CITATION:
R. v. Labadie, 2011
          ONCA 227

DATE: 20110324

DOCKET: C51318

COURT OF APPEAL FOR ONTARIO

Blair, MacFarland and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Matthew Labadie

Respondent

David Friesen, for the applicant/appellant

Frank Miller, for the respondent

Heard:  September 3, 2010

On appeal from the decision of the Justice Edward W. Ducharme
          of the Superior Court of Justice, sitting as a summary conviction appeal
          court, on October 26, 2009.

Watt J.A.:

[1]

This is a tale of two mistakes. And of our attempt to
    determine whether we can correct them.

[2]

The first mistake happened at trial.  It began when the trial judge misapprehended
    the testimony of a witness, about evidence that established a condition
    precedent to the admissibility of other evidence crucial to the prosecutions
    case.  That misapprehension resulted in a
    dismissal of the charge contained in the information.

[3]

The second mistake occurred in the disposition the
    summary conviction appeal judge made of the Attorney Generals appeal from
    acquittal to the Superior Court of Justice.  Instead of entering a conviction or ordering a new trial, the summary
    conviction appeal judge remitted the case to the trial judge to reconsider his
    verdict based on a correct understanding of the misapprehended evidence.

[4]

The Attorney General seeks leave to appeal to this
    court and invites us to make the order he submits the summary conviction appeal
    judge should have made: to enter a conviction and either impose sentence or
    remit the case to the trial judge to do so.

[5]

For reasons that I will develop, I would grant leave to
    appeal, allow the appeal, set aside the order of the summary conviction appeal
    judge remitting the matter to the trial judge and enter a conviction.  I would remit the case to the trial judge to
    impose a fit sentence.

THE BACKGROUND FACTS

[6]

The
    circumstances surrounding the offence charged exert little influence on the
    issues joined by the parties on appeal.  A
    brief recapture of some features of the procedural history of the case will be
    adequate for our purposes.

The
    Charge

[7]

In
    the early morning of April 15, 2007, a police officer stopped the vehicle
    Matthew Labadie (the respondent) was driving.  Because of the manner in which the respondent was driving, and his condition
    when the officer approached him, the officer made a proper Approved Screening Device
    demand.  The respondent blew into the
    device: it registered a fail reading.

[8]

The
    officer transported the respondent to the local detachment.  After
Charter
advice and an unsuccessful attempt to speak with counsel of choice, the
    respondent spoke to duty counsel before providing two breath samples in
    response to a proper demand.  Both
    readings exceeded 80 mgs of alcohol in 100 mls of blood.

[9]

The
    respondent was charged with operating a motor vehicle with a blood-alcohol
    concentration in excess of 80 mgs of alcohol in 100 mls of blood.  The prosecutor chose to proceed by summary
    conviction.

The Trial Proceedings

[10]

The
    prosecutor adduced evidence from the arresting officer and the qualified
    technician who administered the Intoxilyzer test to the respondent. The
    respondent sought exclusion of some of the evidence on the ground of
    constitutional infringement, but the trial judge dismissed the application.

Proof of Blood-Alcohol Concentration

[11]

To
    prove the respondents blood-alcohol concentration at the time of his
    apprehension and driving, the prosecutor relied upon the presumption of
    identity in s.

258(1)(c)
    of the
Criminal Code
.

[12]

The
    respondent challenged the applicability of the presumption.  Trial counsel for the respondent submitted
    that the evidence of the qualified technician, Prov. Cst. Keller, failed to
    satisfy the condition precedent of s. 258(1)(c)(iii), because it did not
    demonstrate that the sample was provided
directly
into an approved instrument.  Thus,
    counsel said, it was not a proper sample of the respondents breath.

[13]

Trial
    counsel for the respondent was mistaken about the evidence of the qualified
    technician.  Prov. Cst. Keller testified:

and
    then he provided a proper sample,
directly
into the mouth piece which goes in,
directly
into the external breath tube of the instrument.

[14]

She
    was not cross-examined on this aspect of her testimony.

The Dismissal of the Charges

[15]

The
    trial judge held that the prosecutor had failed to establish beyond a
    reasonable doubt that the breath samples provided by the respondent had been
    received directly into an approved instrument, as required by s.
    258(1)(c)(iii) of the
Criminal Code
.
    This evidentiary shortfall deprived the prosecutor of the presumption of identity
    in s.  258(1)(c).  In the
    absence of evidence of the blood-alcohol concentration of the respondent when he
    was apprehended and operating his motor vehicle, the trial judge dismissed the
    charge on the basis of this very small technicality.

The Notice of Summary Conviction Appeal

[16]

The
    Attorney General appealed the respondents acquittal to the Superior Court of
    Justice. The right of appeal invoked was s. 813(b)(i) of the
Criminal Code
, which permits the
    Attorney General to appeal from an order that dismisses an information. The
    single ground of appeal advanced was phrased in these terms:

1.
That
    the learned trial Judge, miscomprehended [
sic
]
    the evidence of Cst. Sherri Keller in respect to the legal requirement of the
    type of breath sample that was provided.

[17]

The
    remedy sought on the summary conviction appeal was an order allowing the
    appeal, setting aside the dismissal of the information, and entering a
    conviction of the offence charged.

The Positions of the Parties on the Summary
    Conviction Appeal

[18]

The
    factum of the Attorney General as the appellant in the summary conviction
    appeal court recited the issues and the order requested.  However, it did not include submissions about
    the scope of the appeal courts jurisdiction or the courts authority to enter
    a conviction on an appeal from acquittal on grounds involving questions of
    fact.

[19]

The
    respondent did not dispute the right of the Attorney General to appeal under s.

813(b)(i) on grounds involving
    questions of fact.  But, according to the
    respondent, to succeed on factual grounds, the Attorney General had to
    establish that the verdict rendered at trial was unreasonable.  The only remedy available where an acquittal
    is unreasonable is a new trial.  The
    summary conviction appeal court may only enter a conviction where the error
    made at first instance is an error that involves a question of law alone.

The Decision of the Summary Conviction Appeal Judge

[20]

The
    summary conviction appeal judge found that the trial judge had misapprehended
    the evidence of the qualified technician.  Contrary to the trial judges finding, there was evidence that the
    respondent provided a proper breath sample
directly
into the approved instrument. The summary conviction appeal judge concluded:

The
    trial judges finding to the contrary, his finding that Constable Keller had
    not used the word directly, is plainly wrong, and constituted a palpable
    error in his assessment of the facts. To the extent that the trial judges
    verdict rests upon this erroneous finding, it is unreasonable, and cannot be
    permitted to stand.

[21]

The
    summary conviction appeal judge later turned to the issue of remedy.  He expressed his conclusion on this issue in
    these terms:

In
    the result, therefore, the Crowns appeal is allowed.  The decision of the trial judge acquitting
    Mr. Labadie is set aside. The case is remitted to the trial judge to reconsider
    his verdict in light of my finding that he inaccurately referred to the
    testimony of Constable Keller.

THE GROUND OF APPEAL

[22]

The
    Attorney General applies for leave to appeal from the decision of the summary
    conviction appeal judge.  The ground of
    appeal on which leave to appeal is sought alleges that the summary conviction
    appeal judge erred in law by remitting the case back to the trial judge to
    reconsider his verdict.

ANALYSIS

[23]

This
    application for leave to appeal and appeal are governed by s. 839(1)(a) of the
Criminal Code
.  As a necessary first step, we must determine
    whether this is a case in which leave to appeal can and should be granted.

The Threshold Issue: Leave to Appeal

The Governing
    Principles

[24]

Appeals
    to this court in summary conviction proceedings are not as of right or
    unrestricted in the nature of grounds that may be advanced.  Section 839(1) controls.  Where the first summary conviction appeal was
    taken under s. 813 and decided under s. 822, s. 839(1)(a) governs.  Leave to appeal must be granted.  The ground of appeal must involve a question
    of law alone.

[25]

Despite
    the standardless sweep that the language of s. 839 displays, the resident
    discretion is not unbounded.  In the end,
    the discretion must be exercised in the interests of justice.  Yet, no single word formula can embrace every
    case in which the interests of justice warrant leave to appeal.

[26]

Two
    factors occupy a prominent position in decisions about leave to appeal.  The first is the significance, beyond the
    specific case, of the proposed question of law to the administration of justice
    in the province.  And the second, is the
    strength of the proposed appeal:
R. v. R.
    (R.)
(2008), 90 O.R. (3d) 641 (C.A.), at para. 30.  Leave to appeal is granted sparingly:
R. (R.)
at para. 37.

[27]

Where
    the issues raised in the proposed appeal have a significance that extends
    beyond the peculiar circumstances of the case in which they arise, we may grant
    leave to appeal even if the merits of the appeal are not strong.  On the other hand, where the merits of the
    appeal appear very strong, we may grant leave to appeal despite the lack of any
    general significance or transcendant importance:
R. (R.)
at para. 37.

The Principles Applied

[28]

This
    is a case in which leave to appeal should be granted.  Both factors favour it.

[29]

The
    issue raised relates to the appellate jurisdiction of the summary conviction
    appeal court in appeals taken by the Attorney General under s. 813 from
    dismissals of informations at trial in summary conviction proceedings. This
    issue transcends the peculiar facts of this case and is of significance to the
    general administration of criminal justice. The ground involves a consideration
    of the scope of appellate jurisdiction, more specifically, the effect of the
    referential incorporation by s. 822(1) of ss. 683-689 of Part XX1 of the
Criminal Code
as the dispositive
    authority of summary conviction appeal courts on appeals under s. 813.

[30]

And
    second, as the respondent acknowledges, the proposed ground of appeal has
    merit.

The
    Availability of the Remedy Granted

[31]

The
    summary conviction appeal judge allowed the appeal of the Attorney General, set
    aside the order dismissing the charge contained in the information and remitted
    the case to the trial judge to reconsider his verdict in light of his
    misapprehension of the evidence.

[32]

To
    determine whether the remedy the Attorney General seeks here, entry of a
    conviction, should be granted, it is necessary first to determine whether the
    order made by the summary conviction appeal judge was a remedy he had the
    authority to grant.

The Positions of the Parties on Appeal

[33]

The
    parties share common ground that the order made by the summary conviction appeal
    judge, remitting the case to the trial judge, was made without
    jurisdiction.  They submit that on
    appeals taken under s. 830, s. 834(1)(b) expressly authorizes the appeal court
    to remit the case to the trial court.   But on appeals under s. 813, of which this was one, neither s. 822(1),
    nor the provisions of Part XXI that it incorporates by reference, make this
    remedy available.

The Governing Principles

[34]

In
    appeals taken under s. 813(b)(i) from an order dismissing an information in
    summary conviction proceedings, the dispositive authority of the appeal court
    resides in s. 822(1) of the
Criminal Code
.  Rather than expressly conferring dispositive
    authority on the appeal court, as s. 834 does for appeals taken under s. 830,
    s. 822(1) incorporates some, but not all, of the provisions of Part XXI that
    govern disposition of indictable appeals to the court of appeal. None of the
    incorporated provisions of Part XXI, in express terms or by necessary
    implication, permit the summary conviction appeal court, on an appeal under s.
    813, to remit the case to the trial court along with the opinion of the appeal
    court.

[35]

The
    authorities confirm the absence of any jurisdiction in appeal courts to remit a
    case to the trial court, together with the opinion of the appeal court, in
    appeals taken under s. 813 and decided under s. 822(1):
R. v. Wilson
(1993), 86 C.C.C. (3d) 145 (B.C. C.A.), at pp.
    162-163;
R. v. Wilcox
(2001), 192 N.S.R.
    (2d) 159 (C.A.), at para. 128; and
R. v.
    Kelly
(2002), 243 N.S.R. (2d) 201 (C.A.), at para. 10.

The Principles Applied

[36]

The
    parties have it right.  In appeals under
    s. 813(b) of the
Criminal Code
, the
    summary conviction appeal court has no authority under s. 822(1), for that
    matter or otherwise, to remit the case to the trial court for further consideration
    together with the opinion of the appeal court.  Section 822(1) contains no express provision
    that authorizes this remedy.  Likewise,
    the incorporated sections of Part XXI include no such authority.

[37]

The
    order remitting the case to the trial judge was made without jurisdiction and
    must be quashed. The more difficult question is what remedy should have been
    granted. That inquiry leads to another that requires examination of the nature
    of the error that must be established in appeals by the Attorney General from a
    dismissal of information in summary conviction proceedings.

The Nature of the Error
    and the Available Remedies

[38]

To
    situate the discussion that follows in its proper context, it is helpful to
    recall the ground upon which the appeal of the Attorney General was based and
    the nature of the errors found by the summary conviction appeal judge.

The Reasons of the Summary Conviction Appeal Judge

[39]

The
    notice of appeal filed by the Attorney General alleged a single ground of
    appeal: that the trial judge miscomprehended [
sic
] the evidence of Cst. Sherri Keller in respect of the legal
    requirement of the type of breath sample that was provided.  The agent of the Attorney General did not
    characterize the error as one of fact, law, or mixed fact and law.

[40]

The
    summary conviction appeal judge identified the error of the trial judge as
    finding that Prov. Cst. Keller had
not
said that she had received the respondents breath sample
directly
into an approved instrument.  In fact, the officer had given the evidence,
    which is a necessary condition precedent to the admissibility of the
    certificate and reliance on the presumption of identity.

[41]

The
    summary conviction appeal judge characterized the trial judges finding as
    plainly wrong and a palpable error in his assessment of the facts.  In the result, the summary conviction appeal
    judge concluded, that the verdict was unreasonable and could not stand.

The Positions of the Parties on Appeal

[42]

For
    the appellant, Mr. Friesen submits that the summary conviction appeal judge
    erred in the remedy he ordered, but not otherwise.  The trial judges misapprehension of evidence
    led him to a finding that the conditions precedent to the operation of the
    presumption of identity had not been satisfied.  In the result, the trial judge had no evidence of the blood-alcohol
    concentration of the respondent at the time he was operating the motor
    vehicle.  But for this error, Mr. Friesen
    continues, the trial judge would have convicted the respondent.

[43]

Mr.
    Friesen says that the summary conviction appeal judge had two remedies that he
    could have granted once having found the error made by the trial judge: order a
    new trial, or enter a conviction.  In the
    circumstances, Mr. Friesen urges, the only appropriate remedy was to enter a
    conviction. But for the error, the prohibited blood-alcohol concentration would
    have been proven by the operation of the presumption of identity.  With the error corrected, a conviction should
    be entered here and the case remitted to the trial judge for sentencing.

[44]

For
    the respondent, Mr. Miller is contrary-minded.  He acknowledges that the Attorney General has a right of appeal under s.
    813(b)(i) on grounds that involve questions of fact or of mixed fact and law.  However, to succeed on grounds involving
    questions of fact, Mr. Miller submits, the Attorney General must demonstrate
    that the verdict was unreasonable or was unsupported by the evidence.  But, absent a shift in the onus of proof, an
    acquittal cannot be unreasonable or unsupported by the evidence because of the
    enduring effect of the presumption of innocence.

[45]

Mr.
    Miller further submits that even if a summary conviction appeal court can quash
    an acquittal as a result of a factual error, whether an error in making a
    finding of fact or in failing to make a finding of fact, it cannot enter a
    conviction.  A conviction can only be
    entered where
all
the required
    findings have been made and, by definition, they are absent in such cases.

[46]

As
    a final alternative, Mr. Miller says that even if an appeal court has the authority
    to enter a conviction on an appeal based on an issue of fact, the authority is
    discretionary and should only be exercised in the clearest of cases of which
    this is not one.  He submits that the
    appeal should be dismissed.

The Governing Principles

[47]

Determination
    of this appeal engages consideration of several related issues.  The first has to do with the scope of the
    right of the Attorney General under s. 813(b)(i) of the
Criminal Code
to appeal a dismissal of an information on grounds
    involving or limited to questions of fact. The second, relates to the remedies
    available to the summary conviction appeal court, and this court, on appeals by
    the Attorney General under s. 813(b)(i).  The third is concerned with the availability in the circumstances of the
    precise remedy sought  entry of a conviction.

Appeals
    by the Attorney General under s. 813(b)(i)

[48]

Section
    813(b)(i) gives the Attorney General a right of appeal to the appeal court
    from an order dismissing an information in summary conviction proceedings.

[49]

Unlike
    other provisions conferring appellate rights, in both indictable and summary
    conviction proceedings, s. 813(b)(i) neither
specifies
the grounds upon which the appeal may be taken, nor
limits
those grounds.  Compare, for example, ss. 675(1)(a),
    676(1)(a) and 830(1) of the
Criminal Code
.  In other words, s. 813(b)(i) does not, by its
    terms, restrict the grounds upon which appeals may be taken under its auspices,
    or distinguish among them, as for example by requiring that leave to appeal be
    granted for some grounds, but not others.

[50]

The
    unqualified language that appears in s. 813(b)(i) compels the conclusion that
    an appeal by the Attorney General from dismissal of an information in summary
    conviction proceedings may be based on grounds of fact, mixed fact and law or
    law alone.  The authorities confirm that
    the Attorney General has a right of appeal under s. 813(b)(i) on grounds
    involving questions of fact alone:
R. v.
    Century 21 Ramos Realty Inc. and Ramos
(1987), 58 O.R. (2d) 737 (C.A.), at
    p. 768-769;
R. v. Multitech Warehouse (Manitoba)
    Direct Inc.
(1995), 102 Man. R. (2d) 141 (C.A.), at p. 149;
R. v. Gilles and Ash
(1990), 81 Nfld.
    & P.E.I.  R.1 (Nfld. C.A.), at para.
    51; and
R. v. Medicine Hat Greenhouses
    Ltd.

and German
(1981), 26 A.R. 617
    (C.A.), at para. 30.

[51]

No
    controversy exists about the right of the Attorney General to appeal under
    s. 813(b)(i) on grounds that involve a question of law alone, or on
    grounds that involve questions of mixed law and fact.  No closed list exists of what constitutes a
    question of law alone, but it is reasonable to conclude that questions of law
    alone take in, but are not confined to, issues involving the admissibility of
    evidence.

Appellate
    Authority under s. 822(1)

[52]

Rights
    of appeal are inextricably linked to appellate remedies.  See, for example, ss. 686(1)(a) and 686(1)(b)(iii)
    of the
Criminal Code
.  Sometimes, however, gaps exist and no
    specific remedies are provided.  For
    example, s. 686 contains no remedies for successful appeals by the Attorney
    General under either s. 676(1)(b) or s. 676(1)(c) of the
Criminal Code
.

[53]

Section
    822(1) defines the authority of the summary conviction appeal court on appeals
    under s. 813.  The mechanism used for
    this purpose in s. 822(1) is an incorporation by reference of the powers of the
    court of appeal on indictable appeals.  The incorporated provisions include s. 686, except s. 686(5).

[54]

The
    only remedial provision in s. 686 directly applicable to appeals from acquittal
    is s. 686(4).  Where the appeal from
    acquittal is successful, s. 686(4) authorizes the court of appeal to make
    either of two consequential orders: a new trial or, in some instances, entry of
    a conviction.

[55]

Inclusion
    of the qualifier, but for the error in law, in s. 686(4)(b)(ii) serves as a
    reminder that appeals by the Attorney General from acquittals in indictable
    proceedings are limited by s. 676(1)(a) to any ground of appeal that involves
    a question of law alone.

[56]

The
    referential incorporation of s. 686(4) by s. 822(1) yields less than a perfect
    match.  To be more specific, the
    qualifier, but for the error in law, in s. 686(4) seems markedly unsuited to
    the disposition of appeals that are not restricted to questions of law alone.

[57]

The
    referential incorporation of s. 686(4) by s. 822(1) is subject to the ubiquitous
    and inscrutable qualifier with such modifications as the circumstances
    require that tags along at the end of the subsection.  The current qualifier replaces the former
    favourite,
mutatis mutandis
.

[58]

In
R. v. Antonelli
(1977), 38 C.C.C. (2d)
    206, the British Columbia Court of Appeal considered the meaning to be
    attributed to the [then] qualifier
mutatis
    mutandis
 in the predecessor to s. 822(1).  There, as here, the summary conviction appeal had been argued on a
    ground of fact.  The summary conviction
    appeal judge entered a conviction.  On
    further appeal to the British Columbia Court of Appeal, the appellant argued
    that the referential incorporation of s. 613(4), which is now s. 686(4),
    limited the Attorney Generals right of appeal in summary conviction
    proceedings under what is now s. 813(b)(i) to questions of law alone.  The British Columbia Court of Appeal
    disagreed.  Farris C.J.B.C. concluded at
    pp. 211-212:

The
    incorporating section, s. 755(1) [now s. 822(1)], qualifies its absolute
    incorporation with the words
mutatis
    mutandis
.  They mean, of course,
    with the necessary changes in points of detail (see Jowitts Dictionary of
    English Law, 2
nd
, ed. (1977)).  It seems to me that a necessary change which must be made in s-s. (4)
    when it is applied to summary conviction appeals is the striking out of the
    words but for the error in law.  Those
    words are a necessary part of the section as it applies to appeals in
    proceedings by way of indictment because of the application of s. 605(1)(a)
    restricting the Crown to appeals on questions of law alone.  However, as has already been pointed out, s.
    605(1)(a) does not apply to appeals in summary conviction matters and the words
    but for the error in law are thus irrelevant in that context.

[59]

In
Ramos
, Martin J.A. was inclined to
    agree with the reasoning of the British Columbia Court of Appeal in
R. v. Antonelli
, but found it
    unnecessary to express a final opinion on the issue since the trial court in
Ramos
had also made errors of law:
Ramos
at p. 771.

[60]

Some
    courts of appeal, which have acknowledged the Attorney Generals right of
    appeal under s. 813(b)(i) on grounds involving questions of fact, have held
    that to succeed on appeal the Attorney General must demonstrate that the
    acquittal was unreasonable:
R. v. Gross
(2001), 160 Man. R. (2d) 111
    (C.A.) at para. 16;
Multitech
at p.
    149;
R. v. Hewlin
(1999), 174 N.S.R.
    (2d) 93 (C.A.), at paras. 14-16.  It may
    be open to doubt, however, whether an acquittal based on a reasonable doubt can
    be unreasonable:
Hewlin
at para. 15;
R. v. Schuldt
, [1985] 2 S.C.R. 592, at
    p. 610;
R. v. Biniaris
, [2000] 1
    S.C.R. 381, at paras. 32-33.

Entry
    of Convictions on Appeals from Acquittal

[61]

Section
    686(4)(b)(ii) authorizes a court of appeal in indictable appeals, thus a
    summary conviction  appeal court, to
    enter a verdict of guilty on an appeal from acquittal.  The court is entitled to enter a finding of
    guilty of the offence of which the court concludes the respondent should have
    been found guilty, but for the error of law committed by the trial judge.  The sub-paragraph requires that there be a
    nexus between the error of law and the verdict of acquittal.  There must be a reasonable degree of
    certainty that the verdict would have been different without the error, and
    that the verdict would have been a finding of guilt:
R. v.
    Audet
, [1996] 2 S.C.R. 171, at para. 32.  Apart from the error, all the findings of fact necessary to support a
    finding of guilt must have been made, explicitly or by necessary implication,
    or not be in dispute:
R. v. Cassidy
,
    [1989] 2 S.C.R. 345, at pp. 354-355;
Audet
at para. 31.

The Principles Applied

[62]

The
    application of the governing principles to the error made by the trial judge
    satisfies me that this is a case in which the appeal should be allowed, the
    order remitting the case to the trial judge set aside, the order setting aside
    the dismissal of the charge contained in the information affirmed and a
    conviction entered.  My reasons for this
    disposition follow.

[63]

The
    summary conviction appeal judge characterized the trial judges error as a
    palpable error of fact that led to an unreasonable verdict.  I agree with the summary conviction appeal
    judge that the trial judge misapprehended the evidence of Prov. Cst. Keller.  I agree that the error was palpable.  But I would not characterize the impact or
    effect of the error in the same way as did the summary conviction appeal judge.

[64]

In
    my view, a more apt characterization of the nature of the trial judges error
    is that he erred in law in failing to apply the presumption of identity to the
    uncontroverted evidence of Prov. Cst. Keller.  His misapprehension of her evidence led the trial judge to conclude that
    the condition precedent to the operation of the presumption contained in
    s. 258(1)(c)(iii) had not been satisfied.  The evidence of Prov. Cst. Keller satisfied this requirement.  She was not cross-examined on this
    issue.  The presumption of identity was
    engaged and, the blood-alcohol concentration was established as exceeding 80
    mgs of alcohol in 100 mls of blood.

[65]

The
    trial judge found all the other essential elements of the offence charged had
    been established beyond a reasonable doubt.  But for his error in misapprehending the evidence of Prov. Cst. Keller,
    which led directly to his failure to apply the presumption of identity on which
    the prosecutor relied to prove the prohibited blood-alcohol concentration, the
    trial judges verdict would not have been the same.  Instead of a dismissal of the charge
    contained in the information, the trial judge would have entered a finding of
    guilt.

CONCLUSION

[66]

Section
    839(2) incorporates the provisions of ss. 673-689 of the
Criminal Code
in summary conviction appeals to this court under s.
    839(1)(a), with such modification as the circumstances require.  The underlying error at trial was an error of
    law, a failure to apply an applicable statutory presumption.  But for that error, the verdict would have
    been different.  As indicated above, I
    would enter that verdict here.

[67]

For
    these reasons, I would grant leave to appeal and allow the appeal to the extent
    of setting aside the order of the summary conviction appeal judge remitting the
    case to the trial judge, and, in its place, enter a verdict of guilty and remit
    the case to the trial judge for imposition of a fit sentence.

RELEASED:  March 24,
    2011 DW

David
    Watt J.A.

I
    agree Robert A. Blair J.A.

I
    agree J. MacFarland J.A.


CITATION: R. v. Lights, 2011
      ONCA 163

DATE:  20110301

DOCKET: C50539

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Simmons and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Lights

Appellant

Daniel A. Stein, for the appellant

Grace Choi, for the respondent

Heard:  February 28, 2011

On appeal from the sentence imposed by Justice G. Trotter of
          the Ontario Court of Justice dated July 6, 2007.

APPEAL BOOK ENDORSEMENT

[1]

We have carefully reviewed the trial judges reasons.  We see no error
    in the trial judges decision to sentence the appellant as an adult, nor his
    decision to impose a sentence of eight years less credit for time served to be
    served in a youth facility.

[2]

The appeal is dismissed.


CITATION:
R. v. Rivera, 2011
          ONCA 225

DATE: 20110323

DOCKET: C50432

COURT OF APPEAL FOR ONTARIO

Feldman, Lang and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Irma Rivera

Applicant/Appellant

Marie Henein and Steven Skurka, for the appellant

David Finley, for the respondent

Heard: September 20, 2010

On appeal from the judgment of
          Summary Conviction Appeal Judge J.M. Fragomeni of the Superior Court of
          Justice dated April 9, 2009, dismissing the appeal from the conviction
          entered by Justice N. Kastner of the Ontario Court of Justice dated February
          11, 2008.

H.S. LaForme J.A.:

INTRODUCTION

[1]

Section 254(2)
of the
Criminal Code
,
    R.S.C. 1985, c. C-46 provides the legal authority for the police to demand that
    a driver provide a breath sample through an approved screening device, if the
    officer has reasonable grounds to suspect that the person operating the motor
    vehicle has alcohol in their system.
[1]

[2]

Typically, the breath sample is obtained
    through the use of a roadside screening device, which the person blows into.
    Section 254(5) makes it a criminal offence to either fail or refuse
to
    comply with a demand without a reasonable excuse for not providing the
    sample.
[2]

[3]

The appellant, Irma Rivera, was pulled over by a police officer who was
    conducting R.I.D.E. checks of motorists.  The officer formed the suspicion that
    she had consumed alcohol and could be impaired.  He demanded a roadside sample
    of the appellants breath. The appellant made 21 attempts to provide a sample.
    While attempting to provide a sample, she made various statements to the
    officer.

[4]

The police officer concluded that the appellant was not genuinely trying
    to provide a sample and charged her with
refusal
    to comply with a demand for a breath sample without reasonable excuse under s.
    254(5) of the
Criminal Code
.  After a trial, she was convicted as
    charged.

[5]

While the appellant advances five
    discrete grounds of appeal in this court, two are of particular interest.
    First, Ms. Rivera contends that the trial judge relied on statements made by
    her before the right to counsel was provided to draw adverse inferences
    regarding her credibility.  Second, Ms. Rivera argues that the trial judge
    failed to consider her s. 7
Charter
argument.

BACKGROUND

[6]

On the first day of trial, defence counsel requested an
    adjournment for the purpose of following up on medical reports that indicated
    the appellant might have a defence of reasonable excuse to the charge, based on
    an alleged lack of capacity to blow by reason of a panic attack.  The Crown did
    not oppose the adjournment.  Counsel agreed that Constable Tai, the arresting
    officer who was available in court that day, would testify and that, following his
    testimony, the trial would be adjourned to accommodate preparation of and the
    Crowns response to the proposed defence.

[7]

In chief, Constable Tai testified that, about 2:02 a.m. on
    December 7, 2005, he observed a vehicle driven by the appellant exiting a
    sports bar.  Constable Tai, in the course of conducting the R.I.D.E. program,
    followed the appellant as she turned into a private drive, and drove through
    the parking lot of a nearby business.  Constable Tai stopped her car in the
    parking lot.

[8]

Following the stop, Constable Tai approached
    the appellant and detected an odour of alcohol on her breath.  When the
    appellant stepped out of her vehicle, Constable Tai observed that she was
    unsteady on her feet.  He formed the suspicion that the appellant could have
    been impaired by alcohol.  Constable Tai made a demand of the appellant to
    provide a breath sample into an improved screening device.

[9]

At this point in the evidence,
    defence counsel indicated he would not contest the presence of reasonable
    grounds for the officer to make the demand.
In addition, the defence
    did not challenge the procedure followed in administering the breath test nor
    suggest that the screening device was faulty or otherwise not in proper working
    order.

[10]

After the defence concession, the
    Crown examined Constable Tai concerning what he asked the appellant to do and
    her responses.  Constable Tai testified that the appellant responded on two
    occasions that she had consumed three glasses of wine.  Later, she said: I
    only had two glasses of wine and, later still, claimed: I only had one
    beer.

[11]

Constable Tai also explained the
    process of the appellants attempts to respond to his instructions on how to furnish
    a breath sample. He said that, after nine attempts, the appellant said, I work
    for you. I work in the office. After 10 attempts, Constable Tai told the
    appellant that he could charge her criminally if she failed to provide a
    suitable sample.  She responded by saying: I work for the O.P.P.  Ill lose my
    job, dont do this to me.  I only had one beer.  I was just taking myself home.
    After 15 attempts, she said, Why are you doing this to me?  There are
    criminals out there.

[12]

After her 18th unsuccessful
    attempt, Constable Tai arrested the appellant for failing to provide a proper
    breath sample.  At that point, she stated: Give me another chance.  Dont do
    this to me.  I dont want to lose my job.  Why are you doing this to me?  In
    response to her request for another chance, Constable Tai again demonstrated
    how to give a proper breath sample and provided the appellant three more
    opportunities to furnish a breath sample.  However, the appellants renewed
    attempts to provide a sample again failed.

[13]

Constable Tai testified that,
    between about 2:04 a.m., when the breath demand was made, and approximately
    2:34 a.m., the appellant made a total of 21 attempts to provide a breath
    sample. Over that period, and despite repeated instructions from Constable Tai
    and demonstrations by him on how to breathe into the screening device, no
    readings resulted from the appellant blowing into the machine. At 2:40 a.m.,
    Constable Tai placed the appellant under arrest and informed her of her right
    to counsel.

[14]

In chief, Constable Tai testified
    that he did not specifically ask the appellant why she was not providing a
    proper sample. He also testified that, at no point during their interactions, did
    the appellant suggest that she was ill or experiencing any medical
    difficulties.  Nor did she offer any other explanation as to why she could not
    provide a breath sample.  While he described the appellant as being initially
    co-operative, he  testified that she gradually became unco-operative and
    verbally combative, and called him racial names.

[15]

In cross-examination, Constable
    Tai said that the appellant was fidgeting and moving around a lot in the back
    seat of the police cruiser.  He stated that she was unfocused and that he had
    difficulty getting her to understand what was taking place. He said that he was
    not convinced the appellant was faking for the first 10 attempts, but he
    continued in attempting to administer the test beyond the point of forming the
    opinion that she was wilfully failing to provide a proper sample.  He
    acknowledged that it was possible that the appellants breathing was quick, but
    he did not recall her taking shorter than normal breaths or exhibiting shallow
    breathing.

[16]

On re-examination, Constable Tai
    suggested that the appellants behaviour was indicative of not physically
    wanting to be in the back of his cruiser.  He also stated that the only short
    breaths she took were her exhales into the screening device.

[17]

When the trial resumed almost one
    year later, the appellant testified in her own defence.  She said that she
    experienced breathing problems on entering the police cruiser and that pain in
    her chest prevented her from blowing properly into the screening device.  She
    claimed that she had experienced a panic attack and that she was concerned that
    she might faint or have a heart attack.  She stated that the attack commenced
    when she entered the police cruiser and continued until her arrest about 30
    minutes later.

[18]

In cross-examination, the
    appellant claimed that during this 30-minute period, she experienced several
    symptoms of a panic attack, including chest pain, an inability to control her
    breathing and to think clearly, fear that she might faint or have a heart
    attack, shaking, tingling in her arms, perspiration, and a tendency to say
    silly things.  She maintained that it would be obvious to an observer that
    something was wrong with her if she was having a panic attack.

[19]

The appellant also indicated that
    she became impatient, wanted to leave, and did not want to deal with the
    situation.  She acknowledged that, contrary to her statements to Constable Tai,
    she did not work directly for the O.P.P., but stated that the company she works
    for makes devices for the O.P.P. and Peel Police.

[20]

The appellant also testified that
    she was frustrated she could not provide the sample, that she could not think,
    and that she did not tell the officer she was having pain or could not
    breathe.  She described her mind as black and white.

[21]

The defence called expert medical
    evidence regarding the symptoms of anxiety disorder, including panic attacks.
    Based on their observations of her in 2006, Dr. Roldan, a psychiatrist, and Dr.
    Morrell-Bellai, a clinical psychologist, both diagnosed the appellant as
    suffering from panic disorder.  The appellants statements were given a place
    of prominence in the Crowns cross-examination of the experts.  Crown counsel specifically
    cross-examined each expert about the significance of the appellants statements
    to the officer, and inquired whether lying was a symptom or result of a panic
    attack.

The Trial Judges Decision

[22]

After reviewing the facts, the trial judge accepted that extreme
    anxiety, as well as panic could explain a failure to provide a breath sample
    and provide a defence to the charge under s. 254(5) of the
Criminal Code
.
    She also accepted the evidence of Constable Tai and the accuracy of the
    statements he attributed to the appellant.

[23]

The trial judge found that the
    appellant rationally and intentionally told an untruth to the officer when
    she said that she worked in the policing field.  She also found that the
    appellant subjectively believed that this untruth may advantage her in some
    way.  The trial judge rejected the appellants evidence that she did not
    remember telling the officer that she worked for the O.P.P.

[24]

The trial judge noted that the
    appellant was inconsistent in her statements to the officer about the amount of
    alcohol she had consumed.  She stated: The lies the appellant told the officer
    at the roadside clearly undermine her credibility, and undermine the portion of
    expert opinion evidence based on her self-reporting [to the expert
    witnesses].

[25]

The trial judge accepted Constable
    Tais evidence that there were no outward symptoms observable of physical
    distress during his dealings with the appellant, nor did she complain of any
    medical problems during these dealings.  As stated by the trial judge,
    Constable Tai did not notice any shortness of breath, or other signs of extreme
    anxiety ... [but] only saw indications of nervousness, and later hostility.

[26]

The trial judge observed that the
    appellants statements to Constable Tai reflected rational thought that
    belie[d] a severe panic attack.  Further, in the trial judges opinion, the
    appellant was slightly inconsistent in relating her symptoms and the
    medications she was taking to Drs. Roldan and Morrell-Bellai.  She also found
    that the appellant tried to avoid the police cruiser by taking a detour through
    a parking lot, which bespeaks her subjective assessment that perhaps she had
    drunk a little too much.

[27]

In the end, the trial judge
    specifically rejected the appellants evidence and concluded that it did not
    raise a reasonable doubt.

[28]

The trial judge went on to consider
    if the expert evidence, in combination with Constable Tais observation that the
    appellant was nervous at the roadside, raised a reasonable doubt.  She noted
    that both experts could not be certain that the appellant was experiencing a
    panic attack on the night in question, although Dr. Roldan said it was most
    likely and Dr. Morrell-Bellai felt that was the case.

[29]

However, the trial judge was of
    the view that Dr. Morrell-Bellai appeared partial, had offered opinion
    evidence beyond the scope of her admitted experience, and that her view that
    any inconsistency in the appellants statements to the officer may have been a
    language issue or a reflection of her desperation to get out of the situation
    was not supported by psychological theory.

[30]

The trial judge also noted that,
    while Dr. Roldan testified that if the appellant were experiencing extreme
    anxiety or a panic attack she would be unable to control her breathing to the
    extent necessary to expel an adequate breath sample, the officer did not notice
    any shortness of breath, or other signs of extreme anxiety.  The trial judge
    further stated that the appellant never showed any overt signs of an anxiety
    or panic attack, nor did she make any complaint to the officer.

[31]

In the trial judges view, the
    totality of the evidence did not raise a reasonable doubt.  Rather, the
    appellants failure to comply with the demand for a breath sample was wilful,
    in an attempt to avoid the consequences associated with driving with an
    excessive blood alcohol concentration.  She found the appellant guilty of the
    offence charged.

The Summary Conviction Appeal

[32]

The appeal court judge observed, at para. 54, that the standard of
    review on a summary conviction appeal is whether, based upon the evidence, the
    decision made by a trial judge is a finding that could have reasonably been
    reached.  He went on to say that a court on appeal should only allow an appeal
    of a decision if:

(a)

it cannot be supported by the evidence; or

(b)

it is clearly wrong in law; or

(c)

it is clearly unreasonable; or

(d)

there was a miscarriage of justice.

[33]

The appeal court judge was not persuaded that the trial judge had
    committed any reversible error, or that she had misapprehended the evidence.
    He did not give effect to the appellants claim that her right to silence under
    s. 7 of the
Charter of Rights and Freedoms
was violated. In fact, he
    failed to address her objection to the trial judges use of her silence at the
    roadside regarding a panic attack as a basis for rejecting her evidence of
    reasonable excuse.

Leave to Appeal

[34]

The appellant sought a stay of her driving prohibition in this
    court and at the same time
sought leave to appeal the decision
    of the summary conviction appeal judge.  The grounds for seeking leave to
    appeal were
that the summary conviction appeal court judge erred in five
    respects, namely
:

(i)

by applying the standard of review for unreasonable
    verdicts to the conviction appeal;

(ii)
      by failing to consider her argument that the trial judge erred by relying on
    the appellants silence at the roadside on the issue of her medical condition
    to ground adverse credibility findings against the appellant, contrary to her
    right to silence under s. 7 of the
Charter of Rights and Freedoms
;
[3]

(iii)
    by failing to address whether the trial judge misdirected herself concerning
    the standard of proof applicable to the defence expert evidence at trial;

(iv)
      by failing to provide adequate reasons for rejecting the appellants claim
    that the trial judge misapprehended the evidence and by conflating the tests
    for unreasonable verdict and misapprehension of evidence; and

(v)
       by improperly relying on certain statements that the appellant made to the
    arresting police officer to undermine her credibility at trial.

[35]

The fifth ground was raised for the first time on the appellants motion
    for leave to appeal, without objection by the Crown.  The grounds advanced on
    the leave motion are the same grounds that are advanced on this appeal.  These
    grounds are the subject of a
preliminary matter raised by the
    Crown that is necessary to address
prior to
considering
    the merits of the appeal.

[36]

The preliminary matter, the Crown argues, is that
    leave to appeal to this court is limited to the two specific grounds granted by
    the judge of this court who heard the leave motion.  The three remaining grounds,
    it is submitted, require further leave of this court on the standard mandated
    by this court in
R. v. R.R.
(2008), 90 O.R. (3d) 641.

The Leave to Appeal Decision

[37]

In granting the appellant leave to appeal, Cronk J.A. noted that
    there are two classes of cases where leave for a second appeal in summary
    conviction should be granted, as identified by Doherty J.A. in
R.R.
, at
    para. 32:  (i) where the merits of a proposed question of law are arguable and
    the proposed question of law has significance to the administration of justice
    beyond the four corners of the case; and, (ii) where there appears to be a
    clear error, even if it cannot be said that the error has significance to the
    administration of justice beyond the specific case.

[38]

Cronk J.A., at para. 32 of her
    reasons, identified the fifth ground of appeal as falling into the first
    category from
R.R
.  That is, the question of whether the appellants
    roadside statements uttered while detained during the roadside screening test
    but before being advised of her s. 10(b)
Charter
right
[4]
to counsel were admissible as to credibility is a question of law warranting
    consideration by this court in the interests of the administration of justice.

[39]

Cronk J.A. observed that there are
    arguably divergent decisions on this issue in the Superior Court of Justice, with
    two examples being
R. v. Morrison
, 2006 CanLII 12722 (Ont. S.C.) and
R.
    v. Bijelic
, 2008 CanLII 17564 (Ont. S.C.).  She held, at para. 33, that
    [t]he question of the permissible use of such roadside statements in a case,
    like this one, involving a failure to provide a breath sample implicates the
    administration of justice generally.

[40]

Cronk J.A. also determined that
    the second branch of
R.R.
was met with respect to how, if at all, the
    [summary conviction appeal court] judge came to grips with Ms. Riveras s. 7
Charter
claim.  She went on to note that she was not expressing any view on whether
    Ms. Riveras s. 7
Charter
right to silence was engaged in this case.
    Rather, simply put, based on the [summary conviction appeal court] judges
    reasons, I cannot be satisfied that the [summary conviction appeal court] judge
    addressed his mind to this issue.

[41]

Finally, at para. 38, Cronk J.A.
    completed her ruling with these comments:

I therefore conclude that leave to appeal must be
    granted in this case.  In light of this conclusion, it is unnecessary to
    consider the other arguments said by Ms. Rivera to justify the granting of
    leave to appeal.

Discussion

[42]

As I noted above, before
this court, the
    Crown contends that the appellant only received leave to appeal on the two
    issues discussed by Cronk J.A. and that we must be satisfied that the test for
    granting leave to appeal in
R.R.

is met with respect to the three remaining grounds.

[43]

It is a misreading of Cronk J.A.s
    reasons to suggest that she left it for this court to apply the
R.R.
test to the three remaining issues that were raised before her on the leave
    motion.  Rather, the clear intention of her decision was to grant the appellant
    leave to appeal on all the proposed grounds on the motion.

[44]

Cronk J.A. simply found it
    unnecessary to address the other grounds because of her view that the appellant
    had, at a minimum, raised two grounds of appeal that satisfied the test for
    granting leave.  Where leave to appeal is granted without restriction on the
    grounds of appeal raised on the leave motion, there is no need for this court
    to further consider the
R.R.
test on appeal.

ISSUES ON APPEAL

[45]

While the five grounds of appeal are the same as those considered on the
    motion for leave to appeal, I will restate them in the order advanced by the
    appellant:

(i)

Did the trial judge err by relying on statements the appellant
    made to the arresting police officer before receiving the right to counsel to
    undermine her credibility at trial?

(ii)

Did the summary conviction appeal court judge err by failing to
    consider the appellants argument that the trial judge erred by relying on the
    appellants silence at the roadside on the issue of her medical condition to
    ground adverse credibility findings against her, contrary to her right to
    silence under s. 7 of the
Charter
?

(iii)

Did the summary conviction appeal court judge err by applying the
    standard of review for unreasonable verdicts to the conviction appeal?

(iv)

Did the summary conviction appeal court judge err by failing to
    address whether the trial judge misdirected herself concerning the standard of
    proof applicable to the defence expert evidence at trial?

(v)

Did the summary conviction appeal court judge err by failing to
    provide adequate reasons for rejecting the appellants claim that the trial
    judge misapprehended the evidence and by conflating the tests for unreasonable
    verdict and misapprehension of evidence?

[46]

As I explain below, I would allow the appeal for
    two reasons.  First, I find that the trial judge erred
by improperly
    relying on certain statements that the appellant made to the arresting police
    officer to undermine her credibility at trial.
Although this
    issue was not raised on the summary conviction appeal, no objection was raised
    to it being a ground of appeal.

[47]

Second, I hold that the summary
    conviction appeal court judge
erred by failing to properly consider the
    appellants argument that the trial judge erred by relying on her silence at
    the roadside about experiencing a panic attack, in violation of her right to
    silence under s. 7 of the
Charter
.  The trial judges repeated reliance
    on her silence on the issue of the panic attack was not a proper
    consideration on the issue of her credibility.

ANALYSIS

Issue One:
Did the trial judge err by relying on statements made by the
    appellant to the arresting police officer before receiving the right to counsel
    to undermine her credibility at trial?

[48]

The appellant submits that the trial judge erred in relying on
    her roadside statements to Constable Tai for purposes of making adverse
    credibility findings against her in the context of a charge under s. 254(5) of
    the
Criminal Code
.  In advancing this submission, counsel relies on a
    line of authority from the Supreme Court of Canada and this court in
R. v.
    Orbanski
;
R. v. Elias
, [2005] 2 S.C.R. 3,
R. v. Milne
(1996),
    28 O.R. (3d) 577 (Ont. C.A.), leave to appeal refused, [1996] 3 S.C.R. xiii,
    and
R. v. Coutts
(1999), 45 O.R. (3d) 288 (Ont. C.A.).

[49]

According to the appellant, this
    line of cases establishes that evidence that is obtained while a motorist is
    detained at the roadside and before being informed of the s. 10(b) right to
    counsel is admissible only as a means of confirming or rejecting the officers
    suspicion that the motorist might be impaired or over the legal limit.  Such
    evidence, she asserts, may not be used at trial to incriminate an accused or to
    challenge his or her credibility because such use would render the trial
    unfair.

[50]

Counsel for the appellant
    acknowledges that an exception arises in respect of statements made by a
    detained motorist that constitute evidence of the
actus reus
of the
    offence:  see
R. v. Stapleton
(1982), 66 C.C.C. (2d) 231 (Ont. C.A.), at
    paras. 4-5 and
R. v. Hanneson
(1989), 49 C.C.C. (3d) 467 (Ont. C.A.), at
    pp. 471-73.  Statements of an accused that constitute the gravamen of the
    offence are admissible without the need for a
voir dire
to establish
    voluntariness.   I will speak to this in more detail below.

[51]

However, counsel takes the
    position that the roadside utterances at issue in this case were not evidence
    of the
actus reus
, nor did the Crown introduce them for this purpose,
    nor did the trial judge use them as such.  Rather, as the trial judge was urged
    to do by the trial Crown in closing submissions, the roadside statements were
    used to ground adverse credibility findings against the appellant and to reject
    her evidence.  Such use, counsel contends, was not permitted by the
Elias
/
Milne
/
Coutts
line of authority.

[52]

The Crown, on the other hand,
    contends that the
Elias
/
Milne
/
Coutts
line of authority has
    no application because the roadside statements in issue were evidence of the
actus
    reus
of the offence.  That is, they constituted evidence that the appellant
    was feigning an attempt to comply with the breath demand.

[53]

According to the Crown, the
    statements were thus admissible regardless of the fact that the appellant had
    not received her s. 10(b) right to counsel.  The Crown further submits that,
    because the statements were not elicited or conscripted through questioning by
    the arresting officer, but rather were uttered spontaneously by the appellant,
    it was open to the trial judge to use the statements in assessing her
    credibility.  The Crown points to
Hanneson
,
R. v. Richards
(2004), 70 O.R. (3d) 737 (Ont. C.A.), at paras. 41-45,
R. v. Ha
, 2010
    ONCA 433, and
Bijelic
, at paras. 31-36, in support of his position.

Discussion

[54]

No one takes issue with the fact that when the appellants car was
    pulled over by Constable Tai, she was detained and was not advised of her right
    to counsel within the meaning of the
Charter
.  This would
    ordinarily constitute a breach of her rights, including the right to counsel
    under s. 10(b) of the
Charter.
However, the law now recognizes the
constitutionality of traffic stops, like those in
    this case, to check drivers for sobriety, even where there are no objective
    grounds for the stop: see
Elias
, at paras. 52-60.

[55]

The Supreme Court of Canada
    has recognized that these stops constitute a reasonable limit on
Charter
rights because of the extreme danger represented by unlicensed or impaired
    drivers on the roads.  In particular,
Elias
holds that this
    reasonable limit on the s. 10(b) right extends to questioning by a police
    officer of a detained driver about his or her alcohol consumption as part of
    the investigation into the sobriety of the driver.

[56]

At para. 58 in
Elias
,
    Charron J. held that the limitation meets the proportionality test because
    evidence obtained as a result of the motorists participation without the
    right to counsel can only be used as an investigative tool to confirm or reject
    the officers suspicion that the driver might be impaired.  Further, in
    that same paragraph and citing with approval this courts decisions in
Milne
and
Coutts
, she held that such evidence cannot be used as direct
    evidence to incriminate the driver.

[57]

In
Milne
, Moldaver J.A.
    held at p. 590 that the results of roadside sobriety tests performed by an
    accused at the direction of a police officer prior to being informed of the
    right to counsel are not admissible at trial as evidence of impairment on the
    charge of impaired driving.   Such evidence may be used to justify the
    officers demand for a breath sample, but it would be unfair to allow the Crown
    to introduce such evidence at trial to prove impairment.  This is because the
    accused had not been informed of the right to counsel when the tests were
    performed.

[58]

In
Coutts
, the accused at
    trial sought to introduce evidence to the contrary within the meaning of s.
    258(1)(d.1) in the
Criminal Code
to challenge the accuracy of breathalyzer
    readings taken at the police station.  This evidence consisted of testimony
    regarding how much alcohol the accused actually consumed and the opinion of a
    toxicologist as to what his blood/alcohol ratio would have been based on the
    actual pattern of consumption.

[59]

The trial judge rejected the
    reliability of that evidence and in so doing, referred to the arresting
    officers evidence that the accused failed the roadside screening test.  The
    trial judge found that the evidence of the failed roadside test was
    inconsistent with the defence evidence concerning the amount of alcohol the
    accused claimed to have consumed.

[60]

This court agreed with the summary
    conviction appeal court judge that the evidence obtained at the roadside should
    not have been used by the trial judge to discredit the defence evidence to the
    contrary.  Moldaver J.A. explained, at p. 293, that his conclusion in
Milne

    that it was constitutionally permissible to require a detained motorist to
    participate in sobriety and roadside tests without being advised of his or her
    s. 10(b) rights

 hinged on the fact that such tests were not meant to
    provide the police with a means of gathering evidence that could later be used
    at trial to incriminate the motorist on a charge of impaired driving or driving
    over 80.  Rather, he went on to say:

[T]hey were to be used solely as a means of
    confirming or rejecting the officers suspicion that the detained motorist
    might be impaired or over the legal limit.  So long as the tests were confined
    to that purpose, it could not be said that the evidence resulting from them was
    obtained unfairly or in a manner which violated the motorists s. 10(b)
Charter
rights.

[61]

However, as Moldaver J.A. noted,
Milne
did not decide
    whether the Crown can use roadside test results to discredit evidence to the
    contrary adduced by an accused:
Coutts
,
    at p. 294.

[62]

In this regard, after canvassing
    case law from the Supreme Court of Canada on the distinction between
    conscriptive and non-conscriptive evidence, Moldaver J.A. was of the view that,
    although the administration of roadside testing has been found to be
    constitutionally permissible, roadside test results are admissible only for the
    purpose of establishing the grounds needed to justify a demand under s. 254 of
    the
Criminal Code
.   After reiterating the rationale for why roadside
    test results do not infringe a persons s. 10(b)
Charter
right, he added
    at p. 298:

In that sense, and that sense alone, fair trial
    considerations pose no constitutional impediment to the introduction of
    roadside test results for the purpose of establishing the grounds needed to
    justify a demand under s. 254 of the
Criminal Code
.

[63]

Thus, the use of roadside testing evidence for the purpose of
    impeaching evidence to the contrary would render the trial unfair because
    the motorist has been compelled, at the behest of the state, to provide
    evidence that would not have been obtained but for the motorists participation
    in its construction and the evidence is being tendered for a purpose beyond
    that contemplated by s. 254(2) of the
Code
 (at p. 298).

[64]

Milne,

Coutts
and
Elias
, however, do not
    confront the issue of the permissibility of using a motorists roadside
    statements for incrimination or impeachment purposes where the offence charged
    is failing to comply with a breath demand.  This issue was considered by Molloy
    J. in
Morrison
and
    Hill J. in
Bijelic
.

[65]

Before discussing these cases, I would first note that this court has
    upheld the constitutionality of s. 254(2) and (5) of the
Criminal Code
- the
    provisions that make it an offence to refuse or fail to provide a breath
    sample:
R. v. Thompson
(2001), 52 O.R. (3d) 779 (C.A.).
Thompson
also confirmed this courts earlier decisions in
Coutts
and
Milne
,
    and again pointed out that the results of a failed roadside test could not be
    admitted as evidence against the accused at trial.

The
Morrison
decision

[66]

The Crown in
Morrison
took the position that all
    statements uttered by an accused at the roadside are admissible in prosecutions
    for refusing or failing to provide roadside breath samples, in contrast with
    prosecutions for impaired driving or the offence of over 80.  The relevant
    facts in
Morrison
are similar to our case and are as follows.

[67]

The arresting officer testified
    that when he first pulled the accused over, he asked her if she had consumed
    any alcohol that night and she answered, Yes, earlier in Newmarket.  After
    the officers request to provide a breath sample, the accused made seven
    unsuccessful attempts to give a sample, following which the officer warned her
    that if she did not provide an adequate sample, she could be charged under the
Criminal
    Code
with failing to provide a breath sample.  He testified that, at that
    point, the accused responded: I have asthma.  I had my last drink at 10:45
    tonight in Newmarket at the bar I work at.  The appellants agent at trial,
    who was not a lawyer, conceded the voluntariness of these roadside statements.

[68]

At trial, the appellant introduced
    evidence to establish a reasonable excuse based on her asthmatic condition.  In
    the course of her testimony, she said that she consumed only one drink that
    evening at 10 p.m.  In cross-examination, she denied having told the officer
    that she had the drink at 10:45 and said she had told the officer it was
    between 10 and 10:30 p.m.  She explained that she referred to it as her last
    drink even though it was her only drink, because she meant it was the last thing
    she had to drink.

[69]

In finding that the accused was
    not a credible witness, the trial judge said, at para. 26:

It seemed peculiar to me that if someone just had
    one drink they would describe it as their last drink.  I would expect
    somebody to say, I only had one drink and it was at 10:45.  It made me wonder
    about her credibility on that point.

[70]

On her appeal from conviction, the appellant argued that the trial judge
    erred in taking the roadside statement about the 10:45 timing of her last
    drink into account when assessing her credibility. Molloy J. concluded that
    the statement was not admissible for purposes of undermining the appellants
    credibility.

[71]

In reaching this conclusion,
    Molloy J. pointed out that roadside statements made without the right to
    counsel are relevant and admissible to prove the reasonable basis of the
    officers demand for a breath sample, citing
Milne
and
Coutts
.
    Furthermore, she noted that statements that are part of the
actus reus
of an offence are always admissible:  see
Stapleton
.

[72]

However, Molloy J. concluded that
    the principles underlying this courts decisions in
Milne
and
Coutts
preclude the use of roadside utterances made without the right to counsel for
    purposes of impeaching an accuseds credibility.  In applying this distinction
    to the roadside utterances of the appellant in that case, Molloy J. held, at
    paras. 35-36:

Therefore, any statements made by Ms. Morrison as
    to the process of attempting to give the breath sample are admissible to
    demonstrate whether she was really trying or whether there was some valid basis
    for her not being able to comply.  However, her statements as to what she had
    to drink, and when, have no bearing on whether she properly complied with the
    demand for a breath sample.  They are relevant only to credibility.  If Ms.
    Morrison had taken the breathalyser test and then been charged with impaired
    driving, her statements at the roadside as to her drinking would not be
    admissible to attack her credibility:
R. v. Coutts
.  I see no
    principled basis for treating those statements differently in the situation
    before me than would be the case if Ms. Morrison had been charged with impaired
    driving.   Accordingly, in my view, using the roadside statements to undermine
    her credibility was an impermissible use of that evidence and a breach of her
Charter
rights.

In my view, both statements should be treated the
    same way.  Although the second utterance during the attempts to provide a
    breath sample was not in immediate response to a question from the officer, it
    was all part of the same transaction, while Ms. Morrison was still being
    detained, and in the course of the officers overall inquiry.  It was simply a
    carry-over of her earlier statement and was so closely connected to the first
    statement temporally and contextually that there is no rational basis for
    treating them differently:
R. v. Plaha
(2004), 188 C.C.C. (3d) 289
    (Ont. C.A.).

[73]

Thus, Molloy J. treated the second statement of the accused as having
    been made in response to the officers overall inquiry while the accused was
    detained, even though the statement was not in immediate response to a
    question from the officer.

The
Bijelic
decision

[74]

In
Bijelic
, Hill J. also considered the admissibility of
    roadside statements for purposes of assessing an accuseds credibility in the
    context of a charge of refusal to provide a breath sample, contrary to s.
    254(2).

[75]

The relevant facts of that case are as follows. The accused was
    involved in a motor vehicle accident.
The
    investigating officer noted the smell of alcohol and asked the accused if he
    had been drinking.  He replied that he had approximately two beers about an
    hour earlier.  The officer read an approved screening device demand, to which
    the accused commented to the officer that he had done a test before and knew
    what he was doing.

[76]

The officer testified that the
    accused blew four times, but did not do so for long enough to give a reading.
    After his second attempt, the officer warned the accused that if he was not
    blowing properly, he would be charged with refusing to provide a breath
    sample.  Prior to his fourth attempt, the officer noted that the accused
    remarked: I dont care, charge me, I dont care.  The officer then arrested
    him.

[77]

At trial, during the officers
    testimony in chief, defence counsel agreed that the officers evidence about
    the accused saying he had two beers was admissible to establish reasonable and
    probable grounds for making the breath demand.  The officer went on to testify
    about the accuseds statement that he had done a previous test in the past, as
    well as his remark I dont care, charge me, I dont care, without any
    argument from counsel about the admissibility of these utterances.

[78]

In convicting the accused, the
    trial judge stated that it was disconcerting that the accused did not provide
    legitimate breath samples when he had indicated that he had some experience in
    doing this before.  The trial judge concluded:

I find that you did not comply with the demand by
    providing a sample and that in fact there was a refusal when you told the
    Officer, after so many tests, that you did not care about providing a further
    sample and that it was okay for him to charge you.  So, I do not have a doubt,
    I do not accept your evidence and I find that the Crown has proven the case
    beyond a reasonable doubt.

[79]

On the appeal of his conviction, one of the appellants arguments was
    that the trial judge improperly used [his] roadside statements  while he was
    detained with his s. 10(b)
Charter
right suspended, to make essential
    adverse credibility findings. In rejecting this ground of appeal, Hill J.
    observed, at para. 26, that it was by no means clear that the trial judge
    actually used the appellants statements as to prior experience with
    breath-testing to assess his credibility.

[80]

As for the appellants statement,
    I dont care, charge me, Hill J. observed that this statement was evidence of
    the
actus reus
of the offence, quite apart from the evidence regarding
    the appellants unsuccessful attempts to provide a sample.
However, he
    went further and, at para. 27, expressed his view that the accuseds prior
    experience statement was admissible to assess credibility and the strength of
    the prosecution case.

[81]

Hill J. continued on to explain, at para.
    30, that where an accused is charged with refusing to comply, and the issue is
    whether his conduct amounted to faking or feigning an attempt to comply,
the
actus reus
of refusal, depends on the totality of the circumstances. Evidence
    of a refusal may arise from conduct of the detained motorist, his or her
    statements to the officer in the course of the ASD [Approved Screening Device] testing
    process, or from a combination of conduct and statements (citations omitted).

[82]

After noting the limitation placed by the
Elias
/
Coutts
/
Milne
line of authority on the permissible use of roadside evidence arising from
    compelled direct participation of a detained motorist, Hill J. expressed the
    opinion, at para. 32, that where a roadside statement of an accused is made
    voluntarily, without being elicited by the arresting officer, it is admissible
    for purposes of assessing guilt or innocence:

Here, unlike the situation where a police officer
    asks a detained motorist whether he or she has consumed alcohol, and if so,
    when and how much, the constable did not ask Mr. Bijelic whether he had been
    subjected to ASD testing on a prior occasion.   The appellant volunteered
    the statement of prior experience  it was not conscripted or elicited as
    that term is understood in the context of ss. 7 and 10(b) of the
Charter
:
R. v. Smith
,
[2008] O.J. No. 623
    (C.A.) at para.
19;
R. v. McKenzie
, (2002), 167 C.C.C.
    (3d) 530 (Ont. C.A.) at para.
4, 29, 35. There is no evidence of a
    ploy or manipulation of the appellant raising compulsion to inform the officer
    that he was familiar with a breath-testing device.  There was no legal
    compulsion to speak.   The appellant, for his own motives, chose to do
    so.  In these circumstances, the
Elias/Milne/Coutts
line of
    authority has no application.

[83]

He went on to conclude that the voluntariness rule is
    inapplicable where the statement of the accused forms part of the
actus reus
of the offence, citing this courts decision in
Hanneson
, at pp. 471-3.  (See
    also this courts decisions in
Richards
, at paras. 43-45 and
Ha
, at
    paras. 6-8.) According to Hill J., the prior experience statement related to
    the issue of guilt or innocence, because it was relevant to the appellants
    understanding of the constables directions and the genuineness of his efforts
    to comply:
Hanneson
, at para. 36.

[84]

Thus, it appears that Hill J.
    concluded that the roadside statements were admissible for two reasons.  First,
    the statements were admissible as the
actus reus
of the offence.
    Second, it was open to the trial judge to use the prior experience statement
    for purposes of assessing the accuseds credibility because it was not elicited
    by the police.

Applying the authorities to
    this case

[85]

As noted, the Crown contends that the appellants roadside
    statements in this case were properly admitted as evidence of the
actus reus
of the offence.  I do not accept this submission for three reasons.

[86]

First, the Crown did not rely on
    the statements as providing evidence of the
actus reus
of the offence,
    nor did the trial judge use this evidence as such in her reasons for conviction.
    Indeed, the trial judge does not indicate what evidence she was relying on in
    finding that the
actus reus
of the offence had been proven.  What is
    clear is that she in no way related the roadside statements to the proof of the
    commission of the offence.

[87]

Instead, the appellants roadside
    statements were relied on by the Crown and by the trial judge as a basis for
    making adverse credibility findings against the appellant and for rejecting the
    expert evidence, which was based on information the appellant had provided to
    the experts.  For example, in written submissions asking the court to reject the
    appellants evidence, the Crown stated: When put to Ms. Rivera in
    cross-examination as to why she told the officer that she worked for the O.P.P.,
    her response appeared untruthful and appeared to be fabricated after the fact
    to explain away her comments to Constable Tai.

[88]

The trial judge used the roadside
    statements to make adverse credibility findings against the appellant and to reject
    her evidence that she was having a panic attack.  At paras. 62-64 of her
    reasons, the trial judge held:

She also was inconsistent
    on the quantity and nature of the alcohol consumed when speaking to the
    officer, and at the trial.  She gave inconsistent statements about the amount
    of alcohol she had consumed.  Her answers varied between three (3) glasses of
    wine, two (2) glasses of wine, one (1) beer, and one-third of three 750 ml
    bottles of wine.

The lies Ms. Rivera told the officer at the
    roadside clearly undermines her credibility, and undermines the portion of
    expert opinion evidence based on her self-reporting.

The rational thought associated with these
    utterances also belies a severe panic attack.  She was able to put together
    telling the officer she worked with the police with a desired end result.

[89]

In sum, the trial judges reasons indicate that the appellants roadside
    statements were not treated as evidence proving the
actus reus
of the
    offence.

[90]

My second reason for rejecting the
    Crowns argument is that the appellants various statements are not of the type
    described in
Stapleton
,
Ha
,
Hanneson
,
Morrison
or
Bijelic
as being evidence of the
actus reus
.  The Crown submits that the
    statements provided evidence of the
actus reus
because they revealed the
    appellants attempts to dissuade the officer from continuing with his
    investigation by minimizing the amount she had to drink and by trying to elicit
    sympathy by suggesting that she was a fellow employee of the O.P.P. and would
    lose her job.

[91]

The Crowns proposed characterization
    of the relevance of the statements, I believe, stretches the concept of
actus
    reus
beyond its well-established meaning.
Actus reus
is simply the voluntary and wrongful act
    or omission that constitutes the physical components of a crime.  In the context
    of s.
254(5)   the criminal offence of
    either failing or refusing
to comply with
    a demand without reasonable excuse

Molloy J. in
Morrison
, at para. 35, described
    how roadside statements could provide evidence of the
actus reus
:

[A]ny
    statements made by Ms. Morrison as to the process of attempting to give the
    breath sample are admissible to demonstrate whether she was really trying or
    whether there was some valid basis for her not being able to comply.
    However, her statements as to what she had to drink, and when, have no bearing
    on whether she properly complied with the demand for a breath sample.

[92]

Clearly, if an accused made a
    roadside statement that related directly to the refusal, it would then be open
    to the Crown to lead that evidence as establishing the
actus reus
of the
    offence. The accuseds statement in
Bijelic,
I dont care, charge me,
    provides a good example of a statement that is properly admitted as evidence of
    the
actus reus
.

[93]

In contrast, by way of example, the
    appellants differing descriptions of the amount and type of alcohol she had to
    drink and her statements to the effect that she worked for the O.P.P., cannot
    accurately be characterized as evidence of the
actus reus
of the offence
    of refusal in the circumstances.  Her various statements about the amount she
    had to drink could not be taken as indicating that she was refusing or failing
    to give a breath sample.  This is also the case with her statements

I work for
    the O.P.P. Ill lose my job and,
Give me another chance.
Dont do
    this to me.  I dont want to lose my job.  Why are you doing this to me? (emphasis
    added). These statements cannot be said to constitute the gravamen or
    foundation of the offence of refusal or failure to blow, as contemplated by
    this court
i
n
Stapleton, Hanneson
and
Ha
.

[94]

In general, it will fall to the trial
    judge to determine on the facts of the case whether a particular roadside
    statement can properly be considered as evidence of the
actus reus
.  In
    this case, there was other evidence of the
actus reus
of the offence
    based on Constable Tais testimony. This included the appellants numerous
    unsuccessful attempts to provide a breath sample and that she did not appear to
    be experiencing breathing difficulties. The officers observations about the
    motorists conduct and demeanour while detained at the roadside were clearly
    admissible to prove the offence, as explained in
Elias
, at para. 58 and
Milne
,
    at p. 590.

[95]

My third reason for rejecting the admission of all the appellants roadside
    statements as evidence of th
e actus reus
is in connection with the
    Crowns suggestion that a court may treat all roadside utterances as evidence
    of the
actus reus
in a case of a feigned attempt to provide a breath
    sample. Such a suggestion runs afoul of the
Elias
/
Milne
/
Coutts
line of authority on the limited use to which such evidence may be put.

[96]

I acknowledge that this line of authority is directed at the use of
    roadside statements for purposes of proving the offences of over 80 or
    driving while impaired, rather than refusal or failure to provide a breath
    sample.  Nevertheless, I share Molloy J.s views in
Morrison
, at para.
    35:

If Ms. Morrison had taken the breathalyzer test and
    then been charged with impaired driving, her statements at the roadside as to
    her drinking would not be admissible to attack her credibility:
R. v.
    Coutts.
I see no principled basis for treating those statements
    differently in the situation before me than would be the case if Ms. Morrison
    had been charged with impaired driving.

[97]

The
Elias
/
Milne
/
Coutts
line of authority
    establish that it would be unfair to give broad incriminatory scope to evidence
    obtained from a motorist who is detained at a roadside stop and whose s. 10(b)
    rights are suspended.  As stated at p. 298 of
Coutts
:  The unfairness
    arises because the motorist has been compelled, at the behest of the state, to
    provide evidence that would not have been obtained but for the motorists
    participation in its construction and the evidence is being tendered for a
    purpose beyond that contemplated by s. 254(2) of the
Code
. See also
R.
    v. Smith
(1996), 28 O.R. (3d) 75 (Ont. C.A.), at p. 87.

[98]

Contained in the reasoning of these
    authorities is that the analysis is not limited to situations in which a breath
    sample was ultimately provided; rather, it is equally applicable to a case
    involving a failure to provide a breath sample, itself a criminal offence.
If the court were to treat roadside
    statements as evidence of the
actus reus
even if the statements did not
    indicate the act of refusal, the unfairness averted to in
Coutts
would
    re-surface.

The Need for a
Voir Dire

[99]

In oral argument, in response to a
    question from the panel, there was some suggestion that the trial judge ought
    to have conducted a
voir dire
before permitting the Crown to lead evidence
    of the appellants roadside statements from Constable Tai.  The need for a
voir
    dire
could arise in respect of two discrete issues: (i) in connection with
    those statements that are relied on by the Crown to constitute the
actus
    reus
; and (ii) whether the statements, though not evidence of the
actus
    reus
, were admissible for impeachment purposes.

[100]

The statements in issue were
    made by the appellant to a person in authority without the benefit of the s.
    10(b) right to counsel while she was detained.  At trial, defence counsel tepidly
    raised the
voir dire
issue during the Crowns cross-examination of the
    appellant on her statements to Constable Tai.  Defence counsel stated:  Im a
    little concerned  In the normal course of an impaired these are pre-right to
    counsel utterances.  The issue of credibility.  The trial judge asked:  Well,
    these are admissible without the necessity of a
voir dire
on a refuse
    case, are they not?  Counsel responded with [t]hank you.  The issue of the
    need for a
voir dire
was not pursued.

Statements constituting the
Actus Reus

[101]

Ordinarily, statements of an
    accused made to a person in authority are subject to the Crown establishing
    voluntariness, usually through a
voir dire
:
R. v. Erven
,
    [1979] 1 S.C.R. 926, at pp. 933-43.
However,
    i
n
Stapleton
, at p. 233,
this court, after citing the example of a case where the accused was charged
    with failing to or refusing to comply with a valid demand made to him by a
    police officer, held that the words of refusal constitute the
actus reus
of the offence charged.  Accordingly, the court held it was not necessary to
    establish on a
voir dire
the voluntariness of the accuseds statement.

[102]

In
Hanneson
, at pp. 471-77, this court reaffirmed that w
here
the
    statement of an accused forms part of the
actus reus
of the offence, the
    voluntariness rule is inapplicable
.  And, most recently, this court in
Ha
, at paras. 6-8, applied
Hanneson
,
    and held at para. 8 that
the rationale
    in
Hanneson
applies equally here where there was
a
s. 9 breach as well as breaches of s. 10 of the
Charter
.

[103]

Thus, where
the making of a statement constitutes the very
actus
    reu
s of the offence charged, a
voir dire
into voluntariness is not
    required.  However, where the Crown seeks to rely on roadside statements of an
    accused to the police that are made without the right to counsel as evidence of
    the
actus reus
, the trial judge may be called upon to decide whether the
    proffered statements are evidence of this element of the offence before
    admitting them at the Crowns behest.

Statements Tendered for
    Impeachment Purposes

[104]

Where the statements are not admissible
    as evidence of the
actus reus
, but the Crown proposes to use them for
    purposes of challenging the accuseds credibility, there is no need for a
voir
    dire
simply because such statements are inadmissible at the Crowns behest for
    that purpose. This is due to the trial fairness considerations explained in the
Elias
/
Milne
/
Coutts
line of authority described above.

[105]

It was made clear in
Coutts
that there is no distinction for constitutional purposes between evidence used
    to incriminate an accused and evidence used to impeach.  In that case, Moldaver
    J.A. observed that the Supreme Court of Canada in
R. v. Calder
, [1996] 1
    S.C.R. 660 held that there is no meaningful distinction for purposes of
    admitting unconstitutionally-obtained evidence under s. 24(2) of the
Charter
between evidence used to incriminate and evidence used to impeach an
    accuseds testimony on cross-examination.  As Sopinka J. said at para. 34:

The effect of destroying the credibility of an
    accused who takes the stand in his or her defence using evidence obtained from
    the mouth of the accused in breach of his or her
Charter
rights will
    usually have the same effect as use of the same evidence when adduced by the
    Crown in its case in chief for the purpose of incrimination.

[106]

Of course, there is no constitutional violation in police
    obtaining statements from  motorists without having been advised of their s.
    10(b) rights in the roadside stop context, but that is only because roadside
    stops have been found to be constitutionally permissible  under s. 1 of the
Charter
.
    Critical to the finding that roadside testing is not unconstitutional is the
    limited use to which evidence obtained during the roadside stop may be put, as
    explained in
Elias
, at para. 58:  the evidence obtained as a result of
    the motorists participation without the right to counsel can only be used as
    an investigative tool to confirm or reject the officers suspicion that the
    driver might be impaired.  It cannot be used as direct evidence to incriminate
    the driver.

[107]

In my view, the appellants roadside statements were not
    admissible as part of the Crowns case for incrimination or impeachment
    purposes. I agree with Molloy J.s conclusion in
Morrison
that roadside
    statements, whether made in direct response to an inquiry by an officer, or
    made in the context of the officers overall inquiry while the motorist is
    detained, are not admissible for purposes of attacking the accuseds
    credibility at a trial for failure or refusal to provide a breath sample.
T
he a
dmission of any roadside utterances as part
    of the Crowns case is forbidden other than on the basis of establishing
    grounds for the demand or the
actus reus
of the offence.

Issue Two:
Did the appeal court judge err by failing to consider the
    appellants s. 7
Charter
argument?

[108]

The trial
    judge made various references to the appellants silence regarding the reason
    for her failure to blow at paras. 11, 19, 66, and 75 of her reasons for
    decision.  They are summarized as follows:

Ms. Rivera did not indicate any illnesses or
    medical difficulties to the police officer, nor did she indicate any reason(s)
    why she could not provide a sample  Ms. Rivera did not tell the officer that
    she was having a panic attack at any time .  I further accept Constable Tais
    evidence that there were no outward symptoms observable of physical distress
    nor did Ms. Rivera complain of any medical problem throughout his dealings with
    her  She never showed any overt signs of anxiety or panic attack, nor did she
    make any complaint to the officer.

[109]

Before the summary conviction appeal court judge, the appellants
    counsel argued that the trial judge erred in her assessment of the appellants
    credibility, and in rejecting her testimony that she suffered a panic attack at
    the roadside, by relying on her failure to say anything to Constable Tai about
    her supposed panic attack.  The appellant contends that the trial judges
    repeated reliance on her silence on the issue of the panic attack was not a proper
    consideration on the issue of her credibility because of the right to silence
    enshrined by s. 7 of the
Charter
.

[110]

The Crown concedes that the appeal
    court judges reasons for dismissing this ground of appeal leave something to
    be desired.  He further acknowledges that [i]t is difficult to discern why
    this ground of appeal was rejected.  Indeed, it is impossible and this court
    is, therefore, entitled to intervene to address the merits of this ground of
    appeal.  The appeal court judges complete failure to address this ground of
    appeal constitutes a clear error in law.

[111]

The Crown submits that this ground
    of appeal should be dismissed on the basis that the right to silence
    jurisprudence on which the appellant relies is not applicable in this case.
    This, he says, is because the onus was on the appellant to establish a
    reasonable excuse for her failure to provide a sample.  According to the Crown,
    an accused ought to make timely disclosure of that excuse to permit the police
    to address the issue. The Crown cites
R. v. Ferron
(
1989), 49 C.C.C. (3d) 432 (B.C.C.A.), at
    pp. 441-42
and
R. v. Top
(1989), 95 A.R. 195 (Alta. C.A) for this
    proposition
.

[112]

Further, the Crown submits that,
    because the reasonable excuse is extraneous to the elements of the offence (see
Moser
(1992), 7 O.R. (3d) 737, at pp. 750 and 754), when the appellants
    silence is used in assessing the credibility of her reasonable excuse, it is
    not used to prove guilt and thus s. 7 of the
Charter
is not violated.  I
    disagree.

[113]

The authorities cited by the Crown
    do not stand for the principle the Crown asks this court to accept.  None of
    these authorities address whether it is open to the court to use the accuseds
    silence on the issue of a reasonable excuse at the time of arrest in rejecting
    the accuseds evidence at trial of a reasonable excuse.  In other words,
    because the appellant said nothing at the time of her arrest explaining her
    failure to blow, can that be a basis for disbelieving her trial evidence of a
    reasonable excuse?

[114]

In
R. v. Poirier
(2000),
    133 O.A.C. 352, this court explained, at para. 18, that the choice to invoke
    the right to silence is irrelevant to any issue at trial:

However, when it is the accused whose testimony is
    being impeached, an allegation that he or she did not speak out, or give an
    explanation of his or her conduct, at an early opportunity, conflicts with his
    or her right to remain silent.  As the authorities have decided, the Crown is
    precluded from making the allegation,
and no inference can be drawn that if
    the accused was innocent he or she would have asserted his or her innocence
    upon arrest.
[Emphasis added.]

[115]

This court recently affirmed these principles in
R. v. Rohde
(2009), 246 C.C.C. (3d) 18.  Rohde was charged with possession of an unlicensed
    firearm after a sawed-off shotgun was found under his bed in his condominium
    unit.  Rohde testified that the gun was not his and he did not know where it
    had come from. He also testified that an acquaintance had used his condo unit
    shortly before the gun was found.  The trial judge rejected Rohdes evidence
    and found that he was not a credible witness because he did not come forward
    earlier with his explanation that someone else had been in his condo unit.

[116]

Laskin J.A. for the court allowed the appeal and, at
    para. 18, held that [b]y linking her rejection of Mr. Rohdes evidence to his
    pre-trial silence, the trial judge committed a reversible error.  She violated
    his constitutional right not to say anything.

[117]

Similarly
    in
R. v. Palmer
, 2008 ONCA 797, this court concluded that the trial
    judge erred in using the appellants silence to reject her evidence.  The
    accused chose to speak to the police at the time of her arrest for possession
    of cocaine, but she did not give the police the explanation she would later
    advance at trial as to why the cocaine was in her possession.  This court held,
    at para. 9:

It was open to the trial judge to reject the
    appellants explanation given at trial because it was not believable and to use
    that finding in assessing the appellants overall credibility.  However, the
    trial judge went further and used the appellants silence as a basis for
    finding her incredible.  That he was not entitled to do.

[118]

And yet again in
R. v. G.L.
(2009), 250 O.A.C. 266, Blair
    J.A. for this court concluded, at paras. 37-39, that the appellant had a
    constitutional right to remain silent during any part of the police interview
    and this right was not extinguished simply because he chose to speak to the
    officer with respect to some matters and did not exercise his right to silence
    completely.

[119]

I agree with the appellants
    submission that the negative inferences drawn by the trial judge from her
    failure to advise Constable Tai that she was experiencing a panic attack
    violate the principles underlying the right to remain silent.  It is clear to
    me that the appellants silence on the issue of her panic attack at the
    roadside was a significant factor in the trial judges assessment of her
    credibility.

[120]

The trial judge, I find, committed
    reversible error by linking the rejection of the appellants evidence of
    reasonable excuse to her silence at the roadside about experiencing a panic
    attack.

[121]

Before concluding my
    analysis of this issue, I will address one final concern raised by the Crown.

[122]

The Crown, in its
    factum, placed some importance on the fact that the trial
Crown questioned the appellant about
    whether she had said anything to Constable Tai about difficulties she was
    having in providing a breath sample. Defence counsel did not object to these
    questions. In addition, in written submissions provided to the trial judge, the
    Crown relied on the fact that the appellant never alerted Constable Tai to her
    distress, again without any apparent objection by defence counsel.

[123]

I would not treat
    defence counsels failure to object as fatal in circumstances where the concern
    on appeal is the use made by the trial judge of the accuseds silence in
    arriving at her decision to convict. Moreover, this is not a case where there
    may have been some tactical advantage that could explain the absence of an
    objection by defence counsel.

CONCLUSION

[124]

I conclude that the trial judge erred
by
    improperly relying on certain statements that the appellant made to the
    arresting police officer to undermine her credibility at trial.

I also conclude that the appeal court judge erred by
    failing to properly consider the appellants argument regarding her right to
    silence under s. 7 of the
Charter
.  After examining the merits of this
    ground of appeal, it is my opinion that the trial judges repeated reliance on the
    appellants silence on the issue of the panic attack was not a proper
    consideration on the issue of credibility.

[125]

There is no need to conduct an analysis of the admissibility of
    evidence under s. 24(2) of the
Charter
. The roadside statements are
    inadmissible for impeachment purposes not because of a breach of s. 10(b) of
    the
Charter
, but rather because of the limited use to which such
    evidence may be put to ensure a fair trial as explained in
Elias/Milne/Coutts
.
    Thus, s. 24(2) is not engaged. Similarly, the s. 7 claim relates to the trial
    judges improper use of the appellants silence on the issue of the panic
    attack, rather than to unconstitutionally-obtained evidence, and so there is no
    need to assess admissibility under s. 24(2).

[126]

Because my conclusions on the first two grounds resolve the
    appeal, I find it unnecessary to address the three remaining grounds of appeal.

[127]

The appropriate remedy is that the conviction be set aside and a
    new trial ordered.

RELEASED:

MAR 23 2011                                                        H.S.
    LaForme J.A.

KF                                                                           I
    agree K. Feldman J.A.

I
    agree Susan Lang J.A.

[1]
The relevant provisions of s. 254(2) are:

(2) If a
    peace officer has reasonable grounds to suspect that a person has alcohol  in
    their body and  has, within the preceding three hours, operated a motor
    vehicle  the peace officer may, by demand, require the person :

(b) to
    provide forthwith a sample of breath that, in the peace officers 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.

[2]
Section 254(5) provides:

(5)
    Everyone commits an offence who, without reasonable excuse, fails or refuses to
    comply with a demand made under this section.

[3]
Section 7 of the
Charter
states:

Everyone
    has the right to life, liberty and security of the person and the right not to
    be deprived thereof except in accordance with the principles of fundamental
    justice.

[4]
Section 10(b) of the
Charter
states:

Everyone
    has the right on arrest or detention

(b) to retain and instruct counsel without delay and to be informed of
    that right; ...