Recent Reported Cases

Case Study

R. v. Klus, [2017] O.J. No. 5524

1. Both counsel did a fine oral presentation with respect to the matter, but the materials were also excellent and I just wanted to put that on the record. They really enabled to focus and organize the submissions that were made and let me deal with the issues in the fashion that they need to be. It also will permit me not to have to extensively quote from the cases, as they have been quoted from and referred to, and many of them are fundamental cases that everyone is familiar with the principles, but again it was important that they were included and referred to. So my appreciation to everyone.
2. So factually, an officer made some observations of a motor vehicle. It was being operated by Ms. Klus, as it was determined. It had some front end damage. Earlier in the evening the officer had heard an on-air indication that there had been a motor vehicle collision where the driver had not remained. The vehicle was similar and had some front end damage. There was no actual license plate that was noted or provided to the officer that he had.
3. When he made the stop at 8:48, it would appear to be in the evening, it was a dual purpose; one was for the hit-and-run potential investigation, but also for the safety of the motor vehicle, safe operation, so under the Highway Traffic Act. During the course of his stop he noted that the front end damage was heavy, heavy to the extent that he asked the vehicle be turned off; as he indicated, there was a smell of burning rubber.
4. The smell of alcohol emanating from the breath of Ms. Klus he indicated was slight. He inquired as to whether or not there had been any drinking of alcoholic beverages and there was a denial. By 9:00 a.m. he had given the ASD demand, administered the test and had received a result of 'high.' He did not know what that meant, nor did the three sources that he sought advice from know what that meant. He did some follow-up and eventually acted on some of the advice he received, it would appear, and ultimately at 9:16, having made some additional observations of the defendant, in particular as it relates to her walking, which he refers to -- and I'll quote it from page 22 of the transcript -- "She's at -- I know she got out of -- when she got out of her vehicle, when she's walking around, it appeared that she was very consciously trying to place her feet. Like, when she was walking it was, like, deliberate to prevent, like, kind of, like, falling kind of thing, like it was, like, an elderly person trying to consciously place a foot down." And this is subsequent to the ASD. And the indication was that Ms. Klus was present in her motor vehicle when that had taken place.
5. There was also another observation the officer made just prior to arrest, which he indicates was a significant event. And his language again, at page 31, "And when I really noticed the strong smell of the alcoholic beverage, that was the significant event." At that point in time he gave rights to counsel, arrested for impaired, and ultimately the defendant was transported to the station where breath tests were taken. 
6. Issue number one, breach of rights to counsel immediately upon detention for the investigation into the fail to remain, breach of s.10(b) rights. 
7. I'm satisfied that the initial stop by the officer included the dual purpose stop of both the Highway Traffic Act investigation and a Criminal Code potential criminal investigation. Using the tests in Orbanski and Brown, I'm satisfied that there is no rights to counsel that would immediately occur as a result of such a stop, that there is no issue with respect to this being an appropriate stop. The dual purpose is permitted and the initial investigation under the Highway Traffic Act, coupled with the possible Criminal Code investigation does not trigger immediate rights to counsel on such a stop.
8. Issue two, lack of reasonable suspicion of alcohol in the body, a breach of s.8, was abandoned by counsel.
9. Issue three, forthwith aspect and breaches accordingly of s.8, 9, 10(a) and 10(b). 
10. The demand for the ASD was made on the basis of the reasonable suspicion that the officer had when he spoke to Ms. Klus at the window of her vehicle. He had the device in his vehicle and it would appear that the actual stop of 8:59 -- sorry, 8:58 and then the ultimate sample being taken at 9:00 were within two minutes of each other. Although the officer was uncertain whether he made the demand, then went to his vehicle to retrieve the device or whether or not he retrieved the device and then approached the defendant in her vehicle, although there was some uncertainty with respect to this and whether or not it would have been forthwith upon him
forming the reasonable suspicion, I am satisfied that it was sufficiently forthwith given the brief two-minute window for the purposes as required. And that's really for the concept that the test is to be forthwith within the forming of the opinion, it was sufficiently so for the purposes and I'm satisfied that there is no breach in the circumstances. 
11. Issue four, was there a subjected belief of the officer in the proper functioning of the ASD reasonable and was this a breach of s.8?
12. This was referred to by Mr. Scott as the red herring issue. So let me put it this way; ultimately, the officer did not rely on the ASD result, it would appear, either subjectively or objectively in any further testing or issues that occurred. He didn't know what 'high' meant and despite the fact that he had made some inquiries from multiple sources, no one got back to him in a way that enabled him to make any reliance on the ASD. So he did not know or rely on it, so, in essence, it is of no consequence in the circumstances. So there would not have been a s.8 breach because nothing occurred in and of itself because there was no reliance on the ASD
'high' reading. But clearly what happened at this point in time sets the stage for the next argument, which is issue five.
13. Issue five, a breach of 10(b) after the ASD demand at 8:58 and before the arrest at 9:16.
14. Counsel's position is that there should have been a rights to counsel situation triggered after the officer was unable to act on the result of the ASD, not having the subjective or objective grounds to do so, and as indicated he did not. So at that time what was initially a stop that was dual purpose that morphed into an ASD demand, once the basis of that ASD stop was no longer valid or operational, that would have triggered a detention, which clearly had occurred, and there would have triggered the need to inform the defendant of the reason for the detention as it was no longer for the purposes of ASD and that likewise would have triggered s.10(b) rights. Unless, again, there was, similar to the ASD, a valid reason why those rights would not have been triggered.
15. So, as indicated, rights to counsel are triggered immediately upon detention; the rights to counsel trigger both the informational duty and implementational duty pursuant to Suberu. Ms. Klus, after she would have been tested on the ASD and the basis of that test was no longer valid to be relied on, would have been engaged in a detention by the officer for now other reasons pursuant to Orbanski. It's fairly clear that was happening at that point in time. And here there was nothing that happened at that point in time with respect to any rights to counsel or any indication as to why Ms. Klus was now being detained. In many ways it would be a fairly classic
circumstance where there was now going to be some level of further investigation based on the officer's evidence, given the advice he had received. He chose not to obtain a further ASD but chose to engage in some level of questioning and observation of the defendant and he should have given her her rights.
16. The presence, absence, or difficulty finding the location of the phone that she had, her cell phone, really factors little into this equation. This isn't a George or Quansah type analysis at this point in time, but really it's a question of what is the basis of the detention at this point in time. The basis, as it originally was, has now changed and the officer should have given Ms. Klus her rights as to a) the reason for her detention, and b) her rights to counsel.
17. I'm not going to speculate as to what she may or may not have done once she was given those rights, but clearly the key and the reasons under the Charter is that she should have been given her rights, she should have been aware of what was happening, the purpose for the renewed detention, or continued detention, because the purpose had changed, and her legal rights associated with that detention at this point in time. So I see that this is both a breach of 10(a) and 10(b). And that's been made out.
18. Issue six, lack of reasonable grounds.
19. Prior to the ASD being administered and the officer forming the opinion to make the demand, there was a slight odour of alcohol, there was a denial of drinking alcoholic beverages, there was the driving of a vehicle that had observable front end damage, but there was no bad or problematic driving, and there were no issues with the manipulation of any documents, there was no issues with responsiveness to questions. There were no issues other than the slight odour of alcohol and driving a vehicle that had observable front end damage. That was sufficient and only sufficient for the purposes of the ASD demand and the reasonable suspicion.
20. Post that time, the additional evidence that came to the officer was the conscious placing of the feet, and I have read the paragraph of how the officer describes that. It's rather a challenging description and at the highest it would appear that the officer made observations that there appeared to be some conscious placing of the feet on the ground similar to an elderly person watching their steps. And the officer saw no challenges in the immediate environ such as uneven pavement or other challenges that would have necessitated that type of placing of the feet. But certainly it leaves open the issue of whether or not the individual had any challenges, none of which the officer are aware of.
21. The other aspect is the pupils being constricted. Again, there's no medical evidence with respect to alcohol causing the constriction of pupils. And at the same time there's eyes that are red, that eyes that are red appear to be noted by the officer attributable to the crying that the complainant has now -- sorry, not complainant - defendant has now engaged in during the course of the stop, that she had become emotional. Her speech, likewise, the officer attributes some potential slurring, because he's not clear whether it's slurring or not or whether it's attributable to the multiple piercings that she had in her mouth area and again does not appear
to be in and of itself, nor in conjunction with other factors, something that the officer relied on based on his immediate indication that although there appeared to be some impact on the speech, she had a lot of piercings and he considered that as the reason.
22. His final comment, though, is that the smell was more pronounced. It was the significant event, as he indicated at page 31.
23. So as the case law indicates, reasonable grounds are not a checklist situation. It's not a question of things needing to be present to automatically, then, result in reasonable and probable grounds. The cases that were provided that were not binding on me but were given by way of illustration, likewise, although interesting and of some assistance, are all factually driven by those individual facts and the weight the judge put on them. Clearly, the test with Stellato [1994] 2 S.C.R. 478 is you can be slightly impaired and reasonable grounds for impairment must be looked at in the totality of all of the circumstances.
24. I am going to address it this way; either with or without the additional evidence obtained post the ASD test, so after 9:00 p.m., which appears to include the conscious placing of the feet and the increase in the smell of alcohol, everyone knowing that smell in and of itself, whether strong or less, based on case law is not in and of itself an indicator of the level of consumption. But either way, in my mind, that's not enough to make out reasonable and probable grounds of impairment in the circumstances.
25. The absence of any driving behaviour, save and except the fact that the vehicle was being driven with obvious front end damage, and the slight odour of alcohol, or any odour of alcohol, even added to the conscious placing of one's feet, in my mind, is insufficient to meet the test of reasonable grounds for impairment as required by case law.
26. Issue seven, and that is should the Crown be entitled to rely on a reasonable ground for impairment if those grounds were obtained in breach of the Charter?
27. Looking at the analysis in Mahmood and Soules as referred to in the factum and as argued, I do see this as an analogous situation that if there has been a breach, as I have found pursuant to s.10(a) and (b), it would be incorrect to then rely on additional evidence that was obtained regarding any impairment. Knowing that the Shepherd test, the Stellato test, Golub, Bush, all of them talk about the reasonable and probable grounds standard and that it's not an onerous test and that it's not a score card, there is just not enough here, in my mind, to make even the threshold in the circumstances.
28. But in those circumstances, if additional information, the placing of the feet and the stronger smell, in and of themselves are obtained post-Charter breach, that in essence puts the officer back in the initial position he was in where all he had was a small, albeit slight at the outset, no admission of drinking and damage to the front of the vehicle, and no negative driving behaviour, that was insufficient at the outset. I don't see that it has changed. He shouldn't be able to rely on the additional stronger smell, nor the conscious placing of the feet, knowing nothing about the individual's usual gait. In the circumstances, in my mind, that would be contrary to the provisions of the Charter to be able to rely on such additional evidence.
29. Having said that, with or without that evidence, if I'm wrong, I am still not satisfied that the test has been met on impaired driving even with the additional stronger smell and the conscious placing of the feet in the totality of the circumstances.
30. So doing the 24(2) analysis pursuant to Grant, [2009] 2 S.C.R. 353 the seriousness of the Charter breach, the impact of the Charter-protected rights and society's interest in adjudication of Criminal Code matters on their merits, clearly both the 10(a) and (b) component here with respect to why an individual is being detained and the rights to counsel are really the basis of our criminal justice system and the suspension of those rights are only occurring and should only occur in limited and prescribed circumstances. Despite the fluidity of this particular investigation, there was a change and the change occurred after the officer had no idea what the 'high' reading meant and no one he contacted knew what it meant, so he was obliged to provide rights because he was now detaining Ms. Klus for different purposes and he should have notified her of that change in the reason for detention and given her her 10(b) rights accordingly.
31. Two, in my mind, this is a clear impact on the Charter-protected rights. The ultimate breath tests that were taken at the station would only have been able to be taken had there been the arrest on the impaired driving in these circumstances. And, secondly, the additional observations that the officer made without giving the additional rights were critical and the only additional evidence as it relates to impairment beyond what he had at the outset, which was only sufficient for the ASD, clearly, in his mind, because that's all he did at the outset. So, again, these are significantly impacting Charter-protected rights. 
32. Finally, although it might be somewhat trite to say that it's always in society's interest to have Criminal Code matters adjudicated on their merits, certainly it is this balance of individual rights and societal rights that has to be viewed. And individual rights which are not properly protected really constitute a breach of bringing the administration of justice into disrepute because the individual rights make up our societal-protected rights in many respects. So the balance in this case, in my mind, has to be in favour of the protection of individual rights. 
33. I find both a 10(a) and (b) breach. Section 24(2), therefore, does not permit the reliance on the intoxilyzer results and, therefore, there's no other evidence as it relates to the over 80, so that will be dismissed.
34. Similarly, s.24(2) would not permit the additional observations of the increase in the smell of alcohol and the conscious placing of the feet to be permitted to be considered in the impaired reasonable grounds analysis, it can't be relied on, and it will be dismissed.
35. In the alternative, if I'm wrong in that regard, even with the inclusion of those additional factors, based on my earlier ruling and comments with respect to the level of the standard, the threshold standard, even slight impairment is not made out based on those additionally included aspects. And, accordingly, the Crown has not proven that beyond a reasonable doubt and the impaired is dismissed.
36. MR. WENDL: Thank you very much, Your Honour.
37. THE COURT: Thank you. And again, Mr. McCrackin, I know Mr. Scott's not here, but I wish that you would communicate to him the assistance, both the written materials and the oral submissions, were to me. Clearly I've been able to focus based on how the presentation was and the responses in order to give my judgment today.
38. MR. MCCRACKIN: Certainly, thank you, Your Honour. I've taken very detailed notes for Mr. Scott.
39. THE COURT: Thank you. Thank you, Ms. Klus.
40. CANDICE KLUS: Thank you.
41. THE COURT: You're welcome.