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A woman was charged with impaired driving and driving with excessive blood alcohol concentration (BAC) after she was involved in a car accident on Highway 401 in Toronto. The Crown dropped the impaired driving charge but a trial, R. v. Lofthouse (2017), proceeded on the ‘over 80’ charge. In the trial, defence counsel did not call evidence but sought to have the BAC readings and the toxicologist’s evidence excluded on the grounds that the accused’s right not to be arbitrarily detained had been violated during her arrest and her section 8 Charter rights were infringed during the subsequent search and seizure of her breath. The burden of proving that the arrest and search were lawful rested on the Crown in this case.
Upon examining the circumstances of the arrest, Justice Green found several inconsistencies in the arresting officer’s testimony and was not satisfied that there was sufficient objective foundation for the officer’s subjective belief that the accused had committed impaired driving, to justify her arrest or the subsequent Intoxilyzer demand. Accordingly, the judge found that the accused’s Charter rights under ss. 8 and 9 had been infringed. This finding shifted the burden on defense counsel to establish that the appropriate remedy for this Charter breach is to exclude the defendant’s breath readings and the expert toxicology report.
A woman was driving in an express lane of Highway 401 in Toronto and began to change lanes in preparation for taking the Morningside exit when the side of her Chevy struck the rear driver side of an accelerating Subaru in the lane to her right. This resulted in damage to the rear of both vehicles. Both drivers subsequently pulled over onto the right shoulder of the exit ramp and parked there. After an approximate 20-minute discussion on how to address the damage to the cars, the two occupants of the Subaru decided to call the police to report the collision.
The men waited in their vehicle for police to arrive while the woman paced near the passenger side of her car, of which she was the sole occupant. The men noticed that she was drinking from a water bottle and chain-smoking. They speculated that she might be “under the influence” and trying to hide the odour of alcohol, although neither of the men had observed any signs of alcohol consumption, such as the odour of alcohol, glassy vision or unsteadiness walking.
Two tow truck drivers arrived before police and one of them spoke with the two men and the woman, then returned to the men and told them he could smell alcohol on the defendant’s breath. One of the men then phoned 911 a second time and reported the tow truck driver’s suspicions about the odour of alcohol. When an officer arrived at the scene about 15 minutes later, he spoke first to the men and then to the defendant. The officer placed the defendant in his SUV and then told the two men that she was drunk and asked them to follow him to the police station.
The arresting officer stated that prior to his arrival at the scene, he had been informed by the dispatcher that a female driver at the collision was “possibly impaired’ and had consumed mouthwash and multiple bottles of water and was smoking. The officer testified that he could detect an odour of alcohol on the defendant’s breath and burnt marihuana on her person. He further stated that her eyes were glossy and red, her face was flushed and her speech was ‘obviously slurred’ and imprecise. When asked, the defendant admitted to having consumed ‘5 to 6 shots’ of alcohol and ‘a little’ marihuana around noon.
The officer testified at the trial that, from this information, he formed reasonable and probable grounds to believe that the defendant had been operating a motor vehicle while impaired by drugs and alcohol. He, therefore, arrested the defendant and gave her rights to counsel and the caution, followed by a breath demand. Although the officer had an approved screening device in the SUV, he did not use it as he had already come to the opinion that the defendant was impaired.
At the station, the officer cited the following grounds for the Intoxilyzer test to the breath technician:
- A car accident caused by the defendant
- A possibly impaired driver reported by police dispatch
- The defendant’s disclosure of prior consumption of alcohol
- A ‘strong’ odour of alcohol
- Glossy, red eyes
- Flushed face
- Slurred speech
Analysis of the Arresting Officer’s Evidence
The Court noted that Constable Saldenah was only authorized to arrest the defendant for impaired driving if he believed ‘on reasonable grounds’ that she was guilty of this offence, pursuant to the Criminal Code s. 495(1)(a). In R. v. Sorrey (1990), the Supreme Court found that the validity of an arrest depends not only on an officer’s subjective belief that there are sufficient grounds for an arrest but, also, on the objective existence of reasonable and probable grounds. And, an officer is only authorized to make a ‘demand’ for a breath sample for BAC testing if he/she has reasonable grounds to believe an offence has been committed.
In the current case, defence counsel argued that regardless of Constable Saldenah’s personal belief that he had grounds for an arrest, there was, in actual fact, no objective basis for the defendant’s arrest. In his assessment of the officer’s grounds for the arrest, Justice Green found several inconsistencies in the Constable’s account, both internally and when compared with the testimony of other witnesses.
Unlike most drinking-and-driving incidents, the arresting officer did not witness the defendant’s driving conduct that led to the collision in this case. And, although an officer is entitled to use reliable information provided by others in forming his assessment of reasonable grounds, Constable Saldenah did not, in fact, ask the two witnesses about the reason for the collision, nor was this information related in the police dispatch. Nor did the Constable interview the tow truck driver on his hearsay evidence regarding the alleged smell of alcohol emanating from the defendant. Constable Saldenah also did not examine the vehicles in any way to potentially determine the cause of the collision.
As evidenced by the dispatch recordings, the calls to dispatch did not make mention of an ‘impaired driver’, contrary to the officer’s remembrance of the event. The two men at the scene also did not tell the officer that they believed the defendant was impaired. Constable Saldenah’s only impairment-relevant information was based on his own post-accident observations and his accounts that the defendant was swaying and unsteady on her feet, which was not substantiated by the two witnesses who did not notice any such conduct when they were earlier in close company with the defendant. The officer made no note of the defendant’s lack of coordination in his grounds submitted to the breath technician; only in cross-examination did he state that she exhibited unsteadiness when walking to his SUV, which he says he ‘forgot to mention’ in his prior statements.
Another discrepancy concerns the officer’s statement that he noticed a ‘strong’ odour of alcohol on the defendant. Despite a lengthy conversation in close proximity with the defendant, neither of the two men noticed anything untoward in the defendant’s eyes, speech or face, nor did they smell alcohol on her person. A further piece of evidence Justice Green found confusing was the officer’s explanation that he meant the defendant’s face was ‘very pale’ when he described her face as ‘flushed’, as these descriptive terms are inconsistent, if not entirely opposite.
Justice Green found that Constable Saldenah used circular logic (which the judge termed ‘boot-strapping’ logic) in deciding he had grounds to arrest the defendant – he assumed she was impaired and therefore caused the accident, and then relied on the ‘fact’ that she caused the accident as proof (to the breath technician) that she was impaired. Upon considering of all the Constable’s evidence, the judge concluded, “He acted prematurely, drew unsupported inferences, only minimally tested his hypothesis before concluding the defendant was an impaired driver and, ultimately, carelessly inflated his account”.
On the standard of ‘reasonable and probable' grounds for making an impaired driving arrest, the Court relied on R. v. Stellato. “The test is whether, objectively, there were reasonable and probable grounds to believe the suspect’s ability to drive was even slightly impaired by the consumption of alcohol.”
Applying this test to the current case, Justice Green was not convinced, based on the totality of circumstances, that there was an adequate objective foundation for the Constable’s subjective belief that the defendant had committed an impaired driving offence, to justify her arrest or an Intoxilyzer demand. The judge believed that the evidence did objectively support a roadside screening demand based on ‘reasonable suspicion’; however, the higher standard needed for an arrest was not met (i.e. which requires ‘reasonable grounds to believe’). Accordingly, Justice Green found that the defendant’s arrest and the s. 254(3) breath demand are not defensible, and therefore, the defendant’s ss. 8 and 9 Charter rights were breached.
On the finding that the defendant’s Charter rights were infringed, the burden in the case shifted to defence counsel to establish, under s. 24(2) of the Charter, that the appropriate remedy to these violations is the exclusion of the Intoxilyzer readings and the expert toxicology report. In this case, the defendant’s lawyer was able to successfully argue that the evidence should be excluded and the defendant won his case.
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