



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Roberts, 2018 ONCA 411

DATE: 20180501

DOCKET: C62213

Laskin, Miller and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kim Roberts

Appellant

Gregory Lafontaine, for the appellant

Michael Fawcett, for the respondent

Heard: December 21, 2017

On appeal from the convictions entered by Justice Antonio
    Skarica of the Superior Court of Justice, sitting with a jury, on January 27,
    2016, with
voir dire
reasons reported at 2015 ONSC 7974.

Paciocco J.A.:

OVERVIEW

[1]

Ms. Kim Roberts, a psychologist, was involved in a two-vehicle accident
    after leaving a restaurant where she had been drinking heavily. She turned into
    the path of an oncoming vehicle, causing the collision. The three occupants of
    the other car were injured, two of them more seriously.

[2]

As a result, Ms. Roberts was charged with several alcohol driving
    offences. Ultimately, she was convicted by a jury of two counts of impaired
    operation of a motor vehicle causing bodily harm. The jury also found her
    guilty of two counts of causing bodily harm while driving with more than the
    legal limit of alcohol in her blood, but those charges were conditionally stayed.

[3]

Ms. Roberts now appeals her conviction and the findings of guilt on the charges
    that were stayed. Her grounds of appeal relate to her unsuccessful
Charter

application, the jury charge on her bolus drinking defence,
[1]
and the unfair manner in which the prosecuting Crown (not Mr. Fawcett)
    conducted the case.

[4]

For the reasons that follow, I would dismiss Ms. Roberts appeal.

[5]

It is convenient to begin by setting out the background facts. I will
    then address the issues and introduce further facts that are material to those
    issues, as they are discussed.

THE BACKGROUND FACTS

[6]

Ms. Roberts had been visiting her gravely ill mother-in-law at a hospital
    in Hamilton. She was worried about the financial burden of caring for her
    mother-in-law. She was also under stress as she had difficult days coming up
    teaching a course on the investigation of offences against children at the
    Ontario Police College in Aylmer. She was about to head back to her home in
    Stratford, but decided to stop at a restaurant before the drive. It was
    approximately 9:00 p.m., and she was alone.

[7]

Ms. Roberts admitted at trial that she drank heavily at the restaurant.
    She acknowledged that, initially, she drank a large, 20-ounce beer and a one-ounce
    shot of scotch. She claimed that between 10:15 p.m. and 10:30 p.m., just before
    leaving, she had four more drinks: two large beers and two more shots of scotch.

[8]

Ms. Roberts testified that after leaving the restaurant she drove northbound
    from Highway 403 to Highway 6, on her way to Highway 401. After travelling for
    approximately 13 minutes, she thought better of continuing her drive and
    decided to pull over in a safe location so that she could make an appropriate
    plan. She passed a gas station and decided to turn back and stop there. She
    made a U-turn and then headed back, southbound, towards the gas station.

[9]

When she reached an intersection near the gas station, she pulled into the
    turning lane and waited at a green light for the northbound traffic to pass. According
    to her, several cars went by. She then turned left into the path of an oncoming
    car. She did not see the vehicle she collided with. She testified that it came
    out of nowhere.

[10]

Three
    young women were in that car, returning home from a concert. The driver, Ashley
    Vader, testified that as she approached the intersection on a green light she
    saw Ms. Roberts car sitting in the turning lane, but not signalling a turn. Ms.
    Vader nonetheless assumed that Ms. Roberts car was waiting for her to pass before
    making the turn. Ms. Vader proceeded into the intersection. Suddenly, Ms.
    Roberts vehicle turned into her path. Ms. Vader could not avoid the collision.

[11]

All
    three young women in Ms. Vaders vehicle were injured, two of them more
    seriously. Fortunately, none of the injuries was life threatening.

[12]

There
    is uncertainty as to the precise time of the collision. Garrett Black, who
    witnessed the accident, told police it occurred at approximately 10:45 p.m. One
    of the young women injured in the accident, Alyson Whyte, placed a 9-1-1 call
    at 10:51:21 p.m. Ms. Whyte testified she probably made the call less than a
    minute after the collision. Cst. Jamie Hart, the officer who ultimately
    arrested Ms. Roberts, testified that he was dispatched to the collision scene
    at approximately 11:01 p.m.

[13]

Cst.
    Hart testified that he arrived on scene at 11:10 p.m., in uniform, operating a
    fully marked police vehicle. He had been advised that it was a personal injury
    motor vehicle collision. Upon his arrival, Cst. Hart noted two damaged
    vehicles in the northbound lane.

[14]

Based
    on information he received from a paramedic who was already on scene, Cst. Hart
    approached Ms. Roberts, believing that she was the driver of one of the
    vehicles and that she could be impaired. He spoke with her as she stood on a
    grassy boulevard with two other women, not far from the Honda Pilot he
    understood her to have been driving.

[15]

Ms.
    Roberts told Cst. Hart that she was not injured. He noted, however, that she
    was unable to explain how the motor vehicle collision had occurred, and had
    difficulty forming complete sentences during a conversation they had about the
    direction of travel and the sequence of events of what actually occurred. Cst.
    Hart testified, at that time I did note the slight odour of an alcoholic
    beverage on her breath and for that reason I asked her to walk with me back to
    my cruiser. He said she complied. During the walk to the cruiser on a dry,
    flat paved surface, Cst. Hart noted that Ms. Roberts appeared unsteady on her
    feet. She brushed into him on two separate occasions.

[16]

Cst.
    Hart asked Ms. Roberts to get in the back seat of the police vehicle. She was
    reluctant. He told her he had to investigate the motor vehicle collision. He
    also testified: Additionally, I also felt it was a bit of a safety issue
    given that cars were being diverted by his police vehicle, as the northbound
    lanes were blocked by the accident. Ms. Roberts got into the back seat of the
    police vehicle. She testified that she felt she had no choice.

[17]

Further
    conversation ensued. Cst. Hart testified that he noted a distinct odour of an
    alcoholic beverage on Ms. Roberts breath, and then had a more detailed
    conversation with her about alcohol consumption. She said she had just come
    from a restaurant where she had had two large beers. During the conversation
    her speech was slow, deliberate, and slightly slurred. At 11:16 p.m., Cst. Hart
    asked Ms. Roberts to exit the cruiser and placed her under arrest for impaired
    operation of a motor vehicle.

[18]

Cst.
    Hart testified that at 11:20 p.m. he read Ms. Roberts her rights to counsel. He
    cautioned her and read her a breath demand at 11:21 p.m. After a brief
    conversation in which she stressed the importance of attending an appointment
    the next day, Cst. Hart retrieved Ms. Roberts documents from her vehicle,
    including her drivers licence. He arranged for a breath technician and
    confirmed that other officers would take statements and do the traffic report.
    He also arranged to have Ms. Roberts seen by the paramedic he had spoken to
    earlier. Again, Ms. Roberts denied being injured and signed a waiver of
    release. He left the scene with Ms. Roberts at 11:40 p.m. He took her directly
    to the Burlington police station, arriving at 11:54 p.m.

[19]

At
    the station, police processed Ms. Roberts and placed a call to duty counsel. At
    12:11 a.m. duty counsel called back and Ms. Roberts was taken to speak with
    duty counsel in a private phone booth. The conversation ended at 12:15 a.m.

[20]

At
    12:21 a.m. Cst. Hart completed his interview with Cst. Steven Maxwell, a
    qualified breath technician. He then gave custody of Ms. Roberts to Cst.
    Maxwell at 12:21 a.m.

[21]

Cst.
    Maxwell testified that he was with Ms. Roberts longer than is usually required
    to secure breath samples from a subject. During that time, approximately an
    hour and a half, he formed the opinion that her ability to operate a motor
    vehicle was impaired by alcohol. Ms. Roberts eyes were bloodshot and she had a
    strong odour of alcohol on her breath. Her balance was slow and careful, and
    she appeared to have soiled and wet her pants. Cst. Maxwell found her to be
    antagonistic. She repeatedly failed to provide suitable samples of her breath
    into the approved instrument despite instructions. Cst. Maxwell believed she
    was intentionally frustrating the process.

[22]

Ms.
    Roberts complained of chest pain while with Cst. Maxwell. However, she
    repeatedly declined his offers of medical attention.

[23]

Ms.
    Roberts ultimately provided breath samples into an approved instrument that
    were suitable for analysis. The first sample, at 1:11 a.m., produced a result
    of 211 milligrams of alcohol in 100 millilitres of blood. The second sample was
    obtained at 1:40 a.m., producing a reading of 201 milligrams of alcohol in 100
    millilitres of blood.

[24]

As
    she would later discover, Ms. Roberts had, in fact, been injured during the
    accident. She testified that she had a broken sternum, a broken rib, a possible
    second broken rib, and a possible compression fracture to her lower vertebra.

[25]

Ms.
    Roberts was initially charged with the offences of impaired driving contrary to
    s. 253(1)(a) of the
Criminal Code
,

and driving with more than
    the legal limit of alcohol in her blood contrary to s. 253(1)(b) of the
Criminal
    Code
. A few days later those charges were upgraded to two counts of
    impaired driving causing bodily harm contrary to s. 255(2) of the
Criminal
    Code
, and two counts of causing bodily harm while driving with more than
    the legal limit of alcohol in her blood contrary to s. 255(2.1) of the
Criminal
    Code
.

[26]

At
    her trial by jury, Ms. Roberts sought to have much of the evidence against her
    excluded because of claimed violations of her
Charter

rights.

[27]

Specifically,
    during a
Charter voir dire
she urged that she was not properly advised
    of the reasons for her detention, contrary to s. 10(a) of the
Charter
.
    She argued that, pursuant to s. 7 of the
Charter
, statements she made
    to the officers could not be admitted into evidence for any purpose because
    those statements had been statutorily compelled. Moreover, she claimed that
    without those statements, Cst. Hart did not have reasonable and probable
    grounds for her arrest, contrary both to her s. 8 right to be free from
    unreasonable search or seizure and her s. 9 right not to be arbitrarily
    detained.

[28]

Ms.
    Roberts also claimed that her right to counsel under s. 10(b) of the
Charter
was violated, since she was steered to duty counsel, depriving her of the
    right to choose the lawyer she would consult. Finally, she claimed that Cst.
    Hart had been conducting an informal sobriety test when he walked her back to
    his police cruiser, and that it was contrary to s. 10(b) of the
Charter

for Cst. Harts observations to be admitted at trial as proof her
    impairment.

[29]

In
    his
Charter

ruling, the trial judge rejected all of the alleged

violations. His rejection of Ms. Roberts claim that she felt statutorily
    compelled to speak to the officers was influenced heavily by adverse
    credibility findings he made against Ms. Roberts.

[30]

At
    the trial proper, in addition to the evidence of driving, impairment, and the
    breath readings described above, the Crown called as a witness Ms. Marie
    Elliot, an expert toxicologist from the Centre for Forensic Science. She was
    called to provide an expert opinion about Ms. Roberts blood alcohol level at
    the time of the collision, her last act of driving. Employing several factual
    assumptions, she gave evidence that Ms. Roberts blood alcohol level would have
    been well over the legal limit of 80 milligrams of alcohol in 100 millilitres
    of blood when the collision occurred, whether the accident occurred at 10:45
    p.m., or at 10:51:12 p.m., the time of the 9-1-1 call.

[31]

Ms.
    Roberts countered with competing evidence from her own expert witness, Dr.
    Ward. Assuming Ms. Roberts bolus drinking claim to be true, Dr. Wards
    evidence raised the prospect that Ms. Roberts blood alcohol content at the
    time of driving could straddle the legal limit of 80 milligrams of alcohol in
    100 millilitres of blood. In other words, he posited that Ms. Roberts blood
    alcohol level at the time of driving could be below the legal limit, as low as
    69 milligrams in 100 millilitres of blood, or above the legal limit, as high as
    98 milligrams of alcohol in 100 millilitres of blood.

[32]

Prior
    to the jury charge, and again after the charge, counsel for Ms. Roberts asked
    the judge to direct the jury that straddle evidence is capable of raising a
    reasonable doubt about Ms. Roberts blood alcohol level. The trial judge
    declined and did not specifically instruct the jury on the use it could make of
    the straddle evidence.

[33]

As
    indicated, the jury ultimately found Ms. Roberts guilty of all charges.

THE ISSUES

[34]

Ms.
    Roberts raises a number of grounds of appeal from these findings of guilt and
    her ensuing convictions, some of which were refined during oral argument. It is
    convenient to state the grounds of appeal as follows, and to address them in
    the following order:

A.

Did the trial judge err in his credibility assessment of Ms. Roberts
voir
    dire

testimony relating to her claim that she spoke to the officers
    because she believed she was statutorily compelled to do so?

B.

Did the trial judge err in rejecting Ms. Roberts reasonable and
    probable grounds appeal?

C.

Did the trial judge err in finding that Ms. Roberts s. 10(a) rights
    were not infringed?

D.

Did the trial judge err in admitting into evidence the observations Cst.
    Hart made of Ms. Roberts condition as he accompanied her to the police
    vehicle?

E.

Did the trial judge err in declining to instruct the jury on the nature
    and applicability of the straddle evidence given by the defence expert
    toxicologist, Dr. Ward?

F.

Did the Crowns cross-examination of Ms. Roberts result in a miscarriage
    of justice?

ANALYSIS

A.

Ground of Appeal 1  The credibility evaluation

[35]

At
    trial, Ms. Roberts sought to have the conversations she had with Cst. Hart and
    Cst. Maxwell excluded from evidence. She claimed during the
Charter voir
    dire
that she spoke to the officers because she believed she was statutorily
    compelled to do so. She said that the law requires statutorily compelled
    statements to be excluded from evidence for all purposes, including whether
    Cst. Hart had reasonable and probable grounds for her arrest. The statutory
    provision Ms. Roberts was alluding to is the
Highway Traffic
Act, R.S.O.
    1990, c. H.8, s. 199(1):

199(1) Every person in charge of a motor vehicle or street car
    who is directly or indirectly involved in an accident shall, if the accident
    results in personal injuries or damage to property apparently exceeding the
    amount prescribed by regulation, report the accident forthwith to the nearest
    police officer and furnish him or her with the information concerning the
    accident as may be required by the officer under subsection (3).

[36]

The
    trial judge did not believe Ms. Roberts claim that she spoke because she believed
    she was statutorily compelled to do so. Ms. Roberts claims the trial judge
    erred in making that credibility assessment. I disagree. The trial judge was
    entitled to come to the conclusion he did.

[37]

The
    rule that Ms. Roberts relied upon to support her contention that statutorily
    compelled statements are not admissible for any purposes is grounded in the
    decisions in
R. v. White
,

[1999] 2 S.C.R. 417, and
R. v.
    Soules
, 2011 ONCA 429, 105 O.R. (3d) 561, leave to appeal refused, [2011]
    S.C.C.A. No. 375.

[38]

In
White
, at para. 67, the Supreme Court held that where a driver is
    statutorily compelled to make a statement for highway traffic purposes, the
    driver is entitled, at least, to use immunity in criminal proceedings in relation
    to the contents of that statement. The court set out the test for determining
    whether a statement is statutorily compelled. The accused, Ms. White, met that
    test. The court also held, at para. 89, that statutorily compelled statements
    are to be automatically excluded from evidence under s. 24(1) of the
Charter
.
    As a result, the Crown was prevented from using Ms. Whites statements at trial
    to prove that Ms. White was the driver of a hit-and-run vehicle. In other
    words, s. 7 of the
Charter

prevented the Crown from using Ms.
    Whites statutorily compelled statements to incriminate her.

[39]

In
Soules
, this court took the rule in
White

one step farther.
    Consistent with the broad language and reasoning employed in
White
, this
    court held that s. 7 prevents statutorily compelled statements from being used
    for any purpose in a criminal trial, including during a
Charter voir dire
to establish whether an officer had reasonable and probable grounds to arrest
    the subject.

[40]

In
    order to rely on this line of authority, Ms. Roberts had the burden of
    establishing on the balance of probabilities, among other things, that she
    gave the report on the basis of an honest and reasonably held belief that she
    was required by law to report the accident to the person to whom the report was
    given:
White
, at para. 75. To meet this burden, Ms. Roberts testified
    at the
voir dire
that she had been told by senior people from the
    Waterloo Region Police Service that if youre ever involved in a car accident
    and the damages is a thousand dollars or estimated to be over a thousand
    dollars, you have to report that. She said this conversation took place when
    she was planning a training program with these officers relating to interviewing
    children.

[41]

As
    I have said, the trial judge did not believe this testimony. He found that the
    reason Ms. Roberts chose to speak was to curry favour with the police by
    impressing them with her status as a police college instructor.

[42]

The
    Crown disagrees with Ms. Roberts contention that the trial judge erred in his
    credibility assessment in coming to this conclusion. Nevertheless the Crown
    claims that the propriety of the credibility assessment does not matter because
    the Supreme Court has effectively overruled
Soules
in
R. v.
    Paterson
, 2017 SCC 15, [2017] 1 S.C.R. 202. The Crown claims that, after
Paterson
,
    statutorily compelled statements are now admissible to prove reasonable and probable
    grounds in a
Charter voir dire
.

[43]

In
    making this submission, the Crown relies, in part, on a footnote in the
    majority decision in
Paterson
, in
    which
Brown J. states: Without commenting on the correctness of
Soules
,
    I observe that [the direction in
R. v. Orbanski
, 2005 SCC 37, [2005] 2
    S.C.R. 3] that the police may rely upon roadside statements for the purpose I
    have described was categorical. The purpose  described was establishing
    grounds for a breath demand during a
Charter voir dire
.

[44]

Although
    this remark by Brown J. does invite debate about the correctness of
Soules
,
    I do not agree that
Paterson

has resolved the question. The
    issue is too complex and important for the Supreme Court to have done so in a
    footnote; particularly a footnote that expressly refrains from commenting on
    the correctness of the
Soules

decision.

[45]

Moreover,
    the fact that
Paterson

foregoes the need for voluntariness
voir
    dires

during
Charter voir dires
does not impel the
    conclusion that statutorily compelled statements are now admissible during
Charter
    voir dires
. It has repeatedly been emphasized, including most recently in
R.
    v. Jones
, 2017 SCC 60, at para. 30, citing
White
, at para. 45,
    that:

The principle against self-incrimination demands different
    things at different times, with the task in every case being to determine
    exactly what the principle demands, if anything, within the particular context
    at issue.

[46]

I
    would note, in this regard, that the categorical entitlement to rely on
    roadside statements recognized in
Orbanski
, and referred to in the
Paterson

footnote, relates to responses to questions posed by police officers that
    drivers are not compelled to answer. The self-incrimination implications may be
    quite different for statements the subject is legally obliged to make by
    statute.

[47]

And
    while it is true that much of the language and reasoning in
Paterson

would support its extension to statutorily compelled statements, the
    language and reasoning in
White
is decidedly to the contrary.

[48]

Paterson

cannot, therefore, be taken to have overruled
Soules
. Nor is it appropriate,
    in my view, for a three-member panel of this court to reconsider our decision
    in
Soules
based on the
Paterson

decision. In my view,
    the
Soules

decision remains binding law in Ontario unless and
    until it is properly brought before this court for its reconsideration or is
    overruled by the Supreme Court.

[49]

Ultimately,
    it is unnecessary to consider the fate of
Soules

further in
    order to resolve this appeal. I would not interfere with the trial judges decision
    to reject Ms. Roberts claim that she spoke out of a sense of statutory
    compulsion. That credibility finding is entitled to great deference on
    appellate review:
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at
    para. 26. Ms. Roberts has not raised any legal errors in the trial judges analysis,
    nor has she shown that his credibility finding cannot be reasonably supported
    by the evidence:
R. v. J.J.B.
, 2013 ONCA 268, 305 O.A.C. 201, at paras.
    23-24. It is only where the reviewing court has considered all of the evidence
    before the trier of fact, and determined that the credibility determination
    cannot be supported by that evidence, that the court can overturn it: see
R.
    v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 10.

[50]

Specifically,
    I do not accept Ms. Roberts main contention that it was improper for the trial
    judge to engage in a global assessment of Ms. Roberts credibility by relying
    on credibility problems with other aspects of her evidence when deciding
    whether to believe her statutory compulsion claim. There is nothing wrong with discounting
    a specific claim made by a witness because they have been discredited on other
    claims they have made.

[51]

For
    example, it was obvious to the trial judge from the breath room video that Ms.
    Roberts was trying to delay furnishing a breath sample for analysis. Yet Ms.
    Roberts denied doing so in her evidence. In this way, Ms. Roberts showed a
    readiness to manipulate the process to suppress potentially incriminating
    evidence. She also revealed the capacity to testify untruthfully. The trial judge
    was entitled to consider these things when assessing her statutory compulsion claim.

[52]

Nor
    do I accept Ms. Roberts other challenges to the trial judges credibility
    evaluation.

[53]

It
    was not unfair for the trial judge to recognize Ms. Roberts intelligence and
    her role as a police trainer, as Ms. Roberts contends. Her intelligence was
    relevant to whether she would know enough to secure bar receipts, phone logs,
    and available confirming evidence, if what she was saying was true. Her
    experience in training the police about childrens evidence was also relevant
    for the same purpose.

[54]

Nor
    did the trial judge err in noting the absence of support for Ms. Roberts claim
    that she had a conversation with Waterloo police officers about accident
    reporting. Contrary to her submissions, it would not have been impermissible
    oath-helping to call the Waterloo officers to testify about what they told her.
    Although it is impermissible to have one witness testify that another witness
    is telling the truth, it is not impermissible to call a witness to verify that
    they have witnessed a material fact that another witness claims, including the
    occurrence of a conversation that is being relied upon as a source of knowledge.

[55]

I
    also reject Ms. Roberts argument that the trial judge erred by not recognizing
    that [d]rivers in general know that they have a duty to report an accident and
    that they have to talk to the police about it:
R. v. DaCosta
, [2001]
    O.T.C. 474 (S.C.), 156 C.C.C. (3d) 520, at para. 17. This proposition of common
    sense is not a legal rule that creates a presumption of statutory compulsion.
    The plausibility of any claim is simply a factor to consider, and the trial
    judge was entitled not to be moved by this plausibility submission in the
    circumstances of this case.

[56]

As
    the Crown pointed out, where statutory compulsion is claimed, the issue is not simply
    whether the driver who has spoken knows of the legal duty to report an
    accident. The issue is whether the reason the driver spoke when they did was because
    they felt compelled by a legal obligation to do so. In this case, there was an
    ample evidentiary foundation for the trial judges conclusion that Ms. Roberts
    engagement with the police was motivated not by a sense of legal obligation,
    but by a desire to influence their course of conduct by impressing them with
    her role as a police instructor.

[57]

Specifically,
    Ms. Roberts brought her role as a police instructor up repeatedly and
    persistently. She did so immediately after being informed that she was being
    arrested and would have to provide a breath sample. She did so on numerous
    occasions at the police station while being videotaped. In fact, she referred
    to her role as a police trainer so frequently that Cst. Hart encouraged her to
    get over this sticking point so he could get on with the investigation. Then,
    in the breath room, she continued to mention her police training work to Cst.
    Maxwell.

[58]

Finally,
    Ms. Roberts takes issue with the trial judges decision to discredit her claim
    that the Waterloo accident reporting conversation took place, on the basis that
    she did not mention this conversation to Cst. Hart or Cst. Maxwell. I suspect
    that many judges would not have drawn this inference. Given that people tend
    not to explain to police officers why they have decided to speak, the failure
    to explain may well cast little light on whether a subsequent explanation for
    the decision to speak is true. Yet, it was up to the trial judge to decide what
    inferences to make. The fact that other judges might disagree does not signal a
    reversible error.

[59]

Even
    if this reasoning does amount to a misapprehension of the evidence, it has not
    produced a miscarriage of justice. Stripping this inference from the record
    does not weaken the ultimate conclusion. The trial judge had ample reason for rejecting
    Ms. Roberts statutory compulsion claim on the balance of probabilities.

B.

Ground of Appeal 2  Reasonable and Probable grounds

[60]

Ms.
    Roberts appeals the trial judges rejection of her s. 8
Charter

claim
    that Cst. Hart did not have reasonable and probable grounds to arrest her. She
    links this ground of appeal to her submission that her statements are
    inadmissible under
Soules
. Ms. Roberts urges that once her statements
    are excluded under
Soules
, the remaining information cannot support a
    finding of reasonable and probable grounds that her ability to operate a motor
    vehicle was impaired.

[61]

I
    have already rejected the
Soules

ground of appeal. This ground
    of appeal therefore also fails. The other evidence in the case, coupled with
    the statements made by Ms. Roberts, provided reasonable grounds for Cst. Harts
    belief that Ms. Roberts ability to operate a motor vehicle was impaired by alcohol.

C.

Ground of Appeal 3  The Reason for Detention

[62]

Ms.
    Roberts contends that the trial judge erred by failing to find that her s. 10(a)
Charter

rights had been breached. That section provides:

10.     Everyone has the right on arrest or detention

(a) to
    be informed promptly of the reasons therefor[.]

[63]

Breaches
    of s. 10(a) can be temporal or informational. A temporal breach occurs if
    an arrested or detained person is not promptly informed of the reasons for
    their detention. An informational breach arises if the reasons for their
    detention are not adequately communicated. On appeal, Ms. Roberts identifies both
    kinds of breaches of s. 10(a): a temporal breach by Cst. Hart in failing to
    promptly notify Ms. Roberts of the reason for her detention; and an
    informational breach by Cst. Hart in failing to advise Ms. Roberts of the
    actual extent of her jeopardy. I would dismiss both grounds of appeal.

(1)

The Temporal Breach

[64]

Ms.
    Roberts claims that a temporal breach of s. 10(a) occurred when Cst. Hart failed
    to advise her of the reason for her detention before asking her to accompany
    him to his police vehicle. Ms. Roberts did not raise this s. 10(a) temporal
    breach as a ground of appeal in her notice of appeal, or in her supplementary
    notice of appeal. This may be because Ms. Roberts did not raise it as an issue
    in her
Charter
application at trial, either. The alleged
    informational breach was the sole focus in that application. This may, in
    turn, explain the curiosity that the trial judge did not identify the point of
    detention in his
Charter

decision.

[65]

Ms.
    Roberts does, however, raise the temporal violation issue in her appeal factum,
    and the Crown has responded. The fact that the parties have joined issue on
    this question during the appeal does not make it a valid ground of appeal, and I
    find it not to be. The trial judge can hardly be said to have erred in failing
    to find a
Charter

breach that he was not asked to find. I would
    therefore dismiss this ground of appeal.

[66]

Even
    if the temporal violation had been properly raised on this appeal, I would not
    have accepted it. Ms. Roberts temporal breach argument was based primarily on
    the assumption that Ms. Roberts was detained when Cst. Hart asked her to
    accompany him to the police vehicle. The evidence does not support this
    assumption. Ms. Roberts was not physically restrained and she was under no
    legal obligation to comply with Cst. Harts request. Although a reasonable
    person in Ms. Roberts position might well conclude that she had been deprived
    of her liberty when asked by a police officer to walk with me back to my
    cruiser, Ms. Roberts clearly did not subjectively believe that she was being
    detained. She testified:

I understood he had an accident to investigate. I walked with
    him to the cruiser. I presumed that hed be doing the same things to everybody
    else, the witnesses.

[67]

Ms.
    Roberts was therefore not psychologically detained. On the evidence before the
    trial judge, this is one of those interactions between the police and members
    of the public, even for investigative purposes, that does not constitute a
    detention within the meaning of the
Charter
:
R. v. Suberu
,
    2009 SCC 33, [2009] 2 S.C.R. 460, at para. 3.

[68]

During
    submissions on appeal, the suggestion was made that it would be unfair for the
    Crown to now claim that Ms. Roberts was not detained at that point, given that
    everyone operated on the assumption during the trial that she was detained once
    asked by Cst. Hart to walk to the police vehicle. Specifically, during
voir
    dire

argument the trial judge suggested that Ms. Roberts was
    detained at this time, defence counsel expressed agreement, and the Crown
    raised no objection. In my view, the Crowns failure to raise an objection
    during the exchange between the trial judge and defence counsel does not amount
    to the Crowns agreement that Ms. Roberts was detained when she walked back to
    the police vehicle with Cst. Hart. The Crown is not estopped on this appeal
    from contesting when Ms. Roberts was detained at this time.

[69]

Finally,
    even if I were to hold myself to the trial Crowns concession-by-acquiescence
    of detention, in my view it would damage the repute of the administration of
    justice to exclude the evidence under s. 24(2) of the
Charter

based
    on a notional, rather than actual,
Charter

breach. Cst. Hart
    cannot be expected to have advised Ms. Roberts of the reason for her detention
    when she was not actually legally detained, and this notional breach would have
    no impact on her
Charter

protected interests. Even holding the
    Crown to the apparent trial consensus on detention would not result in the
    exclusion of evidence.

(2)

The Informational Breach

[70]

Ms.
    Roberts claims that the trial judge erred in finding that she was adequately
    informed of the reason for her arrest. She says that there was an informational
    breach of her s. 10(a) rights. Specifically, she urges that Cst. Hart was
    actually investigating and detaining her for the aggravated offence of impaired
    driving causing bodily harm, but she was advised only that she was being
    arrested for the basic offence of impaired driving.

[71]

She
    also contends that the trial judge misunderstood the informational breach issue,
    as is evident by his comment that there had not been changed circumstances or
    new developments that would require further legal advice. The reference to
    changed circumstances or new developments invokes case law that obliges
    officers to re-perform their s. 10
Charter
obligations when the reason
    for a subjects detention has changed:
R. v. Black
, [1989] 2 S.C.R. 138;
    and
R. v.  Blake
, 2015 ONCA 684, [2015] O.J. No. 5192. Ms. Roberts was
    not relying on a change in circumstances. Her complaint is that, from the
    outset, she was detained because of the aggravated offence of impaired driving
    causing bodily harm, and she should have been told so.

[72]

I
    agree that the trial judges changed circumstances comment is puzzling. What
    matters, however, is that the trial judge was correct in finding that there was
    no informational breach of s. 10(a). In my view, Cst. Hart properly advised Ms.
    Roberts of the reason for her detention and gave her adequate information
    before she spoke to duty counsel relating to the extent of her jeopardy.

[73]

It
    is important to understand that s. 10(a) applies if a person is either arrested
    or detained. One who is being arrested is, of course, being detained. A person
    can, however, be detained without being arrested. The statuses overlap, but are
    not identical. If someone is being arrested, it is imperative that they are
    told of the reasons for their arrest. That is what Cst. Hart did when he first
    explained to Ms. Roberts why she was not free to leave.

[74]

Specifically,
    Cst. Hart told Ms. Roberts that she was being arrested for impaired operation
    of a motor vehicle. He was right to have done so, even if he suspected she may
    have committed the more aggravated offence of impaired driving causing bodily
    harm. On the evidence presented during the
voir dire
, Cst. Hart did
    not have grounds to arrest Ms. Roberts for the aggravated offence. He knew
    there had been a personal injury accident, but he had no objective basis for
    concluding that she caused the accident. It was not immediately evident from
    the position or damage to the vehicles which driver, if any, had been at fault.
    An accident report had not yet been conducted. And Ms. Roberts was unable to
    explain what happened. When he arrested her, Cst. Hart could have justifiably
    been criticized if he had told Ms. Roberts she was being arrested for impaired
    driving causing bodily harm. The only grounds he had at the time related to the
    basic offence of impaired driving.

[75]

There
    are times when a police officer must go beyond disclosing the grounds for
    arrest. I agree with the decision in
R. v. Carter
, 2012 ONSC 94,
    relied upon by Ms. Roberts. Mr. Carter, arrested for drug offences, was
    suspected of committing a murder. While under arrest, Mr. Carter was interviewed
    about the murder. The court held that s. 10(a) was breached because he was not
    told what he was really being questioned about.

[76]

Quite
    simply, if the police wants to use a person detained for one offence as a
    source of self-incriminating information relating to a different offence 
    including an aggravated form of the offence for which they have been detained 
    the police must tell the detainee this before proceeding. Indeed, they must
    tell the arrested detainee what they are being investigated for before they
    have been given their right to counsel. If the police interest in another
    offence arises after a detainee has been given an opportunity to consult
    counsel, the police must give the detainee another opportunity to consult
    counsel:
R. v. Blake
, at paras. 19-22.

[77]

In
    this case, those rules were complied with. Ms. Roberts was informed of her
    potential jeopardy of the aggravated offence before she spoke to counsel and
    before any steps were taken after her arrest to use her as a source of
    evidence.

[78]

Section
    10(a) does not require that detainees be told of the technical charges they may
    ultimately face. A person will be properly advised of the reason for their
    detention if they are given information that is sufficiently clear and simple
    to enable them to understand the reason for their detention and the extent of
    their jeopardy:
R. v.

Evans
, [1991] 1 S.C.R. 869, at pp. 886-88;
    and
R. v. Nguyen
, 2008 ONCA 49, 232 O.A.C. 289, at paras. 16-22. Put
    more purposively: The issue is whether what the accused was told, viewed
    reasonably in all the circumstances, was sufficient to permit [her] to make a
    reasonable decision to decline or submit to arrest, or in the alternative, to meaningfully
    exercise the right to counsel under s. 10(b):
R. v. Gonzales
, 2017
    ONCA 543, 136 O.R. (3d) 225, at para. 125. It is the second part of this
    purposive test that is at issue here. In my view, Ms. Roberts had adequate information
    about her jeopardy to meaningfully exercise her right to counsel.

[79]

Specifically,
    Cst. Hart told Ms. Roberts shortly after they arrived at the station: Okay.
    Youve been arrested as a result of that, impaired operation of a motor
    vehicle. Thats been really our biggest concern right now is making sure that
    those people are gonna be Okay. When she asked if she would be released in
    time to make her teaching engagement at the police college the next day, Cst.
    Hart stated: Kim, I cant make any other assurance, okay. We have to worry
    about the injuries at the hospital, okay. When Cst. Hart attempted to make
    sure she understood what was happening, Ms. Roberts said: No, no. I understand
    that if anyone is hurt that, that crime. In context, Ms. Roberts comment was
    a clear acknowledgment that she knew she could be held responsible criminally
    if injuries were caused.

[80]

On
    this record, the trial judge was entitled to find that, before Ms. Roberts
    spoke to counsel, she had been told about her actual and potential jeopardy in
    simple language that she understood. The trial judge was correct to reject the
    s. 10(a) informational breach claim.

D.

Ground of Appeal 4  Observations of Ms. Roberts Condition

[81]

Ms.
    Roberts claims that the trial judge erred in admitting, as proof of impairment,
    observations Cst. Hart made when he walked her to his police vehicle. She
    contends that since Cst. Hart directed her to walk to his police vehicle to further
    his investigation, she was being conscripted during the walk to provide
    evidence against herself. She urges that conscripted observations of sobriety
    are inadmissible as proof of guilt according to the authority in
Orbanski
and
R. v. Milne
(1996)
,
    28 O.R. (3d) 577 (C.A.), leave to appeal dismissed, [1996] S.C.C.A. No. 353, and
    she relies on the test of conscription adopted in
R. v. Visser
, 2013
    BCCA 393, 342 B.C.A.C. 129. I disagree. Ms. Roberts does not qualify for the
    legal protection she claims.

[82]

In
    my view, the relevant, settled law can be stated in the following way. Lawfully
    obtained evidence conscripted from a detainee through roadside sobriety testing
    is admissible to establish grounds for an arrest or detention, but such
    evidence is not admissible as proof of actual alcohol consumption or
    impairment. As I will explain, according to the law of Ontario, evidence is
    conscripted in the relevant sense only if the act directed by the officer is,
    itself, a sobriety test.

[83]

To
    be clear, sobriety testing is not confined to the physical co-ordination tests
    prescribed by regulation as contemplated by s. 254(2)(a) of the
Criminal
    Code
. Sobriety testing can include questions asked about alcohol
    consumption (
Orbanski
); directions to detainees to perform physical
    challenges not provided for in s. 254(2)(a) such as informal co-ordination
    tests (
Milne
) or directions to exit a motor vehicle (
Visser
;
    and

R. v. Iannotta
, [2009] O.J. No. 5181 (S.C.)); or directions
    to blow into the face of an officer (
R. v. Weintz
, 2008 BCCA 233, 256
    B.C.A.C. 197, leave to appeal refused, [2008] S.C.C.A. No. 362).

[84]

The
    Crown argues that Cst. Harts observations were properly admitted because they
    are not caught by the rule I have just described. The Crown says that the
    protection Ms. Roberts claims is available only to detained individuals, and she
    was not detained at the relevant time. The Crown submits that, in any event,
    she was not being conscripted during the walk to the police vehicle since Cst.
    Hart did not intend the walk to be a sobriety test.

[85]

For
    the reasons that follow, I will not decide this ground of appeal on the
    detention point. I agree with the Crown, however, that Ms. Roberts was not
    conscripted when Cst. Hart made his observations. His observations were therefore
    properly admitted as evidence of guilt.

[86]

I
    will begin with the detention point.

[87]

The
    Crown is correct that the reasoning in the
Orbanski

and
Milne

decisions turns on the right to counsel in s. 10(b) of the
Charter
,
    a right that is available only to those who are detained. In each case, restrictions
    on the admissibility of conscripted observations of sobriety were linked to the
    s. 10(b) obligation of the police to refrain from conscripting a detainee as a
    source of evidence until they have had a reasonable opportunity to consult
    counsel. The constitutional right to be protected from conscription until a
    reasonable opportunity to consult counsel has been provided would be breached by
    roadside sobriety testing, unless the testing is a demonstrably justifiable and
    reasonable limit on this constitutional right that is prescribed by law.

[88]

Both
Orbanski

and
Milne

accepted that conscripting
    detainees through roadside sobriety testing provided for in provincial highway
    traffic legislation is demonstrably justifiable and reasonable.
Orbanski

did so with respect to questions about alcohol consumption.
Milne

did so with co-ordination tests. Both cases imposed an important caveat: roadside
    sobriety testing is reasonable and justifiable so long as the evidence obtained
    is used solely to support an officers ground for arrest or detention. In
    contrast, it would be disproportionate, and therefore not demonstrably
    justifiable, to use conscripted evidence as proof of impairment during a trial.

[89]

As
    I have explained, Ms. Roberts was not detained when asked by Cst. Hart to
    accompany him to his police vehicle. She cannot, therefore, invoke the s. 10(b)
    right that grounds the decisions in
Orbanski

and
Milne
,
    and that girds the settled rule I have described.

[90]

I
    would not decide this ground of appeal, however, on the basis that Ms. Roberts
    was not detained. This is because there are complex questions, not argued
    before us, about whether s. 7 of the
Charter

houses parallel
    restrictions on the admission of evidence of sobriety conscripted from those
    who are not detained.
[2]
Since this ground of appeal can be resolved on the conscription issue, I prefer
    to do so. As I have indicated, in my view Ms. Roberts does not benefit from the
    rule she invokes, as she was not conscripted to provide evidence while walking
    to the car.

[91]

There
    is controversy about how conscription is to be tested for the purpose of this
    restricted admissibility rule. In British Columbia, a motorist is conscripted
    within the meaning of this rule if they are directed to act for the purpose of
    assessing their alcohol consumption, even if the directed act itself is not a
    sobriety test. In Ontario, a motorist is conscripted within the meaning of the
    rule only if the directed act itself
is
a sobriety test.

[92]

The
    British Columbia position comes from
Visser
, in which the court
    explained that if an officer directs a motorist to act for the purpose of
    investigating an alcohol offence, the motorist will have been conscripted, and observations
    made will not be available to prove guilt. In
Visser
, since the
    officer directed Mr. Visser to step out of his car for the purpose of assessing
    his alcohol consumption after he was out of the car, the officers observations
    of Mr. Visser getting out of the car should not have been admitted at trial.

[93]

In
    Ontario, the leading decision is
R. v. Brode
, 2012 ONCA 140, 109 O.R.
    (3d) 481. In
Brode
,
this court held that if an officer directs a motorist to get out of their vehicle
as

a sobriety test, the observations cannot be admitted at trial
    to prove impairment. If an officer directs a motorist to get out of the car not
    as a sobriety test, but to facilitate further investigation, including
    gathering other information about sobriety through questioning once the driver
    is outside of the car, observations made of the motorist while exiting the car
    are admissible at trial to prove impairment. In
Brode
, even though Mr.
    Brode was being directed out of the car so that his sobriety could be observed
    once out of the car, since it had not been established that Mr. Brode was
    directed to exit his car so that his manner of exiting the car could be used as
    a sobriety test, evidence that he stumbled when doing so was admissible as
    proof of his impairment.

[94]

In
Visser
,

at para. 68, the court was critical of the reasoning in
Brode
,
    calling it a distinction without a difference. To be sure, the rule in
Brode

invites a narrow line to be drawn. The approach in
Brode
, however,
    is arguably in keeping with the admonition in
Milne
, at para. 40, and
Orbanski
,
    at para. 58, that the restriction on admissibility applies only to evidence
    obtained from compelled direct participation by the motorist in roadside
    tests. It does not apply to observations made by an officer while carrying out
    other duties including observations of unsteadiness of gait upon the driver
    exiting the vehicle.

[95]

In
    this case, the trial judge applied the more generous
Visser

test
    but still rejected Ms. Roberts challenge. He found as a fact that Cst. Hart
    asked Ms. Roberts to accompany him to his police vehicle because of safety
    concerns, not for investigative purposes. This finding took the case out of even
    the more generous British Columbia rule.

[96]

Mindful
    of the deference owed to trial judges on questions of fact, I have reservations
    about this finding by the trial judge. Cst. Hart never testified that he walked
    Ms. Roberts to the police vehicle for safety reasons. She was already off of
    the road on a grassy median when he initially approached her. Cst. Hart said he
    smelled a faint odour of alcohol, and at that time, for that reason, I asked
    her to walk with me back to my cruiser. Cst. Hart did speak of safety concerns
    in his testimony, but he did so to explain why he placed Ms. Roberts in his
    police vehicle after they arrived at the vehicle. He said he put her inside the
    police vehicle because the traffic was being routed past the police vehicle.
    And when he put her inside, he told Ms. Roberts he was doing so in order to
    investigate the accident.

[97]

In
    my view, the trial judge nonetheless came to the correct conclusion. Ms.
    Roberts has not established that when Cst. Hart asked her to accompany him, he
    did so for the purpose of observing her sobriety as she walked. Even though the
    evidence does support the conclusion that Cst. Hart intended to conduct further
    investigation once they had walked to the police car, this falls short of what
    is required in Ontario. There was simply no evidence at the
Charter voir
    dire

that Cst. Hart had directed Ms. Roberts to walk so that he
    could test her sobriety while walking. Ms. Roberts has not shown, therefore,
    that she was compelled to participate in roadside testing as she walked to the
    police vehicle. I would therefore reject this ground of appeal.

E.

Ground of Appeal 5  The Straddle Breach

[98]

Ms.
    Roberts argues that the trial judge erred by not directing the jury on how to
    deal with an opinion offered by Dr. Ward based on hypothetical facts, relating
    to her blood alcohol content at 10:51 p.m. I disagree. This evidence was
    unimportant and did not require a jury direction.

[99]

Dr.
    Wards evidence was provided because of controversy about Ms. Roberts blood
    alcohol reading at the time of driving. The parties agreed that the breath
    samples taken by Cst. Maxwell confirmed that at 1:11 a.m. and 1:40 a.m. Ms.
    Roberts had more than 200 milligrams of alcohol in 100 millilitres of her blood,
    well over the legal limit. This evidence, on its own, could not prove Ms.
    Roberts blood alcohol level at the time of driving because blood alcohol
    levels change over time as alcohol is absorbed and metabolized. The Crown could
    not rely on the statutory presumption of identity in
Criminal Code
, s.
    258(1)(c) that presumes blood alcohol levels to be the same both at the time breath
    tests are taken and when the alleged offence was committed, since more than two
    hours passed between the accident and the breath samples. Any finding relating
    to Ms. Roberts blood alcohol level at the time of driving depended, therefore,
    on expert toxicological evidence explaining what Ms. Roberts blood alcohol
    level would have been at the time of driving, given the breath sample readings
    that she later produced.

[100]

The Crown called
    Ms. Elliot as its toxicological expert. As indicated, based on factual assumptions
    she calculated Ms. Roberts blood alcohol level to have been over 200
    milligrams of alcohol in 100 millilitres of blood at the time of driving,
    whether the accident had occurred at 10:45 p.m., or immediately before 10:51.21
    p.m. when the 9-1-1 call was made.

[101]

A key assumption
    Ms. Elliot made in making these calculations was that it would take 15 minutes
    for the alcohol Ms. Roberts consumed to be fully absorbed into her blood
    stream. Ms. Elliot described this 15 minutes absorption assumption as conservative,
    intimating that alcohol absorption would likely have occurred more quickly.

[102]

When presented
    during cross-examination with studies conducted by other forensic scientists
    identifying a 30 minutes average absorption time, Ms. Elliot said that she would
    not dispute the numbers. She nonetheless affirmed in re-examination that this
    information did not change her opinion about the propriety of using a 15
    minutes alcohol absorption assumption in making her calculations.

[103]

Ms. Roberts
    sought to counter Ms. Elliots evidence by marshalling her testimony about her
    drinking pattern into a bolus drinking defence. She claimed that she consumed a
    significant amount of alcohol shortly before leaving the bar. She then called
    Dr. Ward to offer an opinion that would raise a reasonable doubt about whether
    enough of that alcohol would have been absorbed into her blood stream by the
    time of the accident to put her blood alcohol level over the legal limit.

[104]

Dr. Ward
    testified that, in his opinion, the proper absorption window to use in making
    such calculations is 30 minutes. This was based on his personal experience and
    studies he relied upon. He offered the opinion that, based on the blood alcohol
    readings obtained by Cst. Maxwell at 1:11 a.m. and 1:40 a.m., if Ms. Roberts drank
    alcohol in the quantity and pattern she testified to, her blood alcohol content
    at 10:45 p.m. would have been below the legal limit of 80 milligrams of alcohol
    in 100 millilitres of blood at the time of driving.

[105]

During
    cross-examination, Dr. Ward was asked what Ms. Roberts blood alcohol level
    would have been at 10:51 p.m., assuming that, of the alcohol she had consumed,
    one ounce of hard liquor was ingested between 10:15 p.m. and 10:18 p.m. Dr. Ward
    replied that, assuming the one ounce was fully absorbed by 10:51 p.m., her
    blood alcohol level at 10:51 p.m. would be somewhere between 69 and 98
    milligrams of alcohol in 100 millilitres of blood. Put simply, the potential
    range of blood alcohol readings would straddle the legal limit of 80 milligrams
    of alcohol in 100 millilitres of blood. Dr. Ward added, however, that he was
    confident that the one ounce of alcohol would not have been absorbed into her
    system in the additional five minutes between 10:45 p.m. and 10:51 p.m.

[106]

Prior to the
    jury charge, counsel for Ms. Roberts asked the judge to direct the jury that
    straddle evidence is capable of raising a reasonable doubt about whether Ms.
    Roberts blood alcohol level was over the legal limit at 10:51 p.m. Defence
    counsel relied on the decision in
R. v. Ibanescu
, 2013 SCC 31,

[2013]
    2 S.C.R. 400, in making this request.

[107]

The trial judge
    declined. He explained that the straddle cases are distinguishable because they
    involved efforts by the Crown to rely on the statutory presumption of identity
    to prove the blood alcohol level of the accused, rather than expert evidence,
    as was relied upon in Ms. Roberts prosecution. Apparently referring to
Ibanescu
,
    the trial judge said that there are other cases holding that straddle
    evidence is not evidence to the contrary, and that instead of telling the
    jury this, it would be fairer to Ms. Roberts to leave it to the jury to decide
    what they think.

[108]

When the trial
    judge charged the jury, he did not direct the jury on how to deal with straddle
    evidence. Counsel for Ms. Roberts again requested that the jury be recharged on
    the use of straddle evidence, but to no avail.

[109]

The Crown
    contends that, in his charge, the trial judge addressed the defence experts relevant
    evidence in considerable detail. I disagree. The charge gave no guidance on how
    straddle evidence was to be used. In context, the reference in the charge to
    the potential for the defence experts evidence to raise a reasonable doubt would
    have been understood as relating to Dr. Wards testimony that Ms. Roberts did not
    have over 80 milligrams of alcohol in 100 milligrams of blood at 10:45 p.m.

[110]

In my view, some
    of the reasons offered by the trial judge for not giving a straddle evidence
    direction are problematic. The fact that decided cases dealing with straddle evidence
    involved challenges to the presumption of identity is immaterial. The impact of
    straddle evidence on reasonable doubt is equally relevant where blood alcohol
    calculations are done by expert witnesses.

[111]

Moreover,
Ibanescu
, at para. 3,
is an authoritative
    recognition by the Supreme Court of Canada that straddle evidence  may be
    capable of raising a reasonable doubt as to whether the accuseds blood
    alcohol content exceeded the legal limit at the time of driving. The existence
    of other cases holding that straddle evidence is not evidence to the contrary is
    immaterial because those cases are inconsistent with the law expressed in
Ibanescu
.

[112]

Having said
    this, straddle evidence has a narrow strike zone because its probative value
    tends to be too low to raise a reasonable doubt:
R. v. Snider
, 2014
    ONSC 1149, 63 M.V.R. (6th) 97, at para. 29. As LeBel J. observed in
R. v.
    Gibson
, 2008 SCC 16, [2008] 1 S.C.R. 397, at paras. 55 and 67-68, elimination
    rates vary from person to person and in each person, depending on a number of
    factors. This dilutes the probative value of straddle evidence, absent expert
    testing of the individuals elimination rates under conditions similar to those
    that were in place prior to the time of driving. In this case, neither party
    offered testing of Ms. Roberts elimination rate.

[113]

Moreover, LeBel
    J. commented in
Gibson
, at para. 73, that a wide straddle range,
    particularly where the straddle range does not fall overwhelmingly under the
    legal limit, is not apt to raise a reasonable doubt because such evidence has
    little tendency to prove that the accuseds blood alcohol level was under the
    legal limit. The straddle range in this case was wide, almost 30 milligrams of
    alcohol in 100 millilitres of blood, and close to two-thirds of the range fell
    over the legal limit.

[114]

In this case the
    straddle evidence was of secondary importance. It took on significance only if
    the accident occurred at 10:51 p.m. That time of driving depended on Ms.
    Whytes estimate that she probably made the 10:51:21 p.m. 9-1-1 call less
    than a minute after the collision. Yet, there was evidence that the accident
    took place 6 minutes before that.

[115]

More
    importantly, Dr. Ward, who provided the straddle evidence, discounted its
    importance himself. The straddle evidence scenario he offered depended upon
    complete absorption of the critical one ounce of alcohol. Yet Dr. Ward offered
    the opinion that this one ounce would not have been fully absorbed at 10:51 p.m.
    In Dr. Wards opinion, even on the consumption scenario presented in the
    hypothetical, Ms. Roberts blood alcohol level would have been entirely under
    the legal limit. In effect, his evidence was that there was no straddle.

[116]

Accordingly, for
    the jury to even face a straddle evidence problem, it would have to: find that
    the accident may have happened at 10:51 p.m., instead of the more likely
    estimate of 10.45 p.m.; prefer Ms. Elliots opinion about a 15-minute
    absorption time to Dr. Wards 30-minute absorption time; and accept Dr. Wards
    calculations on the hypothetical raised in cross-examination. Simply put, this
    issue was not at the heart of the case.

[117]

The Crown argues
    it was within the discretion of the trial judge to choose not to give a
    straddle evidence charge given the complexity of the required jury charge, and
    the fact that a straddle evidence direction would not have been favourable to Ms.
    Roberts. I agree, particularly given the low probative value of the evidence
    and the unimportance of the issue. The trial judges decision not to charge the
    jury on the straddle evidence issue was in keeping with the role of the trial
    judge in separat[ing] the wheat from the chaff when deciding what defences
    may be applicable:
R. v. Rodgerson
, 2015 SCC 38, [2015] 2 S.C.R. 760,
    at para. 52.

[118]

I would dismiss
    this ground of appeal.

F.

Ground of Appeal 6  the Unfair Conduct of Crown Counsel

[119]

Ms. Roberts
    takes issue with the manner in which the trial Crown conducted the case. She
    argues that the trial Crown unfairly manufactured an inconsistency about
    whether Ms. Roberts turned around at a private service road or an intersection,
    and engaged in sarcastic comments and inflammatory language when questioning Ms.
    Roberts. I agree that the trial Crown did not achieve perfect professional
    restraint, but I do not agree that a miscarriage of justice has occurred. I
    would dismiss this ground of appeal.

[120]

Canadian courts
    have repeatedly stressed that Crown prosecutors are not simply advocates; they
    are ministers of justice:

R. v. Boucher
(1954)
, [1955] S.C.R. 16. This may be
    trite, but it is important. Crown prosecutors are expected to press their
    position firmly and advance their position effectively, even with a degree of
    rhetorical passion:
R. v. Khairi
, 2015 ONCA 279, at para. 13; and
R.
    v. Boudreau
, 2012 ONCA 830,

at para. 15, leave to appeal refused,
    [2013] S.C.C.A. No. 330. Crown prosecutors must, however, temper their
    advocacy. They are not to appeal to emotion by engaging in inflammatory
    rhetoric, demeaning commentary or sarcasm:
R. v. Mallory
, 2007 ONCA
    46, 217 C.C.C. (3d) 266, at para. 340
per curiam
. Nor are they to
    corrupt the fair reach of evidence in their submissions by suggesting that
    there are inconsistencies when there are not.

[121]

The legal
    standard for appellate intervention, however, is not perfection, or even
    faithful comportment with the ethical obligations that mirror these and related
    rules. The question on an appeal is about effect, not performance. The crucial
    question is whether, in the context of the trial as a whole, breaches of the
    limits of proper prosecutorial advocacy have caused a substantial wrong or
    miscarriage of justice, including by prejudicing the right to a fair trial:
R.
    v. Sarrazin
, 2016 ONCA 714, at para. 57. In my view, the Crowns conduct
    in this case falls far short of causing a miscarriage of justice or prejudicing
    a fair trial.

[122]

There is nothing
    to the complaint about the unfair manufacture of an inconsistency relating to
    the intersection and the service road. The trial Crown was entitled to
    challenge Ms. Roberts conception of what an intersection is, in order to
    develop the Crown theory that Ms. Roberts improved, for trial, her narrative
    about her decision to return to the gas station.

[123]

There is more to
    the sarcasm point. For example, the trial Crown challenged Ms. Roberts explanation
    for leaving the bar when she did by asking: Why do you have to leave at 10:30?
    You are adult. He suggested to her that her memory was unreliable because her memory
    is that of a mind that at the time was drowning in alcohol. Over objection,
    he confronted Ms. Roberts with being pissed and hammered, until the trial
    judge admonished him to be more delicate.

[124]

Sarcasm does not
    make guilt more apparent. What it does is diminish the dignity of court
    proceedings. Using inflammatory language does not advance reasoning. It invites
    emotion instead. It would have been better if the trial Crowns cross-examination
    of Ms. Roberts had been more tempered. This is not a record, however, on which
    the outcome of a trial should falter. There is no reasonable basis for
    apprehending that the result of the trial was influenced by the isolated
    impudent questions and comments that have been identified, or that the trial
    was or has resulted in a miscarriage of justice.

CONCLUSION

[125]

In my view, none
    of Ms. Roberts grounds of appeal succeed. I would dismiss her appeal.

Released: May 1, 2018 (J.L.)

David M.
    Paciocco J.A.

I agree.
    John Laskin J.A.

I agree.
    B.W. Miller J.A.





[1]
Essentially, she claimed that at the time of the accident she was not impaired
    and her blood alcohol level was below the legal limit because, as the result of
    her last minute drinking before leaving the restaurant, much of the alcohol she
    had consumed had yet to be absorbed into her body when she stopped driving.



[2]
Parallel
s. 7 protection was recognized in
Weintz
.


