Observations and conscriptive evidence

R. v. Brode, 2012 ONCA 140 considers the authority of border guards to investigate impaired driving offences.  In the course of the Court’s review the Court holds that mere observations of a peace officer do not amount to conscripted evidence:

[59]       The appellant was successful on appeal to this court on the basis that the evidence in issue was obtained from his compelled direct participation in the sobriety tests.  Moldaver J.A., speaking for the court, held, at pp. 133-134, that admitting the observations made as a result of the appellant’s compelled participation in the tests – designed to firm up mere suspicion of impairment – would render the trial unfair on the basis that the motorist had been conscripted against himself:

In view of my conclusion that the tests authorized by s. 48(1) of the HTA were not meant to provide the police with a means of gathering self-incriminatory evidence to be used against the motorist at trial, and my further view that s. 48(1) would not survive s. 1 Charter scrutiny if that were its purpose, I am satisfied that the admission at trial of the co-ordination test results to prove impairment on a charge of impaired driving would render the trial unfair.

The unfairness arises in part from the fact that the motorist has been conscripted against himself or herself when, at the behest of the police, he or she is required to undertake co-ordination tests designed to establish or disprove impairment. The use of that evidence, which could not have been obtained but for the participation of the motorist in its construction, would tend to render the trial process unfair. Moreover, the use of the test results to prove impairment at trial constitutes an impermissible broadening of the scope and purpose of the testing procedures contemplated by s. 48(1) of the HTA. Since the tests were not meant to provide the police with a means of gathering evidence to incriminate the motorist at trial, surely it would render the trial unfair if the state could use them for that purpose. [Emphasis added.]

[60]       However, Moldaver J.A. also clarified, at p. 132, that the prohibition on the use of conscripted evidence does not apply to general observations made by an officer in the course of his or her duties outside the scope of the compelled activity:

I wish to make it clear that this conclusion applies only to evidence obtained from compelled direct participation by the motorist in roadside tests authorized by s. 48(1) of the HTA, specifically designed to determine impairment or a blood-alcohol level exceeding 80 mg. I am not referring to observations the officer might make of the driver while carrying out other authorized duties. Thus, by way of example, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, blood-shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment....

This distinction accords with the principles outlined by Lamer J. (as he then was) in R. v. Ross (1989), 46 C.C.C. (3d) 129 at p. 140, [1989] 1 S.C.R. 3, 67 C.R. (3d) 209. In a case turning on identification, Lamer J. (as he then was) drew a distinction between physical evidence resulting from mere observation, and physical evidence "that could not have been obtained but for the participation of the accused in the construction of the evidence for the purposes of the trial", such as the line-up evidence in question.

[61]       This approach was affirmed by the Supreme Court of Canada in Orbanski, at paras. 58-49.

[62]       This court returned to the issue more recently in Quenneville:

 The line drawn in Milne as to the limitation on the use of evidence acquired at the roadside, is evidence obtained through the “compelled direct participation” in sobriety trials.  The observations made as [the detained driver] exited his vehicle, even in response to a direction from the officer, is not compelled direct participation in the roadside tests so as to attract the limitation on use. [Citations omitted.]

[63]       The appellant’s position can be expressed as follows: if a designated BSO asks a person to get out of the car with the intention of using his or her compliance as a sobriety test itself, the observations made cannot be used as proof of impairment. For support, the appellant relies on Hill J.’s reasons in Iannotta, at paras. 57-58:

In the ordinary case, a direction from a police officer to exit his or her car, in the context of a roadway stop, does not necessarily, or perhaps even probably, mean that the direction to the detainee was intended by the constable to use the very sequence of conduct of exiting and standing beside the vehicle as the sobriety test.

However, the facts of the present case are uniquely different given Const. Ruttan’s testimony, and entirely distinguishable from those in Quenneville. The trial court, accordingly, erred in using the evidence of the appellant’s unsteadiness on his feet as substantive evidence of impairment.

[64]       The foundation of the appellant’s argument is that, like in Iannotta, the record supports the finding that by requiring the appellant to get out of the car, the designated BSOs mandated him to take a ‘disguised sobriety test’. It follows, argues the appellant, that pursuant to the Milne line of authority, any evidence gathered in taking that step was conscriptive in nature and inadmissible to prove impairment.

[65]       I would not give effect to this argument as this case, on its facts, is fundamentally distinguishable from Ianotta.   

[66]       In Iannotta, there was clear evidence of conscriptive motive: the investigating officer testified that his request that the accused get out of his vehicle was intended as a sobriety test. 

[67]       The evidence upon which the appellant relies to establish the proposed ‘disguised sobriety test’ is the testimony of Rutherford, who, in cross-examination stated that “we [he and O’Hearn] proceeded to ask [the appellant] to step out of the vehicle and question him to gather indicators if there were going to be more indicators”, and “Officer Rohrer gave us his indicators and it was Officer O’Hearn and I who would’ve built more indicators on – upon asking [the appellant] to step out of the vehicle.”

[68]       In my view, this evidence does not support a finding that the officers required the appellant to get out of his car for the purpose of using his actions while exiting the car as a sobriety test. The evidence is more indicative of the officers’ requesting that the appellant get out of the car so that once he was outside they could question him and gather indicators of insobriety.