 11:10 p.m., he confirmed that he was finished and commented that the lawyer was “a bit of an ass”. 56 44.

At 11:11 p.m., Cst. Ross asked if he was willing to provide a breath sample. The

Appellant confirmed he was. At 11:13 p.m., the Appellant provided an ASD sample which registered a fail. 57 At 11:16 p.m., Cst. Ross read the breath demand. He asked the Appellant if he wished to call the free lawyer number again. The Appellant responded that he wanted to contact his own lawyer. He was allowed to do so and, once again, reached the lawyer’s 53

Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 26/paras. 107-108 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 26/para. 109; Appellant’s Record – Cst. Ross’s testimony – Vol. II, Tab 3(D) at 30/8-21 55 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 26/paras. 109, 111-112 56 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at pp. 26-27/paras. 110, 112-114; Appellant’s Record – Cst. Ross’s testimony – Vol. II, Tab 3(D) at 33/37-38. The Appellant’s lawyer never called back. 57 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 27/paras. 115, 117 54

12 answering machine. At 11:17 p.m., the Appellant called the Legal Aid number. A minute later, he confirmed he was finished. 58 45.

Cst. Ross advised the Appellant that they would be going elsewhere for the breath

samples (the instrument at the district office was not functioning). As he was leaving the interview room, the Appellant pointed to a Yellow Pages ad for an impaired driving lawyer and asked if he could phone that number. He was allowed to do so. At 11:19 p.m., he phoned the number and reached an answering machine. He hung up immediately and told Cst. Ross “let’s go”. 59 The Checkstop Bus 46.

At 11:35 p.m., Cst. Ross and the Appellant arrived at the Checkstop Bus. The

Appellant’s first breath sample (at 11:44 p.m.) was 117 mg percent. His second sample (at 00:04 a.m.) was 105 mg percent. The qualified breath technician who administered the test smelled alcohol on the Appellant’s breath. He also observed that the Appellant’s eyes were red and bloodshot and his face flushed. 60 47.

An expert confirmed that, assuming he stopped drinking 30 minutes before the collision,

the Appellant’s BAC would have been between 131 and 161 mg percent when he struck the car. If he had continued drinking alcohol right up to the collision, his BAC would have been between 111 and 141 mg percent. 61 The expert also confirmed that a person can be impaired by alcohol without showing outward signs, and that everyone’s ability to operate a vehicle is impaired at 100 mg percent. 62 48.

On January 17, 2010, Cst. Ross attended the Remand Centre to obtain a driver’s

statement from the Appellant and to serve the administrative suspension. When Cst. Ross asked if he was willing to give a statement, the Appellant politely declined on the advice of counsel. 63

58

Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 27/para. 118 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 27/para. 119 60 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 5/para. 7, pp. 27-28/paras. 120-121 61 Appellant’s Record – Reasons for Judgment – Vol. I, Tab 1(B) at 45/11-35. See also Respondent’s Record – Report of Patricia Lehman – Tab 3(B) at pp. 83-86 62 Appellant’s Record – Reasons for Judgment – Vol. I, Tab 1(B) at 46/26-34 63 Appellant’s Record – Cst. Ross’s testimony – Vol. II, Tab 3(D) at 50/11-19 59

13 History of the Proceedings 49.

The Appellant was charged with three counts of impaired driving causing bodily harm,

three counts of dangerous driving causing bodily harm, and one count of operating a motor vehicle with an illegal amount of alcohol in his blood. 64 He alleged numerous Charter violations at his judge-alone trial. 65 He did not testify in the voir dire that was conducted. At its conclusion, the Trial Judge issued a 39-page reserved, written decision. 66 Trial Judge’s Voir Dire Ruling 50.

The Trial Judge found that the Appellant’s roadside statements to the first responders

were voluntary. 67 She found that his Charter rights were violated when: Cst. Baker detained him in the back of the police vehicle and did not advise him of his right to counsel, Cst. Maerz lawfully placed him under investigative detention but did not advise him of his right to counsel, Cst. Laurence sought to elicit statements from him after he was lawfully arrested but before he accessed counsel, and Cst. Ross waited at the roadside for approximately 30 minutes instead of driving to a location where he could access counsel. 68 51.

She found that other Charter breaches were not established, including the allegation at

issue in this appeal – that Cst. Ross lacked the requisite grounds to arrest the Appellant. Reasonable and Probable Grounds to Arrest 52.

The Trial Judge found that Cst. Ross had reasonable and probable grounds to arrest the

Appellant for dangerous driving. She rejected the argument that Cst. Ross only arrested the Appellant to seize his cell phone. She found that Cst. Ross arrested the Appellant based on his driving and to prevent him from interfering with evidence. 69

64

Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 1/para. 1 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at pp. 7-8/para. 20; Appellant’s Record – Charter Notice – Vol. II, Tab 4(A). See also Respondent’s Record – Voir Dire Submissions of Defence Counsel – Tab 2(A) at pp. 1-14 66 The voir dire evidence was applied to the trial proper and no further evidence was called. The Appellant was found guilty of all seven offences. Appellant’s Record – Reasons for Judgment – Vol. I, Tab 1(B) at 42/18-19, 45/41-46/1, 48/37-38, 52/29-30. Conditional stays were entered on the dangerous driving and “over 80” counts. 67 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 7/para. 19 68 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 33/paras. 149-150 69 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 21/para. 79 65

14 53.

The Trial Judge held that the evidence as a whole established that Cst. Ross had the

requisite grounds to arrest the Appellant and seize his phone incident to arrest. She reproduced Cst. Ross’s trial testimony wherein he identified his reasons for arrest. The Trial Judge identified the factors grounding his belief. 70 She acknowledged that one of the factors may have been inaccurate, but accepted that it was operating on Cst. Ross’s mind at the relevant time. She found that, on a totality of the evidence, Cst. Ross had sufficient information about the collision to support the requisite grounds to arrest. She then commented that the Appellant’s statement – that he thought he had time to make it – could also provide objective support. 71 Section 24(2) 54.

After reviewing the positions of counsel and this Court’s decision in R. v. Grant

(“Grant”), the Trial Judge excluded the statements made by the Appellant after he was detained but before he accessed counsel. She declined to exclude his “highly reliable” breath sample results. She found that the smell of the Appellant’s breath at the district office belonged in the category of observation evidence. She also found that there was a properly grounded ASD demand. She determined that a distinction could be drawn between what happened before and after the Appellant arrived at the district office. She concluded that the pre-detachment breaches were not such that they called for, or even supported, the exclusion of the breath results. 72 55.

The Trial Judge reviewed Grant’s first inquiry principles and made findings regarding the

seriousness of the Charter-infringing conduct in relation to Constables Baker, Maerz, and Ross. 73 She reviewed Grant’s second inquiry principles and assessed the impact of the breaches on the Appellant’s Charter-protected interests. 74 She reviewed Grant’s third inquiry principles, and found that the breath test results were reliable and important. In her view, the admission of the breath sample evidence would not bring the administration of justice into disrepute but would support the exclusion of any statements made before the Appellant could speak to a lawyer. 75

70

Appellant’s Record – Ruling – Vol. I, Tab 1(A) at pp. 21-23/paras. 84-87 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 23/para. 88 72 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at pp. 33-35/paras. 151-158 73 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at pp. 35-36/paras. 160-166 74 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at pp. 36-37/paras. 167-175 75 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 38/paras. 176-177 71

15 56.

The Trial Judge would have excluded any statements made prior to the Appellant’s

access to counsel, but none arose. She found that the breaches which occurred did not amount to any significant prejudice to the Appellant as he did not make any statements that would be excluded. She confirmed that society had a greater interest in adjudicating a case such as this on the merits. She concluded that the bodily evidence was not obtained in violation of the Appellant’s Charter rights and, even if it was, she would not have excluded the evidence. 76 Alberta Court of Appeal 57.

On appeal, the Crown conceded two additional breaches. First, when Cst. Laurence

screened the Appellant for alcohol by asking him two questions (his name and what happened) after the Appellant was arrested but before he was provided with an opportunity to contact counsel. Second, when Cst. Ross allowed the Appellant to speak to counsel before responding to the ASD demand, thereby rendering the demand unlawful because the sample was not collected “forthwith”. 77 O’Ferrall J.A. 58.

O’Ferrall J.A. agreed with the Trial Judge’s finding that the information known to Cst.

Ross established reasonable grounds to arrest the Appellant for dangerous driving. 78 He held that the breath test results should not be excluded. He found that the Charter-infringing conduct was not serious, the impact on the Appellant’s Charter-protected interests was minimal, and excluding the evidence would bring the administration of justice into disrepute. 79 59.

O’Ferrall J.A. agreed with the Trial Judge that the breaches at the collision scene had

little connection to the smell of alcohol on the Appellant’s breath at the district office, the ASD, and the breath sample results. 80 He found that the Trial Judge properly applied the Grant analysis and agreed with her findings. 81 He held that the two conceded breaches did not affect

76

Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 38/paras. 178-181 Appellant’s Record – Memorandum of Judgment (“MOJ”) – Vol. I, Tab 1(D) at p. 62/paras. 18-19, p. 73/para. 69 78 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 64/para. 26 79 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 56/para. 4, p. 66/para. 40 80 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 67/para. 42 81 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 67/para. 43, pp. 70-71/paras. 55-56 77

16 the analysis. 82 Balancing the Grant assessments, he agreed that it was not established that admitting the evidence would bring the administration of justice into disrepute. 83 Martin J.A., concurring 60.

Martin J.A. held that the Trial Judge would have reached the same conclusion on the s.

24(2) analysis even with the two “minor” breaches conceded by the Crown. He would have dismissed the appeal on this basis. 84 61.

Martin J.A. also added that he disagreed with the Appellant that there were no grounds to

detain or arrest him at the scene. He reviewed the evidence and found that his driving satisfied the actus reus of dangerous driving. 85 He found that the mens rea was satisfied by his statement that he thought he had time to make it, which constituted an admission that he saw the car and thought he could outrun it. This amounted to a marked departure from the standard of care that a reasonable person would have exercised in the circumstances, was prima facie dangerous driving, and would have warranted detention pending further investigation. 86 62.

Martin J.A. also commented that the Appellant’s conduct in the initial stages of the

investigation – denying alcohol consumption, putting gum in his mouth, and producing a fake blow – contributed to the delay in police being able to smell alcohol and administer the ASD. 87 He found that the attempts to mask alcohol consumption would have been proper considerations weighing against exclusion. He remained unpersuaded that an accused was entitled to Charter relief because his efforts to obstruct an investigation were unsuccessful. 88 Veldhuis J.A., dissenting 63.

Veldhuis J.A. held that the arrest lacked the subjective and objective grounds. 89 She

found that only one of the factors relied upon (the stop sign violation) was directly relevant, and that the others were neutral. She concluded that, because the stop sign information was 82

Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 70/para. 57 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 70/para. 58 84 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 71/para. 60 85 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 71/paras. 61-62 86 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at pp. 71-72/paras. 63-64 87 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 72/para. 65 88 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 72/paras. 66-67 89 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 73/para. 72 83

17 inaccurate, there were no grounds to support a subjective belief. 90 She found the Trial Judge also erred in forming an alternative, objective basis for Cst. Ross’s absent subjective grounds by impermissibly substituting a possible belief for an actual belief. 91 She would have excluded the evidence based on the unlawful arrest. She found that both the Charter-infringing conduct and the impact on the Charter-protected interests were serious and warranted exclusion. 92 She found these factors outweighed society’s interest in an adjudication on the merits. 93

90

Appellant’s Record – MOJ – Vol. I, Tab 1(D) at pp. 73-75/paras. 73-77 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 75/para. 78 92 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at pp. 75-77/paras. 79-88 93 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 77/paras. 89-90 91

18

PART II – ISSUES Question in Issue A

Whether the arresting officer had reasonable and probable grounds

to arrest the Appellant, including: a) whether the arresting officer had the necessary subjective belief; and b) if so, whether his subjective belief was objectively reasonable. Respondent’s Position with regard to Question in Issue A

The Trial Judge did not

err in finding that the arresting officer had the necessary subjective belief and that his belief was objectively reasonable. Question in Issue B

Whether the breath sample evidence ought to be excluded,

including: a) whether the evidence was obtained in violation of the Appellant’s Charter rights; and b) would the admission of the evidence bring the administration of justice into disrepute. Respondent’s Position with regard to Question in Issue B

Taking into account the

Trial Judge’s untainted findings and the minor Charter breaches conceded by the Crown at the Court of Appeal, the majority of the Court of Appeal did not err in refusing to exclude the Appellant’s breath sample evidence.

19

PART III – ARGUMENT Question in Issue A – Reasonable and Probable Grounds 64.

The Appellant submits that there are two issues to be determined: 1) whether the arresting

officer had the necessary subjective belief when he arrested the Appellant for dangerous driving causing injury; and 2) whether his belief was objectively reasonable. He alleges that both elements were absent. His argument is unsupported by the evidentiary record and contrary to the applicable legal principles. Applicable Principles 65.

Section 495(1)(a) of the Criminal Code authorizes a peace officer to arrest a person

without warrant where the officer, on reasonable grounds, believes that the person has committed an indictable offence. 94 An arrest will be lawful if the arresting officer subjectively believes that he or she has reasonable and probable grounds to make the arrest and the officer’s grounds are justifiable from an objective point of view (a reasonable person in the officer’s position must be able to conclude that the requisite grounds existed). 95 66.

Police are not required to establish more than reasonable and probable grounds to arrest.

The legal threshold is less than proof beyond a reasonable doubt, less than a prima facie case for conviction in relation to each element of the suspected offence, and less than proof on a balance of probabilities. 96 67.

The standard must be interpreted contextually, having regard to the circumstances in their

entirety including the timing involved, the events leading up to the arrest (both immediate and over time), and the dynamics at play. The nature of the power exercised and the context within

94

Criminal Code, R.S.C. 1985, c. C-46, s. 495(1)(a) [see pp. 46-47 of these materials] R. v. Storrey, [1990] 1 S.C.R. 241 at pp. 249-251 [Respondent’s Authorities (“RA”), Tab 35]. See also R. v. Juan, 2007 CarswellBC 1503 (C.A.) at para. 16 [RA, Tab 20]; R. v. Grotheim, 2001 CarswellSask 735 (C.A.) at paras. 30, 32 [RA, Tab 13] 96 R. v. Storrey, supra note 95 at pp. 250-251 [RA, Tab 35]; R. v. Stillman, [2009], S.C.R. 353 at para. 28 [RA, Tab 34]; R. v. Debot, [1989] 2 S.C.R. 1140 at p. 1166 [Appellant’s Authorities (“AA”), Tab 8]. See also R. v. Grotheim, supra note 95 at para. 42 [RA, Tab 13]; R. v. Jir, 2010 CarswellBC 2967 (C.A.) at para. 27 [RA, Tab 19]; R. v. Censoni, 2001 CarswellOnt 4590 (Sup. Ct. Just.) at para. 29 [RA, Tab 5] 95

20 which it is exercised must be considered. For example, the dynamics at play in an arrest will differ from those in a search warrant application. 97 68.

The reasonable and probable grounds standard is not met by the number of grounds

articulated. There is no minimum period of investigation or mandatory line of questioning. Instead of focussing on missing evidence, a trial judge should consider whether the information known or available to the officer at the time the requisite belief was formed reasonably supported the officer’s view. 98 The evidence must be viewed cumulatively. Individual facts considered in isolation may have little force. 99 It is an error to consider various indicia in isolation and then reject each on the basis that it is consistent with other explanations. 100 69.

The standard does not require an informed consideration of all of the information

available at the time of the arrest. It requires a consideration of all incriminating and exonerating information which the circumstances reasonably permit. 101 The fact that an officer turned out to be under a misapprehension is not determinative. The important fact is not whether the officer’s belief was accurate, but whether it was reasonable. The fact that the belief was drawn from hearsay, incomplete sources, or contained assumptions will not result in its rejection based on facts that emerge later. 102 70.

A police officer is entitled to rely on hearsay in forming the necessary grounds. 103 An

officer is entitled to draw inferences and make deductions based on experience, and the trial 97

R. v. Nguyen, 2010 CarswellAlta 828 (C.A.) at para. 18 [RA, Tab 28]; R. v. Golub, 1997 CarswellOnt 2448 (C.A.) at paras. 18-19 [RA, Tab 11] 98 R. v. Shinkewski, 2012 CarswellSask 406 (C.A.) at para. 21 [RA, Tab 32]; R. v. Hillgardener, 2010 CarswellAlta 415 (C.A.) at para. 22 [RA, Tab 17]; R. v. Jir, supra note 96 at para. 29 [RA, Tab 19]. In the context of breath demands, see R. v. Schofield, 2015 CarswellNS 32 (C.A.) at para. 35 [RA, Tab 31]; R. v. Bush, 2010 CarswellOnt 5897 (C.A.) at paras. 60, 70 [RA, Tab 4]; R. v. McClelland, 1995 CarswellAlta 176 (C.A.) at paras. 26-27 [RA, Tab 26] 99 R. v. Nolet, [2010] 1 S.C.R. 851 at para. 48 [RA, Tab 29]; R. v. Nguyen, supra note 97 at para. 18 [RA, Tab 28]; R. v. L. (M.A.), 2003 CarswellOnt 995 (C.A.) at paras. 6-7 [RA, Tab 21] 100 R. v. Acosta, 2014 CarswellBC 1730 (C.A.) at paras. 16-17 [RA, Tab 1]; R. v. MacCannell, 2014 CarswellBC 2354 (C.A.) at paras. 44-46 [RA, Tab 23]. In the context of breath demands, see R. v. Huddle, 1989 CarswellAlta 233 (C.A.) at paras. 8-9 [RA, Tab 18]; R. v. Schofield, supra note 98 at para. 34 [RA, Tab 31] 101 R. v. Shinkewski, supra note 98 at para. 16 [RA, Tab 32] 102 R. v. Herritt, 2015 CarswellNB 575 (C.A.) at para. 21 [RA, Tab 16]; R. v. Grotheim, supra note 95 at para. 42 [RA, Tab 13]. In the context of breath demands, see R. v. Bush, supra note 98 at para. 66 [RA, Tab 4]; R. v. Musurichan, 1990 CarswellAlta 579 (C.A.) at para. 10 [RA, Tab 27] 103 R. v. Collins, [1987] 1 S.C.R. 265 at p. 279 [RA, Tab 7]; R. v. Debot, supra note 96 at pp. 1167-1168 [AA, Tab 8]. In the context of breath demands, see R. v. Bush, supra note 98 at para. 61 [RA, Tab 4]; R. v. Schofield, supra note 98 at para. 33 [RA, Tab 31]; R. v. Censoni, supra note 96 at para. 57 [RA, Tab 5]

21 judge is entitled to take into consideration that experience and training in assessing whether the officer objectively had the necessary grounds. 104 An officer’s decision to delay an arrest will not undermine grounds that already existed. 105 And, the fact that an officer intended on continuing an investigation post-arrest will not mean that the arrest was made for an improper purpose. 106 71.

Whether facts constitute reasonable and probable grounds is a question of law. A trial

judge’s factual findings are entitled to deference, but his or her ultimate ruling is subject to review for correctness. 107 Application to Case at Bar 72.

A review of the Trial Judge’s analysis and the arresting officer’s evidence confirms that

the Trial Judge did not err in finding that Cst. Ross had reasonable and probable grounds to arrest the Appellant for dangerous driving causing injury. 73.

In his direct examination, Cst. Ross described his decision to arrest after he learned that

the Appellant had been communicating with a potential witness: Q What did you do as a result of that? A I felt that some of the evidence I was losing control of, that I’d rather talk to the lady without him talking to her first. So I -- I was in fear of some of the evidence being tampered with or losing some of the evidence, so I felt I needed to take Mr. Rowson into a more custody situation, because I wasn’t going to allow him to leave from the scene, and I didn’t want him to use the cell phone anymore. Q You said that you wanted to take “more custody.” Did you do that? A Yes, sir, I did. Q How so? A Well, I was thinking about exactly -- prior to, I was kind of standing around the scene and looking at the scene and what we actually had at the time. It was 9 o’clock at night. The 22X is a very busy highway just south of the City of Calgary. The speed 104

In the context of a breath demand, see R. v. Bush, supra note 98 at para. 61 [RA, Tab 4]; R. v. Schofield, supra note 98 at para. 33 [RA, Tab 31]. In the context of reasonable suspicion, see R. v. MacKenzie, [2013] 3 S.C.R. 250 at para. 62 [RA, Tab 24] 105 R. v. Latimer, [1997] 1 S.C.R. 217 at para. 27 [RA, Tab 22]. See also R. v. Backhouse, 2005 CarswellOnt 761 (C.A.) at para. 71 [RA, Tab 2] 106 R. v. Storrey, supra note 95 at pp. 253-255 [RA, Tab 35] 107 R. v. Shepherd, [2009] 2 S.C.R. 527 at para. 20 [AA, Tab 27]

22 limit is quite high there. A normal person would expect traffic to be on that highway at that time of the night. The information I was given was that the driver had failed to obey a traffic control sign, that being a stop sign at that location, and had crossed that intersection. And in my mind, I felt that would have been a dangerous act causing the collision, so I arrested him for dangerous driving. 108 Approximately two minutes later, Cst Ross advised his sergeant that: … I had arrested [the Appellant] for dangerous driving for the reason I mentioned earlier, that he’d been on the phone talking to this person, and that I’m not sure who he was talking to. … 109 74.

In her Ruling, the Trial Judge reviewed the circumstances of the arrest. She rejected the

argument that Cst. Ross only arrested the Appellant to seize his phone. She found that he arrested the Appellant because he did not want him interfering with witnesses and because he believed, based on the information he had been given, that the Appellant’s action of continuing into the intersection was a dangerous act which caused the collision. 110 75.

The Trial Judge reviewed the applicable jurisprudence and counsel positions. She found

that the evidence on a whole supported the fact that Cst. Ross had reasonable and probable grounds to arrest. She cited his testimony wherein he identified his reasons for arrest. 111 76.

The Trial Judge then identified the following factors as grounding Cst. Ross’s reasonable

and probable grounds to arrest: 1) he had been called to what was described as an injury collision and advised that the injuries were serious; 2) the roads were dry and it was a clear night; 3) he was advised that a black truck had gone through a stop sign on 24th Street and collided with a white car also in the ditch; 4) the location of the driver of the black truck was identified to him and he later identified that person as the Appellant; 5) it was 9:00 at night; 6) Highway 22X is a very busy roadway; 7) the speed limit was quite high in that area; and 8) a normal person would expect traffic to be on that highway at that time of night. 112

108

Appellant’s Record – Cst. Ross’s testimony – Vol. II, Tab 3(D) at 14/4-22 Appellant’s Record – Cst. Ross’s testimony – Vol. II, Tab 3(D) at 15/13-36 110 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 21/para. 79 111 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at pp. 21-22/paras. 82-85 112 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 22/para. 86 109

23 77.

The Trial Judge acknowledged that Cst. Ross learned of the potential stop sign infraction

from an officer he could not identify. She reproduced Cst. Maerz’s testimony confirming that he had provided this information to Cst. Ross. She accepted that although the information may have turned out to be inaccurate, it was nevertheless operating on the officers’ minds at the relevant time. She concluded that, on a totality of the evidence, Cst. Ross had sufficient information to support reasonable and probable grounds to arrest. She then commented that the Appellant’s statement that he thought he had time to make it could also provide objective support. 113 78.

The Trial Judge concluded that Cst. Ross was entitled to seize the cell phone and had

been contemplating the evidence he had for arrest before seizing it. She found that his actions in seizing the phone were appropriate given that the Appellant could have affected the administration of justice. She rejected the argument that Cst. Ross only seized the phone to collect evidence when the facts were clear that he did not do anything with the phone after seizing it. 114 The Subjective Element 79.

An examination of the Trial Judge’s analysis confirms that she accepted Cst. Ross’s

evidence and was satisfied that he had the necessary subjective belief. This finding was reasonable and available on the evidence. 80.

The Appellant does not expressly allege an unreasonable credibility finding. Instead, he

seeks to undermine the existence of Cst. Ross’s subjective belief based on the language used in articulating his grounds, his inability to identify the police source of the stop sign information, the fact that the stop sign information was inaccurate, and the absence of additional investigative steps. 81.

The Appellant’s arguments reflect a misapprehension of the subjective component

analysis. He fails to appreciate that the focus at this first stage of the analysis is quite narrow. The issue is whether the arresting officer personally (honestly/genuinely) believed that he or she had reasonable and probable grounds to arrest. Not surprisingly, the majority of the 113 114

Appellant’s Record – Ruling – Vol. I, Tab 1(A) at pp. 22-23/paras. 87-88 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 23/para. 89

24 jurisprudence in this area concerns the objective element. Findings that the subjective component was not established can generally be divided into two categories: 1) the arresting (or directing) officer acknowledges the absence of such grounds, or 2) the officer’s testimony is rejected as not credible. 115 82.

Neither of these two scenarios is at play in this case. Cst. Ross testified that he arrested

the Appellant based on the information that he had been given. He considered this information in the context of his observations and knowledge of the scene. He came to the conclusion that the Appellant’s act of proceeding into the intersection was dangerous. The Trial Judge accepted his evidence. 83.

The Appellant argues that Cst. Ross’s articulation of his grounds establish the lack of a

subjective belief. He notes that Cst. Ross testified that the Appellant’s failure to stop at the stop sign (at 9:00 p.m. on a road known to be busy with a high speed limit) was a dangerous act, not that he believed the Appellant had committed the offence of dangerous driving. His argument that specific words are required to satisfy the subjective component is without support. Significantly, Cst. Ross was never asked in cross-examination if he thought he had reasonable and probable grounds to arrest. 116 84.

The Appellant also argues that the lack of a subjective belief is established by Cst. Ross’s

inability to identify the officer who provided the stop sign information (or the source of that officer’s information) and his lack of information regarding the Appellant’s driving before the collision. He submits further investigative steps were required. His argument reflects a misapprehension of the applicable principles. 85.

As already noted, the issue at the first stage is whether Cst. Ross genuinely believed that

he had the requisite grounds to arrest. The existence of a genuinely held belief is not vitiated where the information relied upon is hearsay. Nor is it vitiated where the information relied upon later proves inaccurate, or where additional investigations could have resulted in further information and/or corroborated existing information. Some of these considerations could be 115

For the former, see R. v. Feeney, [1997] 2 S.C.R. 13 at paras. 27-29 [RA, Tab 9]; R. v. Frieburg, 2013 CarswellMan 250 (C.A.) at para. 23, 28 [RA, Tab 10]; R. v. Stevenson, 2014 CarswellOnt 17424 (C.A.) at paras. 5152, 56 [RA, Tab 33]. For the latter, see R. v. Turpin, 2012 CarswellSask 317 (C.A.) at paras. 3, 58-64 [RA, Tab 36] 116 See, for example, R. v. Hall, 1995 CarswellOnt 107 (C.A.) at paras. 41-42 [RA, Tab 14]

25 relevant to an officer’s credibility or in determining, at the second stage of the analysis, whether the genuine belief is objectively justifiable. They are not relevant at the subjective stage of the analysis where an officer’s evidence is accepted and that officer is aware of the applicable standard. 86.

The Appellant also relies upon the dissenting judgment in the Court of Appeal to support

his position that the subjective element was not established. Unfortunately, the flaws evident in the Appellant’s analysis are also apparent in the dissenting judgment. Without expressly stating that Cst. Ross did not genuinely believe that he had the necessary grounds to arrest, the dissenting justice held that the subjective component was absent. She reviewed each of the factors relied upon by Cst. Ross in isolation and found that all but one was neutral. She held that, because the one remaining factor was inaccurate, there were no grounds to form a subjective belief. 117 87.

The dissenting justice erred in using an objective analysis to vitiate a subjective belief.

This error was further compounded because the objective analysis itself was flawed. The dissenting justice did not consider the information relied upon cumulatively. She subjected each factor to a trial level of scrutiny and effectively expected Cst. Ross to establish a prima facie case on each element of the offence prior to arresting the Appellant. 88.

There are further errors evident in the dissent. The dissenting justice misapprehended the

relevance of the factors relied upon by Cst. Ross in forming his grounds for arrest. The factors, some of which are specifically enumerated in the dangerous driving section of the Criminal Code, provided context for the Appellant’s driving and provided evidence upon which inferences about the manner of driving could be drawn. 118 89.

For example, the Appellant did not leave a stop sign and enter a remote and rarely used

rural road. He did not leave a stop sign in the middle of the night and enter a city street governed by a 30 km/h speed limit. The Appellant left two stop signs and drove into a very busy, high speed highway at a time when one would expect traffic. He did so when there did not appear to

117

Appellant’s Record – MOJ – Vol. I, Tab 1(D) at pp. 74-75/para. 77 Criminal Code, R.S.C. 1985, c. C-46, s. 249(1)(a) [see p. 44 of these materials]. This section refers to the nature, condition, and use of the roadway as well as the amount of traffic that would or could reasonably be expected. 118

26 be anything obstructing or obscuring his view of oncoming traffic (it was a clear evening). And, his actions appeared to be deliberate (the roads were dry). 90.

The dissenting justice also erred in using information that later proved inaccurate to

vitiate Cst. Ross’s subjective belief. As recognized by the Trial Judge and confirmed by the jurisprudence, information that proves to be inaccurate will not nullify an officer’s subjective belief or its objective reasonableness. 119 In this case, it is debatable whether the information was even inaccurate. Pursuant to provincial legislation, drivers entering a highway governed by a stop sign have three obligations. They must bring their vehicle to a stop before entering the highway, they must not proceed until it is safe to do so, and they must yield to oncoming traffic. 120 By proceeding when he did, the Appellant did not comply with the last two requirements. 91.

A review of the Appellant’s submissions as a whole reveals a consistent, and prohibited,

theme. The Appellant seeks to impugn Cst. Ross’s credibility with arguments considered and rejected by the Trial Judge. He argues that Cst. Ross only arrested him to seize his cell phone. He suggests that the arrest was effectively a ruse to keep him captive so that Cst. Ross could gather evidence to confirm his hunch that impairment was involved. 92.

The Appellant made the same or similar submissions at trial to challenge Cst. Ross’s

credibility. They were rejected. The Trial Judge accepted Cst. Ross’s evidence. The Appellant has not established any errors in her analysis or findings. Her credibility findings are entitled to deference. 93.

The fact that Cst. Ross remained alive to the possibility of impairment throughout his

dealings with the Appellant does not establish mala fides. The fact that the first responders, whose attention was frequently divided, did not observe indicia of impairment in their comparatively brief dealings with the Appellant does not mean that Cst. Ross was legally required to close his mind to the possibility. Cst. Ross, unlike the first responders, had both the

119

Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 13/para. 43, p. 23/para. 88 Use of Highway and Rules of the Road Regulation — Alta. Reg. 304/2002 (Traffic Safety Act) Alta. Reg. 304/2002, ss. 37-38 [see p. 50 of these materials] 120

27 time and a reason to pay closer attention. He personally witnessed the Appellant’s attempts to obstruct alcohol screening measures. The Objective Element 94.

An examination of the Trial Judge’s analysis also confirms that she found that the

necessary objective support existed for Cst. Ross’s subjective belief. This finding was reasonable and available on the evidence. 95.

The Appellant alleges that the Trial Judge erred by relying on information not known to

Cst. Ross to provide objective support, by failing to appreciate that the information actually relied upon had not been independently verified, and by failing to appreciate that the requisite threshold was not met. His arguments reflect a misapprehension of both the Trial Judge’s reasons and the principles governing the objective component analysis. 96.

The Appellant first argues that the Trial Judge erred by using information not known to

Cst. Ross (the Appellant’s statement that he thought he had time to make it), or listed by him as a basis for the arrest (a serious injury collision and the roads were clear and dry), to provide objective support for his subjective belief. Both complaints are without foundation. 97.

A review of the Ruling confirms that the Trial Judge did not rely on the Appellant’s

statement to the first responders to provide objective support for Cst. Ross’s subjective belief. The Trial Judge identified the eight factors grounding Cst. Ross’s belief; these factors did not include the statement. She then found that, on a totality of the evidence, sufficient information was known to support reasonable and probable grounds. Only then did she refer to the statement, commenting that it too could have provided objective support. 121 98.

The dissent also found that the Trial Judge erred in her use of the Appellant’s statement.

The dissenting justice found that the Trial Judge did not appreciate the two step framework that governs the assessment of reasonable and probable grounds (first subjective, then objective) when she impermissibly substituted a belief that Cst. Ross could have held in place of the one that he actually held. 122 121 122

Appellant’s Record – Ruling – Vol. I, Tab 1(A) at pp. 21-23/paras. 84-88 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 75/para. 78

28 99.

The Trial Judge’s reasons confirm that she was fully aware of and applied the applicable

framework to her analysis. In the investigative detention portion of her Ruling (which engages the same framework at a lower threshold), the Trial Judge noted that “[r]easonable suspicion thus includes an inquiry into whether Cst. Maerz subjectively believed that a reasonable suspicion existed and this belief must be objectively reasonable.” She applied the correct framework. She found that Cst. Maerz “held a genuine belief” before confirming that “[i]n the totality of the circumstances, there was a constellation of objectively discernable facts which gave [him] reasonable cause to suspect”. 123 100.

The Appellant’s submission that the objective standard was not met because Cst. Ross

did not articulate two of the factors relied upon (a serious injury collision and dry roads) as reasons for the arrest is similarly without merit. The Appellant fails to appreciate that objective support arises from information known or available to the officer at the time of arrest. As confirmed in his testimony, Cst. Ross was aware of both pieces of information at the time he arrested the Appellant. Before attending the scene, he heard on the police radio that a collision had occurred with serious injuries. 124 And, he described the roads as dry and the night as clear upon his arrival at the scene. 125 The Trial Judge did not err in relying upon this information as objective support for his subjective belief. 101.

The Appellant also argues that the information relied upon was not sufficiently reliable or

credible to provide objective support because Cst. Ross could not identify the officer who provided the stop sign information, that source did not testify, and that source’s source was unknown. He effectively argues that any hearsay information must be personally investigated and corroborated before it can be relied upon for an arrest. 102.

The Appellant’s argument is based on a misapprehension of the applicable legal

principles. An officer is entitled to rely upon hearsay in forming the requisite grounds for arrest. In this case, there was no reason for Cst. Ross to doubt the credibility or reliability of the stop sign information. It was received from a fellow officer at the scene shortly after the collision. There is no suggestion that it originated as a “tip” from an anonymous source or a confidential 123

Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 12/para. 40, pp. 13-14/paras. 43-45 Appellant’s Record – Cst. Ross’s testimony – Vol. II, Tab 3(D) at 2/37-3/10 125 Appellant’s Record – Cst. Ross’s testimony – Vol. II, Tab 3(D) at 5/26-30 124

29 informant and portions of it were confirmed by the scene itself (such as the vehicles involved) and/or witnesses at the scene (such as the truck’s driver). 103.

If the Appellant’s argument was taken to its logical conclusion, an officer would be

unable to rely on a dispatcher’s information before arresting a suspect without first identifying and interviewing both the dispatcher and the dispatcher’s source of information. In this case, the Trial Judge accepted that Cst. Ross received the stop sign information from a fellow officer. She noted that Cst. Maerz received similar information and that he testified that he gave this information to Cst. Ross. 104.

The Appellant also argues that the facts known to Cst. Ross did not satisfy the reasonable

and probable grounds threshold. He submits that the information known – an accident at 9:00 p.m. on a high speed road known to be busy – in conjunction with the conclusory stop sign information did not meet the requisite threshold because there was no basis to conclude that the Appellant’s driving constituted a marked departure. He notes that the Trial Judge required the additional component of impairment to satisfy the mens rea and convict the Appellant. 105.

The Appellant misapprehends the applicable threshold. As noted by the Trial Judge, the

reasonable and probable grounds threshold is higher than the reasonable suspicion threshold. 126 However, prior to arrest, an officer is not required to establish a prima facie case for each and every element of an offence, let alone proof beyond a reasonable doubt. The stop sign information, in the context of the surrounding circumstances, satisfied the applicable threshold. The Appellant’s driving was objectively dangerous. And, there was evidence upon which an inference could be drawn that this driving represented a marked departure from the standard of care that a reasonable person would have observed in the circumstances.

Question in Issue B – Breath Sample Evidence 106.

The Appellant submits that this Court must conduct a fresh s. 24(2) analysis on the basis

of the additional s. 9 Charter breach (the unlawful arrest) 127 and/or the two breaches conceded by the Crown in the Court of Appeal. He argues that either analysis demands the exclusion of the evidence. 126 127

Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 12/paras. 38-39 Constitution Act, 1982, R.S.C. 1985, App. II, No. 44, Sched. B, Pt. I, s. 9 [p. 47 of these materials]

30 107.

As already noted, it is the Respondent’s position that Cst. Ross had reasonable and

probable grounds to arrest the Appellant for the dangerous driving offence. As a result, the Respondent’s submissions on the s. 24(2) issue will focus on the two conceded breaches. The Respondent submits that the Appellant has failed to establish that the breath test evidence ought to have been excluded based on these breaches or that the majority of the Court of Appeal erred in refusing to do so. Applicable Principles 108.

Section 24(2) provides that evidence obtained in violation of Charter rights will be

excluded if its admission, having regard to all of the circumstances, would bring the administration of justice into disrepute. 128 In making this determination, a trial judge must assess and balance the effect admission would have on society’s confidence in the justice system having regard to the seriousness of the conduct, the impact on the Charter-protected interests, and society’s interest in an adjudication of a case on its merits. 129 109.

The first inquiry requires an evaluation of whether admission would bring the

administration of justice into disrepute by sending a message to the public that the courts effectively condone state deviation from the rule of law by not disassociating themselves from the fruits of the conduct. The more severe or deliberate the state conduct leading to the violation, the greater the need for courts to dissociate themselves by excluding the evidence linked to that conduct. The concern of this inquiry is preserving public confidence in the rule of law and its processes, not punishing the police or deterring Charter breaches. 130 The seriousness of the state conduct will vary from inadvertent or minor violations at one end to wilful or reckless disregard of Charter rights at the other. The former may minimally undermine public confidence, while the latter will inevitably risk bringing the administration of justice into disrepute. 131 110.

Extenuating circumstances, such as the need to prevent the disappearance of evidence,

may attenuate the seriousness of the conduct. Good faith will also reduce a court’s need to disassociate itself from police conduct, However, ignorance of Charter standards must not be 128

Constitution Act, 1982, R.S.C. 1985, App. II, No. 44, Sched. B, Pt. I, s. 24(2) [see p. 48 of these materials] R. v. Grant, [2009] 2 S.C.R. 353 at para. 71 [AA, Tab 11] 130 Ibid. at paras. 72-73 [AA, Tab 11] 131 Ibid. at para. 74 [AA, Tab 11] 129

31 rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. Deliberate police conduct in violation of established Charter standards and/or conduct that forms part of a pattern of abuse tends to support exclusion. 132 111.

The second inquiry requires an evaluation of the extent to which the breach actually

undermined the interests protected by the right infringed. The impact can range from fleeting and technical to profoundly intrusive. The more serious the impact, the greater the risk that admitting the evidence will signal that Charter rights are of little avail and bring the administration of justice into disrepute. To determine the seriousness of the infringement, the degree to which the violation impacted the interests engaged by the infringed right must be examined. 133 112.

The third inquiry asks whether the truth-seeking function of the criminal trial process

would be better served by admission or exclusion. The reliability of evidence is an important factor. If a breach undermines reliability, exclusion may be warranted. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the trial and render the trial unfair from the public perspective. This would bring the administration of justice into disrepute. The importance of the evidence to the prosecution’s case and the seriousness of the alleged offence are also considerations. 134 113.

After these three avenues of inquiry are canvased, a determination must be made

whether, on balance, admitting the evidence would bring the administration of justice into disrepute. No overarching rule governs how the balance is to be struck and mathematical precision is not possible. 135 114.

A flexible approach will govern the admissibility of bodily evidence. Admission of

evidence obtained by deliberate and egregious police conduct that disregards the rights of an accused will undermine respect for the administration of justice, while good faith breaches may have little adverse effect. The greater the intrusion on an accused’s interests (privacy, bodily integrity, and human dignity), the more important it is that evidence be excluded. The public 132

Ibid. at para. 75 [AA, Tab 11] Ibid. at paras. 76-77 [AA, Tab 11] 134 Ibid. at paras. 79-84 [AA, Tab 11] 135 R. v. Grant, [2009] 2 S.C.R. 353 at paras. 85-86 [RA, Tab 12] 133

32 interest in having a case adjudicated on its merits will usually favour admission given its reliability and relevance. 136 Bodily evidence will generally be excluded where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused’s interests is high. Conversely, reliable evidence may be admitted where the violation is less egregious and the intrusion less severe. This will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. 137 115.

Where the proper factors have been considered, a trial judge’s ultimate determination is

entitled to considerable deference. 138 A trial judge’s findings of fact must be respected unless they are tainted by clear and determinative error. 139 A fresh analysis is necessary and appropriate where relevant factors have been overlooked or disregarded. 140 In a fresh analysis, all of the trial judge’s findings not tainted by error must be accepted. 141 An appellate court is not entitled to disregard findings not tainted by legal errors and embark on its own assessment of the seriousness of the breach and its impact. 142 On s. 24(2) issues, the trial judge, having heard the evidence, is better placed to weigh the credibility of witnesses and gauge the effect of testimony. 143 Application to Case at Bar 116.

Following a comprehensive s. 24(2) analysis, the Trial Judge declined to exclude the

breath sample evidence. The majority of the Court of Appeal agreed that this evidence should not be excluded. They found that the Trial Judge would have reached the same result even with the two conceded breaches. The dissenting justice did not disagree. Her decision to exclude the evidence was inextricably linked to her unlawful arrest finding. 144 Contrary to the governing jurisprudence, the Appellant now urges this Court to conduct a “fresh” s. 24(2) analysis which effectively ignores the Trial Judge’s untainted findings.

136

Ibid. at paras. 107-110 [RA, Tab 12] Ibid. at para. 111 [RA, Tab 12] 138 Ibid. at para. 86 [RA, Tab 12] 139 R. v. Côté, [2011] 3 S.C.R. 215 at paras. 51-52 [RA, Tab 8] 140 R. v. Cole, [2012] 3 S.C.R. 34 at para. 82 [RA, Tab 6] 141 R. v. Vu, [2013] 3 S.C.R. 657 at para. 67 [AA, Tab 32] 142 R. v. MacMillan, 2013 CarswellOnt 1864 (C.A.) at paras. 43-44 [RA, Tab 25] 143 R. v. Buhay, [2003] 1 S.C.R. 361 at paras. 46-47 [RA, Tab 3]. See also R. v. Côté, supra note 139 at para. 52 [RA, Tab 8] 144 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 73/paras. 69-70, p. 77/para. 90 137

33 Seriousness of the Charter-Infringing State Conduct 117.

The Appellant submits that the police demonstrated a blatant disregard for his Charter

rights throughout their dealings with him and were operating in the absence of good faith from the outset. His position is contrary to the Trial Judge’s untainted findings and the applicable legal principles. 118.

The Appellant cites his placement in the back of the police vehicle by Cst. Baker to

establish the lack of good faith from the outset. His submission is contrary to the Trial Judge’s finding that Cst. Baker was acting in good faith because her intention was to put the Appellant in a safe and secure location to obtain a statement and to keep him out of the way for the incoming air ambulance. 145 The Trial Judge’s finding was reasonable, available on the evidence, and unconnected to the conceded breaches that occurred later in time and did not involve Cst. Baker. 119.

The Appellant refers to this Court’s decision in R. v. Aucoin to establish a lack of good

faith on Cst. Baker’s part. He notes this Court’s comment that it will be the rare case in which it will be reasonably necessary to secure a motorist in the rear of a police cruiser. Unfortunately, he neglects to include the qualifier – “in the context of a straightforward motor vehicle infraction” – located at the beginning of the passage. 146 120.

The case at bar did not involve a straightforward motor vehicle infraction. Significantly,

neither the Appellant nor the dissenting justice identify where exactly the police should have placed the Appellant. Contrary to the Appellant’s submissions, he was not free to go. He had duties at the scene arising from the provincial legislation. 147 His wrecked vehicle was not an option and neither was remaining outside given the safety concerns. The police vehicle was the only logical location. The Appellant was not handcuffed when he was placed inside and there was no evidence that he was searched. 148 He maintained possession of his phone and felt free to use it on more than one occasion. O’Ferrall J.A.’s conclusion that the Trial Judge would not have erred in finding the absence of a detention is persuasive: 145 146 147

Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 35/para. 162 R. v. Aucoin, [2012] 3 S.C.R. 408 at para. 43 [AA, Tab 1]

See Traffic Safety Act, R.S.A. 2000, c. T-6, ss. 69(1) and 71(1) [see p. 49 of these materials] Appellant’s Record – Cst. Maerz’s testimony – Vol. I, Tab 3(C) at 170/23-30; Appellant’s Record – Cst. Ross’s testimony – Vol. II, Tab 3(D) at 7/27-31; Appellant’s Record – Cst. Baker’s preliminary hearing testimony – Vol. II, Tab 4(B) at 144/14-19 148

34 At that point the police were investigating a serious accident. The police needed to assist those attending upon the injuries of the victims. They also needed to control the accident scene which was on a very busy highway. The appellant was wandering around the scene of the accident. For his own safety and comfort he needed to be in a vehicle. It was the middle of winter. His own vehicle was a wreck. In other words, there was a legitimate non-detention reason to have the appellant placed in the vehicle. And, as the trial judge pointed out, the appellant needed to be in a vehicle in order to prepare his written report of the accident. … 149 121.

In arguing that the police lacked good faith from the outset, the Appellant also omits the

Trial Judge’s finding that Cst. Maerz was acting in good faith when, as a result of the chaotic scene, he lawfully placed the Appellant under investigative detention but forgot to advise him of his right to counsel. 150 This finding was also reasonable, available on the evidence, and untainted by the conceded breaches that occurred subsequent in time. 122.

The Appellant’s submission that the police were not acting in good faith from the outset

also finds no support in the dissent. The dissenting justice agreed with the Trial Judge that the initial violations could be understood as good faith breaches. The dissenting justice’s attention was focussed on the conduct of Cst. Ross, whom she found unlawfully arrested the Appellant. 151 123.

The Trial Judge found that Cst. Ross did not show a blatant disregard for the Appellant’s

Charter rights. She confirmed, however, that negligence and wilful blindness could not be equated with good faith and situated his conduct on the fault spectrum. She found that his decision to seek advice on handling novel events demonstrated meaningful steps to comply with the Charter when applying ambiguous legal standards. She noted and agreed with his acknowledgment that he should not have let Cst. Laurence speak to the Appellant at the collision scene before the Appellant accessed counsel. She accepted that his concerns regarding the Appellant’s privacy at the scene (in relation to accessing counsel) were in good faith, but found that he did not understand the Appellant’s pressing need to speak to counsel by remaining at the

149

Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 69/para. 53 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 35/para. 163 151 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 76/paras. 83-85 150

35 scene for so long. 152 She confirmed that he did not mistreat the Appellant and, on some matters, did more than was expected of him. 153 124.

The issue to be determined is whether the two conceded breaches tainted the Trial

Judge’s findings and/or would have impacted her placement of the police conduct on the fault spectrum. For the reasons that follow, they would not. 125.

The first conceded breach involved alcohol screening. After he arrested the Appellant,

Cst. Ross asked Cst. Laurence to see if he could smell alcohol on the Appellant. Cst. Ross was concerned that his own sense of smell may not have been working. Cst. Laurence asked the Appellant two questions – his name and what happened. 154 The Trial Judge concluded that the alcohol screening was not improper, but that Cst. Laurence’s questions violated s. 10(b) of the Charter. 155 126.

The fact that Cst. Laurence inhaled, and smelled nothing, while asking the two questions

the Trial Judge already took into account in finding a breach does not taint the Trial Judge’s findings and would not have altered her placement of the police conduct on the fault spectrum. 127.

Nor would the second conceded breach. After he smelled alcohol on the Appellant’s

breath at the district office, Cst. Ross allowed the Appellant to speak to counsel before responding to the ASD demand. The Trial Judge found there was no Charter breach. She found that the delay in collecting the sample was reasonable given the circumstances; the Appellant had been arrested for dangerous driving but had not yet been provided the opportunity to access counsel. The Trial Judge found that it was “appropriate” that the Appellant be given an opportunity to speak with counsel before being presented with the ASD and that the delay was reasonably necessary to enable Cst. Ross to “properly discharge his duty”. 156 128.

The Trial Judge recognized that Cst. Ross was in a catch 22 situation. The Appellant had

been arrested, informed of his right to counsel, and asserted that right. While reading the 152

Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 36/para. 165 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 36/para. 166 154 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 23/para. 91 155 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 23/para. 92, p. 24/para. 94, p. 33/para. 149, Constitution Act, 1982, R.S.C. 1985, App. II, No. 44, Sched. B, Pt. I, s. 10(b) [see pp. 47-48 of these materials] 156 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 31/para. 138 153

36 caution, Cst. Ross smelled alcohol emanating from the Appellant’s breath. He had two choices – further delay the implementation of the right to counsel or delay administering the ASD. He sought advice and decided to give the Appellant’s Charter rights priority. This is not the type of police conduct this Court needs to disassociate itself from. Impact on the Appellant’s Charter-Protected Interests 129.

The Appellant submits that the breaches were profoundly intrusive and demand

exclusion. His position is contrary to the Trial Judge’s untainted findings and the applicable legal principles. 130.

In her Ruling, the Trial Judge focussed on whether the established violations seriously

compromised the Appellant’s interests or were merely transient or trivial in impact. 157 She found that: there is a reduced level of privacy in a car following a motor vehicle accident given the regulatory scheme; 158 breath samples are minimally intrusive and favour admission; 159 and intrusions will be at the lower end of the scale when there is little or no causal connection between the protected interest and the obtaining of the evidence. 160 131.

The Trial Judge determined that there were two relevant time frames – before and after

Cst. Ross smelled alcohol on the Appellant’s breath at the district office. She found that the violations in the latter period were unrelated to anything the Appellant said to the officers before he knew of his right to counsel or spoke to counsel. She found that the discoverability of the alcohol smell would also place the impact of the breaches at the lower end of the scale. 161 The majority of the Court of Appeal agreed. 162 132.

The two conceded breaches do not taint the Trial Judge’s findings and would not have

affected her analysis. The alcohol screening measures were brief, did not result in any incriminating evidence, and were unrelated to the smell of alcohol detected at the district office. Further, Cst. Ross’s decision to allow the Appellant to speak to counsel before responding to the ASD demand was done for the Appellant’s benefit. 157

Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 36/para. 169 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at pp. 36-37/paras. 169-170 159 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 37/paras. 171-172 160 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 37/para. 173 161 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 37/paras. 174-175 162 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at pp. 69-70/para. 55 158

37 133.

The majority of the Court of Appeal confirmed that the conceded breaches did not impact

the Appellant’s interests and would not have altered the Trial Judge’s result. 163 The Appellant has demonstrated no error in the analysis of the Trial Judge and/or the majority of the Court of Appeal. Society’s Interest in an Adjudication on the Merits 134.

The Appellant appears to submit that the third line of inquiry also warrants exclusion

despite the reliability of the evidence. His position is contrary to the Trial Judge’s untainted findings and the applicable legal principles. 135.

The Trial Judge found that the reliability of the breath sample evidence was not affected

by the Charter violations, that the evidence was important, and that the offences involved were serious. 164 The majority of the Court of Appeal agreed. 165 The conceded breaches do not taint the Trial Judge’s findings and would not have altered the result reached. The brief screening measures at the collision scene and the delay in administering the ASD did not impact the reliability of the evidence, the importance of that evidence to the Crown’s case, or the seriousness of the offences. The majority of the Court of Appeal agreed. 166 136.

The Trial Judge held that admission of the breath test results would not bring the

administration of justice into disrepute, but would have supported the exclusion of any statements made by the Appellant before he spoke to counsel. She found that the violations did not amount to any significant prejudice to the Appellant and that society had a greater interest in adjudicating this type of case on the merits. She further found that the bodily evidence was not obtained in violation of the Appellant’s Charter rights. She confirmed that she would have admitted the bodily evidence even if it had. 167 The Court of Appeal agreed. 168 137.

Again, the conceded breaches would not have impacted the Trial Judge’s analysis and

ultimate conclusion. Neither the screening measures at the collision scene nor allowing the

163

Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 62/para. 18, p. 71/para. 60 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 38/para. 177 165 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 70/para. 56 166 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 70/para. 57 167 Appellant’s Record – Ruling – Vol. I, Tab 1(A) at p. 38/paras. 177-181 168 Appellant’s Record – MOJ – Vol. I, Tab 1(D) at p. 70/para. 58 164

38 Appellant to contact his counsel before responding to the ASD demand resulted in any significant prejudice to him. And, as already noted, the latter was done for his benefit. The Alleged Unlawful Arrest 138.

The Respondent’s preceding s. 24(2) analysis is restricted to the two conceded breaches.

The Respondent does not concede that an unlawful arrest finding would have automatically resulted in exclusion of the evidence. The seriousness of any breach and its impact on an accused’s Charter-protected interests must be assessed. In the context of an unlawful arrest, an arresting officer’s subjective belief and the existence of objective grounds (evidenced by a lawful detention) are important and relevant considerations. 169 So too is the minimally intrusive nature of evidence, its inherent reliability, and its importance to the Crown’s case. 139.

The Appellant, relying on the dissenting justice, argues that Cst. Ross had a single-

minded focus to uncover evidence of impairment and effectively used the arrest as a ruse to confirm his hunch. This characterization of Cst. Ross’s conduct was not accepted by the Trial Judge and is contrary to her untainted findings of fact. The Appellant refers to this Court’s decision in R. v. Harrison, failing to appreciate the significant distinctions between the two cases. 170 140.

In Harrison, the police acknowledged that they pulled over the accused’s vehicle

knowing that they had no grounds to do so. The trial judge found that the officer’s intention throughout was to take whatever steps necessary to determine if his suspicions were correct notwithstanding the lack of any legal basis. He further found that the officer’s actions were brazen and flagrant and that the explanations he offered in his testimony were contrived and defied credibility. He deemed the violations “extremely serious”. 171 141.

In the case at bar, the Trial Judge found that the Appellant was lawfully detained when

Cst. Ross arrested him. She accepted that Cst. Ross believed that he had grounds to arrest the Appellant and that those grounds were reasonable. She made no adverse findings of credibility. When reviewing his testimony regarding events at the district office (in relation to smelling 169

See, for example, R. v. Stevenson, supra note 115 at para. 57 [RA, Tab 31] R. v. Harrison, [2009] 2 S.C.R. 494 [AA, Tab 13] 171 Ibid. at paras. 23, 26-27 [AA, Tab 13], R. v. Harrison, [2009] 2 S.C.R. 494 at para. 12 [RA, Tab 15] 170

39 alcohol on the Appellant’s breath), she noted that “[i]n terms of credibility, I accept [his] evidence”; “these failings do not attack the core of his credibility”; “he appeared forthright and candid”; “[he] was honest and forthright”; and “he was being honest”. 172

The Dangerous Driving Counts 142.

The Respondent submits that, if it is determined that the breath test evidence ought to

have been excluded, this Court must still consider whether a new trial should be ordered on the dangerous driving counts. The Respondent acknowledges that the Trial Judge would have acquitted without this evidence and that the Crown adopted a contrary position at the Court of Appeal. The question of law, however, is whether there is any evidence upon which a properly instructed trier of fact could have convicted. 173 143.

In R. v. Roy, this Court accepted that the driving in question (pulling into the path of

oncoming traffic) was objectively dangerous and satisfied the actus reus (driving in a manner dangerous to the public, having regard to the nature, condition, and use of the place at which the vehicle was being operated and the amount of traffic that was or might reasonably have been expected at that place). This Court found there was no evidence (such as a driving pattern) upon which an inference could be drawn to satisfy the mens rea (the degree of care exercised by the driver was a marked departure from the standard of care that a reasonable person would observe in the driver’s circumstances). 174 This Court confirmed that such evidence would not be required if there was proof of the subjective mens rea (deliberately dangerous driving); specifically, that an accused actually foresaw the risk and decided to take it. 175 144.

In the case at bar, there was evidence satisfying both elements. The Trial Judge found

that driving into the intersection in the circumstances was objectively dangerous. And, as noted by Martin J.A. in the Court of Appeal, the Appellant’s statement that he thought he had time to

172

Appellant’s Record – Ruling – Vol. I, Tab 1(A) at pp. 28-29/paras. 124-125 See R. v. Roy, [2012] 2 S.C.R. 60 at para. 53 [RA, Tab 30] 174 Ibid. at paras. 33-34, 36, 54 [RA, Tab 30] 175 Ibid. at paras. 38, 51 [RA, Tab 30]. The Trial Judge found that the driving was objectively dangerous and that the Appellant’s statement was subject to competing interpretations. Appellant’s Record – Reasons for Judgment – Vol. I, Tab 1(B) at 49/29-52/30 173

40 make it provided evidence of the subjective mens rea. 176 The Appellant’s statement preceded any Charter breaches.

Conclusion 145.

The Trial Judge did not err in finding that reasonable and probable grounds existed for

the Appellant’s arrest. Nor did she err in finding that the breath sample evidence should not be excluded based on the Charter breaches at the collision scene. Those breaches did not yield any incriminating evidence and were unrelated to the detection of alcohol on the Appellant’s breath at the district office. It was the smell of alcohol that led to the breath test results. Given the Trial Judge’s untainted findings, the Court of Appeal did not err in determining that the two minor breaches conceded by the Crown did not warrant exclusion of the highly reliable and minimally intrusive bodily evidence.

PART IV – COSTS 146.

The Respondent makes no submissions regarding costs.

PART V – ORDER SOUGHT 147.

The Respondent asks that the appeal be dismissed. ALL OF WHICH IS RESPECTFULLY SUBMITTED. DATED at Calgary, Alberta, this 27th day of June, 2016.

CHRISTINE RIDEOUT COUNSEL FOR THE RESPONDENT CER/clk 176

Appellant’s Record – MOJ – Vol. I, Tab 1(D) at pp. 71-72/paras. 63-64

41

PART VI - TABLE OF AUTHORITIES TAB RESPONDENT’S AUTHORITIES

Cited at Paragraph No.

1

R. v. Acosta, 2014 BCCA 218, 2014 CarswellBC 1730 (C.A.) at paras. 16-17

68

2

R. v. Backhouse, 2005 CarswellOnt 761 (C.A.) at para. 71

70

3

R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631 at paras. 46-47

115

4

R. v. Bush, 2010 ONCA 554, 2010 CarswellOnt 5897 (C.A.) at paras. 60-61, 66, 70

68-70

5

R. v. Censoni, 2001 CarswellOnt 4590 (Sup. Ct. Just.) at paras. 29, 57

66, 70

6

R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34 at para. 82

115

7

R. v. Collins, [1987] 1 S.C.R. 265 at p. 279

70

8

R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215 at paras. 51-52

115

9

R. v. Feeney, [1997] 2 S.C.R. 13 at paras. 27-29

81

10

R. v. Frieburg, 2013 MBCA 40, 2013 CarswellMan 250 (C.A.) at paras. 23, 28 – leave to appeal refused by SCC 2013 CarswellMan 456

81

11

R. v. Golub, 1997 CarswellOnt 2448 (C.A.) at paras. 18-19 – leave to appeal refused by SCC [1998] 1 S.C.R. ix (note)

67

12

R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paras. 85-86, 107-111

13

R. v. Grotheim, 2001 SKCA 116, 2001 CarswellSask 735 (C.A.) at paras. 30, 32, 34, 42 – leave to appeal refused by SCC 2002 CarswellSask 337 (S.C.C.)

14

R. v. Hall, 1995 CarswellOnt 107 (C.A.) at paras. 41-42

83

15

R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at para. 12

140

16

R. v. Herritt, 2015 NBCA 33, 2015 CarswellNB 575 (C.A.) at para. 21

69

54-55, 59, 113-115

65-66, 69

42

TAB RESPONDENT’S AUTHORITIES

Cited at Paragraph No.

17

R. v. Hillgardener, 2010 ABCA 80, 2010 CarswellAlta 415 (C.A.) at para. 22

68

18

R. v. Huddle, 1989 ABCA 318, 1989 CarswellAlta 233 (C.A.) at paras. 8-9

68

19

R. v. Jir, 2010 BCCA 497, 2010 CarswellBC 2967 (C.A.) at paras. 27, 29

66-68

20

R. v. Juan, 2007 BCCA 351, 2007 CarswellBC 1503 (C.A.) at para. 16

65

21

R. v. L. (M.A.), 2003 CarswellOnt 995 (C.A.) at paras. 6-7

68

22

R. v. Latimer, [1997] 1 S.C.R. 217 at para. 27

70

23

R. v. MacCannell, 2014 BCCA 254, 2014 CarswellBC 2354 (C.A.) at paras. 44-46

68

24

R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250 at para. 62

70

25

R. v. MacMillian, 2013 ONCA 109, 2013 CarswellOnt 1864 (C.A.) at paras. 43-44

115

26

R. v. McClelland, 1995 ABCA 199, 1995 CarswellAlta 176 (C.A.) at paras. 26-27

68

27

R. v. Musurichan, 1990 CarswellAlta 579 (C.A.) at para. 10

69

28

R. v. Nguyen, 2010 ABCA 146, 2010 CarswellAlta 828 (C.A.) at para. 18

29

R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851 at para. 48

30

R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60 at para. 53 or paras. 33-34, 36, 38, 51, 53-54

31

R. v. Schofield, 2015 NSCA 5, 2015 CarswellNS 32 (C.A.) at paras. 33-35

68, 70

32

R. v. Shinkewski, 2012 SKCA 63, 2012 CarswellSask 406 (C.A.) at paras. 16, 21

68-69

67-68 68 142-143

43

TAB RESPONDENT’S AUTHORITIES

Cited at Paragraph No.

33

R. v. Stevenson, 2014 ONCA 842, 2014 CarswellOnt 17424 (C.A.) at paras. 51-52, 56-57 – leave to appeal refused by SCC 2015 CarswellOnt 7436

81

34

R. v. Stillman, [1997] 1 S.C.R. 607 at para. 28

66

35

R. v. Storrey, [1990] 1 S.C.R. 241 at pp. 249-251, 253-255

36

R. v. Turpin, 2012 SKCA 50, 2012 CarswellSask 317 (C.A.) at paras. 3, 58-64

TAB APPELLANT’S AUTHORITIES – Reproduced by Appellant

65-66, 70 81

Cited at Paragraph No.

1

R. v. Aucoin, [2012] 3 S.C.R. 408

119

8

R. v. Debot, [1989] 2 S.C.R. 1140

66, 70

11

R. v. Grant, [2009] 2 S.C.R. 353

54-55, 59, 108-112

13

R. v. Harrison, [2009] 2 S.C.R. 494

139-140

27

R. v. Shepherd, [2009] 2 S.C.R. 527

70

32

R. v. Vu, [2013] 3 S.C.R. 657 at para. 67

115

44

PART VII – LEGISLATION AT ISSUE Criminal Code 249(1) Dangerous operation of motor vehicles, vessels and aircraft Every one commits an offence who operates (a)

a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;

(b)

a vessel or any water skis, surf-board, water sled or other towed object on or over any of the internal waters of Canada or the territorial sea of Canada, in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of those waters or sea and the use that at the time is or might reasonably be expected to be made of those waters or sea;

(c)

an aircraft in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of that aircraft or the place or air space in or through which the aircraft is operated; or

(d)

railway equipment in a manner that is dangerous to the public, having regard to all the circumstances, including the nature and condition of the equipment or the place in or through which the equipment is operated.

Criminal Code R.S.C. 1985, c. C-46, s. 249

249(1) Conduite dangereuse Commet une infraction quiconque conduit, selon le cas : a)

un véhicule à moteur d'une façon dangereuse pour le public, eu égard aux circonstances, y compris la nature et l'état du lieu, l'utilisation qui en est faite ainsi que l'intensité de la circulation à ce moment ou raisonnablement prévisible dans ce lieu;

b)

un bateau ou des skis nautiques, une planche de surf, un aquaplane ou autre objet remorqué sur les eaux intérieures ou la mer territoriale du Canada ou au-dessus de ces eaux ou de cette mer d'une manière dangereuse pour le public, eu égard aux circonstances, y compris la nature et l'état de ces eaux ou de cette mer et l'usage qui, au moment considéré, en est ou pourrait raisonnablement en être fait;

c)

un aéronef d'une façon dangereuse pour le public, eu égard aux circonstances, y compris la nature et l'état de l'aéronef, ou l'endroit ou l'espace dans lequel il est conduit;

d)

du matériel ferroviaire d'une façon dangereuse pour le public, eu égard aux circonstances, y compris la nature et l'état du matériel ou l'endroit dans lequel il est conduit

45 Code criminel L.R.C. (1985), ch. C-46, s. 249 254(2) Testing for presence of alcohol or a drug If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol: (a)

to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

(b)

to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

Criminal Code R.S.C. 1985, c. C-46, s. 254

254(2) Contrôle pour vérifier la présence d'alcool ou de drogue L'agent de la paix qui a des motifs raisonnables de soupçonner qu'une personne a dans son organisme de l'alcool ou de la drogue et que, dans les trois heures précédentes, elle a conduit un véhicule — véhicule à moteur, bateau, aéronef ou matériel ferroviaire — ou en a eu la garde ou le contrôle ou que, s'agissant d'un aéronef ou de matériel ferroviaire, elle a aidé à le conduire, le véhicule ayant été en mouvement ou non, peut lui ordonner de se soumettre aux mesures prévues à l'alinéa a), dans le cas où il soupçonne la présence de drogue, ou aux mesures prévues à l'un ou l'autre des alinéas a) et b), ou aux deux, dans le cas où il soupçonne la présence d'alcool, et, au besoin, de le suivre à cette fin : a)

subir immédiatement les épreuves de coordination des mouvements prévues par règlement afin que l'agent puisse décider s'il y a lieu de donner l'ordre prévu aux paragraphes (3) ou (3.1);

b)

fournir immédiatement l'échantillon d'haleine que celui-ci estime nécessaire à la réalisation d'une analyse convenable à l'aide d'un appareil de détection approuvé.

Code criminel L.R.C. (1985), ch. C-46, s. 254

254(3) Samples of breath or blood If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the

46 consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (a)

(b)

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, if any, of alcohol in the person's blood, or

(ii)

if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood; and

if necessary, to accompany the peace officer for that purpose.

Criminal Code R.S.C. 1985, c. C-46, s. 254

254(3) Prélèvement d'échantillon d'haleine ou de sang L'agent de la paix qui a des motifs raisonnables de croire qu'une personne est en train de commettre, ou a commis au cours des trois heures précédentes, une infraction prévue à l'article 253 par suite d'absorption d'alcool peut, à condition de le faire dans les meilleurs délais, lui ordonner : a)

b)

de lui fournir dans les meilleurs délais les échantillons suivants : (i)

soit les échantillons d'haleine qui de l'avis d'un technicien qualifié sont nécessaires à une analyse convenable permettant de déterminer son alcoolémie,

(ii)

soit les échantillons de sang qui, de l'avis du technicien ou du médecin qualifiés qui effectuent le prélèvement, sont nécessaires à une analyse convenable permettant de déterminer son alcoolémie, dans le cas où l'agent de la paix a des motifs raisonnables de croire qu'à cause de l'état physique de cette personne elle peut être incapable de fournir un échantillon d'haleine ou le prélèvement d'un tel échantillon serait difficilement réalisable;

de le suivre, au besoin, pour que puissent être prélevés les échantillons de sang ou d'haleine.

Code criminel L.R.C. (1985), ch. C-46, s. 254

495(1) Arrest without warrant by peace officer A peace officer may arrest without warrant

47 (a)

a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence,

(b)

a person whom he finds committing a criminal offence, or

(c)

a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

Criminal Code R.S.C. 1985, c. C-46, s. 495

495(1) Arrestation sans mandat par un agent de la paix Un agent de la paix peut arrêter sans mandat : a)

une personne qui a commis un acte criminel ou qui, d'après ce qu'il croit pour des motifs raisonnables, a commis ou est sur le point de commettre un acte criminel;

b)

une personne qu'il trouve en train de commettre une infraction criminelle;

c)

une personne contre laquelle, d'après ce qu'il croit pour des motifs raisonnables, un mandat d'arrestation ou un mandat de dépôt, rédigé selon une formule relative aux mandats et reproduite à la partie XXVIII, est exécutoire dans les limites de la juridiction territoriale dans laquelle est trouvée cette personne.

Code criminel L.R.C. (1985), ch. C-46, s. 495

Charter of Rights and Freedoms 9. Detention or imprisonment Everyone has the right not to be arbitrarily detained or imprisoned. Constitution Act, 1982 R.S.C. 1985, App. II, No. 44, Sched. B, Pt. I, s. 9

9. Détention ou emprisonnement Chacun a droit à la protection contre la détention ou l'emprisonnement arbitraires. Loi constitutionnelle de 1982 L.R.C. (1985), Annexe II, no. 44, s. 9

10. Arrest or detention Everyone has the right on arrest or detention

48 (a)

to be informed promptly of the reasons therefor;

(b)

to retain and instruct counsel without delay and to be informed of that right; and

(c)

to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Constitution Act, 1982 R.S.C. 1985, App. II, No. 44, Sched. B, Pt. I, s. 10

10. Arrestation ou detention Chacun a le droit, en cas d'arrestation ou de détention : a)

d'être informé dans les plus brefs délais des motifs de son arrestation ou de sa détention;

b)

d'avoir recours sans délai à l'assistance d'un avocat et d'être informé de ce droit;

c)

de faire contrôler, par habeas corpus, la légalité de sa détention et d'obtenir, le cas échéant, sa libération.

Loi constitutionnelle de 1982 L.R.C. (1985), Annexe II, no. 44, s. 10 24(2) Exclusion of evidence bringing administration of justice into disrepute 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. Constitution Act, 1982 R.S.C. 1985, App. II, No. 44, Sched. B, Pt. I, s. 24

24(2) Irrecevabilité d'éléments de preuve qui risqueraient de déconsidérer l'administration de la justice Lorsque, dans une instance visée au paragraphe (1), le tribunal a conclu que des éléments de preuve ont été obtenus dans des conditions qui portent atteinte aux droits ou libertés garantis par la présente charte, ces éléments de preuve sont écartés s'il est établi, eu égard aux circonstances, que leur utilisation est susceptible de déconsidérer l'administration de la justice. Loi constitutionnelle de 1982 L.R.C. (1985), Annexe II, no. 44, s. 24

49

Traffic Safety Act 69. Duty of driver, etc. re accident 69(1) Where an accident in which a vehicle is involved occurs on a highway, the driver or other person in charge of any vehicle that was directly or indirectly involved in the accident shall (a)

remain at the scene of the accident or, if the person has left the scene of the accident, immediately return to the scene of the accident unless otherwise directed by a peace officer,

(b)

render all reasonable assistance, and

(c)

produce in writing to anyone sustaining loss or injury, to any peace officer and to any witness all or such of the following information as is requested: (i)

that person's name and address;

(ii)

the number of that person's operator's licence;

(iii) the name and address of the registered owner of the vehicle; (iv) the licence plate number of the vehicle; (v)

a financial responsibility card issued in respect of that vehicle.

Traffic Safety Act R.S.A. 2000, c. T-6, s. 69

71. Reports of drivers re accidents 71(1) A driver of a vehicle involved in an accident shall, in the form and manner prescribed by regulation, provide a report of the accident to (a)

a peace officer having jurisdiction where the accident occurred, or

(b)

an employee of a police service having jurisdiction where the accident occurred who is authorized to receive those reports.

71(2) If the driver is incapable of making the report required by subsection (1) and there is another occupant of the vehicle capable of making the report, the occupant shall make the report required to be made by the driver. 71(3) If a report has not been made under subsection (1) or (2) and the driver or occupant is not the owner of the vehicle, the owner shall make the report forthwith after learning of the accident. 71(4) If the driver is alone, is the owner of the vehicle and is incapable of making the report required by subsection (1), the driver shall make the report forthwith after becoming capable of making it. Traffic Safety Act R.S.A. 2000, c. T-6, s. 71

50

Use of Highway and Rules of the Road Regulation — Alta. Reg. 304/2002 (Traffic Safety Act) 37. Stop signs A person driving a vehicle that is about to enter onto a highway from another highway that is marked by a "stop" sign shall bring the vehicle to a stop (a)

before entering on the intersecting roadway and at a point no further than 3 metres back from the intersecting roadway, or

(b)

in the case where there is (i)

a marked crosswalk on the near side of the intersection, immediately before entering on the crosswalk, or

(ii)

a marked stop line on the near side of the intersection, at the stop line.

Use of Highway and Rules of the Road Regulation — Alta. Reg. 304/2002 (Traffic Safety Act) Alta. Reg. 304/2002, s. 37

38. Proceeding after stopping When a person driving a vehicle is required to stop the vehicle pursuant to section 36 or 37, that person (a)

shall not cause the vehicle to proceed until the condition of the traffic on the highway being entered on is such that the vehicle can enter onto the highway in safety, and

(b)

shall yield the right of way to all vehicles and pedestrians approaching that person's vehicle and that are on the highway being entered.

Use of Highway and Rules of the Road Regulation — Alta. Reg. 304/2002 (Traffic Safety Act) Alta. Reg. 304/2002, s. 38