


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brode, 2012
    ONCA 140

DATE: 20120306

DOCKET: C53296

Rosenberg, MacPherson and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kevin Brode

Appellant

Frank Miller, for the appellant

Scott Latimer, for the respondent

Heard: September 8, 2011

On appeal from the decision of the Summary Conviction
    Appeal Court dated February 3, 2011 by Justice S. Rogin of the Superior Court
    of Justice, dismissing the appeal from the conviction entered on September 2,
    2008 by Justice G. Campbell of the Ontario Court of Justice.

Epstein J.A.:

A.

OVERVIEW

[1]

This appeal involves a particular aspect of the frequently considered
    tension between the individual rights of motorists and the broad societal
    concern over the harm caused by those who drink and drive.  The focus of this
    appeal is the vast number of motorists who daily enter Canada from the United
    States who are required to stop and interact with border services officers
    (BSOs).  The issue involves the ability of certain specifically designated BSOs
    to gather evidence of insobriety of drivers crossing the border into Canada.

[2]

One such driver is the appellant, Kevin Brode, who was convicted by a
    judge of the Ontario Court of Justice of impaired driving. The appellant was
    convicted based on the evidence of two such designated BSOs upon his entry into
    Canada from the United States. This evidence consisted of signs of impairment
    the two designated BSOs observed as the appellant got out of his car at their
    direction and immediately thereafter.  The observations were made after the
    appellant was detained but before he was advised of his rights under s. 10(b)
    of the
Canadian Charter of Rights and Freedoms
.

[3]

The appellants appeal to the Superior Court was dismissed.  He appeals
    to this court pursuant to leave granted in respect of an issue raised for the
    first time before the summary conviction appeal court judge (SCAJ): the
    admissibility of the evidence of the two designated BSOs concerning their
    observations of the appellant.

[4]

Before this court, the appellant seeks leave to argue an additional
    issue: whether the decision of the SCAJ is in conflict with at least one other
    judgment of the Ontario Superior Court; namely,
R. v. Iannotta
, [2009]
    O.J. No. 5181. The alleged conflict necessarily involves the interpretation of
    two previous cases of this court;
R. v. Quenneville
, 2009 ONCA 325,
    [2009] O.J. 1549 and
R. v. Milne
(1996), 107 C.C.C. (3d) 118, both of
    which deal with the admissibility of observations of insobriety made by a peace
    officer while carrying out  authorized duties.

[5]

I would dismiss the appeal.  In my view, while making the observations
    they did of the appellant, the designated BSOs were acting within their
    authority and, on this record, there was no reason to exclude their evidence.

[6]

I am not persuaded that leave to appeal the second issue is required. I
    agree with the submission made by counsel for the appellant in oral argument
    that the legal principles developed in
Milne
,
Quenneville
, and
Iannotta
are intertwined with the issue for which leave was specifically granted. I
    will therefore address them within my analysis of the admissibility of the
    observations of the two designated BSOs.  As my reasons will show, I see no
    conflict arising from these cases.

B.

THE BACKGROUND

(1)

Facts

[7]

On September 8, 2006, the appellant, a Canadian citizen entering Canada
    at Windsor Ontario, stopped his car at a Canadian Customs booth staffed by BSO
    Rohrer.  Pursuant to his authority and duties under the
Customs Act
,
    R.S.C. 1985, c. 1 (2nd Supp,), Rohrer asked the appellant routine questions
    about his citizenship, the length of time he spent outside of Canada, and his place
    of residence.

[8]

During the course of this interaction, Rohrer noticed signs of
    impairment: the appellants speech was slurred, his eyes were a little glossy
    and red, and there was a small, faint smell of alcohol on his breath. 
    Rohrer asked the appellant if he had been drinking.  The appellant responded
    that he had consumed three drinks. Based on his view that the appellant was
    intoxicated, Rohrer requested that he turn his car off and hand over the keys. The
    appellant complied.

[9]

Rohrer called for a BSO designated under the
Customs Act
as
    having powers under specific sections of the
Criminal Code
to respond to
    suspected impaired drivers.

[10]

When
    designated BSOs OHearn and Rutherford arrived at the scene,   Rohrer told them
    about his observations of the appellant, including the appellants statement
    about his alcohol consumption. OHearn and Rutherford testified that during
    this time the appellant was putting chewing gum into his mouth.

[11]

The
    appellant was directed to get out of the car.  OHearn testified that the
    appellant stumbled as he left the car, had bloodshot eyes, smelled of alcohol,
    and spoke in a loud and cocky manner.   Based on these observations, OHearn
    formed the opinion that the appellants ability to drive was impaired. The
    appellant again acknowledged  this time to OHearn  that he had been
    drinking.

[12]

OHearn
    testified that at that point he had more than enough indicators to believe that
    [the appellant] was impaired, and therefore arrested him for impaired
    driving.  He cautioned the appellant and advised him of his rights to counsel
    under s. 10(b) of the
Charter
.

[13]

Rutherfords
    evidence about her interaction with and observations of the appellant was much
    the same as OHearns.

[14]

Later,
    at approximately 10:25 p.m., Constable Kerekes of the Windsor Police Services attended
    the customs detention area to take the appellant to the police station. 
    Kerekes detected a slight smell of alcohol on the appellant, but formed no
    opinion about his ability to drive.

[15]

On
    his arrival at the station, the appellant initially declined an offer to use the
    telephone to call a lawyer but later changed his mind. A breath test was
    administered before the appellant was able to make contact with a lawyer.

[16]

The
    appellant was charged with impaired operation of a motor vehicle and exceeding
    the blood alcohol maximum, pursuant to ss. 253(a) and (b) of the
Criminal
    Code
, respectively. On the basis of the Crowns acknowledgement that the
    second count could not be made out, the charge of over 80 was dismissed.  The
    appellant was convicted of impaired operation.

(2)

The Legislative Background

[17]

The
Customs Act
regulates the movement of goods and people into and out of
    Canada. To this end, certain provisions require individuals coming into the
    country to present themselves to officers empowered to detain and question
    them, perform searches and examinations, and seize goods.

[18]

Prior
    to 1998, officers at the border had authority to investigate or detain individuals
    only in respect of matters relating to the
Customs Act
. They did not
    have authority to follow up on concerns that individuals with whom they engaged
    while performing their duties might be driving vehicles across the border into
    Canada while their ability to do so was impaired.  This gap in the powers of
    BSOs became a matter of public concern.  Parliament responded through the
    passage of Bill C-18, the impetus of which can be appreciated through the
    following comment of the Parliamentary Secretary to the Minister of National
    Revenue, made at the time of Bill C-18s Second Reading (House of Commons
    Debates, 32 (18 November 1997) at 1115 (Sue Barnes)):

I can think of tales from across Canada of people not being
    able to detain those they suspected of drinking and then later those people
    getting into accidents. The safety of not only our peace officers but of
    Canadians is the number one area we are concerned with in this piece of
    legislation.

[19]

As
    a result of the Bill, s. 163.5 was introduced into the
Customs Act.
Generally, it gives designated BSOs additional powers to respond to drivers
    crossing the border into Canada who are suspected of being impaired.
[1]


[20]

At
    the time of the appellants arrest on September 8, 2006, s. 163.5 of the
Customs
    Act
read as follows:

Powers of designated officers

163.5(1)
In addition to the powers conferred on an
    officer for the enforcement of this Act, a designated officer who is at a
    customs office and is performing the normal duties of an officer or is acting
    in accordance with section 99.1 has, in relation to a criminal offence under
    any other Act of Parliament, the powers and obligations of a peace officer
    under sections 495 to 497 of the
Criminal Code
, and subsections 495(3)
    and 497(3) of that Act apply to the designated officer as if he or she were a
    peace officer
.

Impaired driving offences

(2)
A designated officer who is at a customs office
    and is performing the normal duties of an officer or is acting in accordance
    with section 99.1 has the powers and obligations of a peace officer under
    sections 254 and 256 of the
Criminal Code
and may, on demanding samples
    of a persons blood or breath under subsection 254(3) of that Act, require that
    the person accompany the officer, or a peace officer referred to in paragraph (
c
)
    of the definition peace officer in section 2 of that Act, for the purpose of
    taking the samples.

Power to detain

(3)
A designated officer who arrests a person in
    the exercise of the powers conferred under subsection (1) may detain the person
    until the person can be placed in the custody of a peace officer referred to in
    paragraph (
c
) of the definition peace officer in section 2 of the
Criminal
    Code
.

Limitation on powers

(4)
A designated officer may not use any power
    conferred on the officer for the enforcement of this Act for the sole purpose
    of looking for evidence of a criminal offence under any other Act of
    Parliament.

[21]

As
    can be seen, the powers bestowed upon designated BSOs are limited to those of a
    peace officer under sections 495 to 497 and sections 254 and 256 of the
Criminal
    Code
.

[22]

Sections
    495, 496, and 497 of the
Criminal Code
specify the powers of a peace
    officer to arrest without a warrant, to issue an appearance notice where an
    officer decides not to arrest a person, and to release a person who has been
    arrested without a warrant.

[23]

At
    the time of the appellants arrest, the relevant parts of section 254 of the
Criminal
    Code
provided as follows:

254
...

Testing for presence of alcohol in the blood

(2)
Where a peace officer reasonably suspects that a
    person who is operating a motor vehicle or vessel or operating or assisting in
    the operation of an aircraft or of railway equipment or who has the care or
    control of a motor vehicle, vessel or aircraft or of railway equipment, whether
    it is in motion or not, has alcohol in the persons body, the peace officer
    may, by demand made to that person, require the person to provide forthwith
    such a sample of breath as in the opinion of the peace officer is necessary to enable
    a proper analysis of the breath to be made by means of an approved screening
    device and, where necessary, to accompany the peace officer for the purpose of
    enabling such a sample of breath to be taken.

Samples of breath or blood where reasonable belief of
    commission of offence

(3)
Where a peace officer believes on reasonable
    and probable grounds that a person is committing, or at any time within the
    preceding three hours has committed, as a result of the consumption of alcohol,
    an offence under section 253 [impaired operation of a motor vehicle], the peace
    officer may, by demand made to that person forthwith or as soon as practicable,
    require that person to provide then or as soon thereafter as is practicable

(
a
) such samples of the persons breath as in
    the opinion of a qualified technician, or

(
b
) where the peace officer has reasonable and
    probable grounds to believe that, by reason of any physical condition of the
    person,

(i) the person may be
    incapable of providing a sample of his breath, or

(ii) it would be
    impracticable to obtain a sample of the persons breath,

such samples of the persons blood,
    under the conditions referred to in subsection (4), as in the opinion of the
    qualified medical practitioner or qualified technician taking the samples are
    necessary to enable proper analysis to be made in order to determine the
    concentration, if any, of alcohol in the persons blood, and to accompany the
    peace officer for the purpose of enabling such samples to be taken.

[24]

Section
    256 of the
Criminal Code
addresses warrants to obtain blood samples and
    is not at issue in this appeal.

[25]

On
    the basis of its wording at the time, the effect of s. 163.5 of the
Customs
    Act
can be summarized as follows.  In relation to any criminal offence
    under any Act of Parliament, a designated BSO under the
Customs Act
has
    the powers and obligations of a peace officer under ss. 495-497 of the
Criminal
    Code
to arrest without a warrant a person where there are reasonable and
    probable grounds to believe he or she has committed an indictable offence or is
    about to commit such an offence.  A designated BSO may also, where he or she
    has reasonable grounds to suspect impaired operation of a motor vehicle, make
    demands for samples of a person's breath, or in some circumstances samples of a
    persons blood. The designated BSO may also require that a person accompany him
    or her for the purpose of taking samples, and may detain that person until they
    can be placed in the custody of a peace officer.

[26]

There
    is a limitation on these powers: a designated BSO may not use any power
    conferred for the enforcement of the
Customs Act
for the sole purpose of
    looking for evidence of a criminal offence under any other Act of Parliament.

(3)

Prior Judicial Proceedings

(a)

The Trial

[27]

At
    trial, the appellant defended the charges against him on the basis that his
    rights under s. 10(b) of the
Charter
had been breached and that the Crown
    was unable to demonstrate beyond a reasonable doubt that he was impaired while
    in the care or control of his car at the time he crossed the border into
    Canada.

[28]

In
    support of the
Charter
argument, the appellant submitted that the Crown
    had not provided him with adequate time to speak to counsel before
    administering the breath test.  The breath sample was therefore conscripted
    evidence.  Campbell J. rejected this argument on the basis that the evidence
    demonstrated that the appellant was not diligent in asserting his s. 10(b)
    rights and therefore the holding off requirement was not engaged.

[29]

After
    dismissing the
Charter
argument, the trial judge found that the evidence
    of impairment was sufficient and convicted the appellant of impaired driving.

(b)

The Summary Conviction Appeal

[30]

Before the summary conviction appeal court, the appellant argued that
    all of the significant evidence upon which the trial judge relied to support
    the conviction related to observations made by the designated BSOs between the
    time he was directed to get out of the car and the time when his s. 10(b)
    rights were given (the impugned evidence).  This evidence included observations
    of the appellants stumbling as he got out of his car, his bloodshot eyes, the
    odour of alcohol, and his speaking in a loud and cocky manner. The appellant
    argued that at the time these observations were made, the designated BSOs were engaged
    in conduct designed to gather evidence of impairment against him.  Relying on
    the Supreme Courts decision in
R. v. Orbanski
,

2005 SCC 37,
    [2005] 2 S.C.R. 3, the appellant argued that only  evidence flowing from observations
    the designated BSOs made of him while carrying out authorized duties, is
    available as evidence of impairment.  Since designated BSOs have no authority
    to investigate or gather evidence of impairment, the observations they made were
    not admissible to prove impairment.

[31]

In
    a brief endorsement, Rogin J. concluded that the impugned evidence was
    comprised of general observations the designated BSOs made while carrying out
    authorized duties.  He held that the decisions in
Milne
and
Quenneville
therefore governed.  Since there was no reason to exclude the evidence, the
    appeal was dismissed.

(c)

The Application for Leave
    to Appeal to this Court

[32]

In his endorsement of June 20, 2011, Blair J.A. described the issue the
    appellant raised in his application for leave to appeal to this court as a
    narrow point of law regarding the ability of BSOs to gather evidence of
    insobriety at border crossings into Ontario.  He identified this as an issue
    that applied to many situations and therefore touched the administration of
    justice as a whole, and granted leave.

C.

ISSUES

[33]

In
    the order of Blair J.A., the appellant was granted leave to appeal the grounds
    set out in his notice of appeal:

1.

The SCAJ erred in finding that evidence of observations of insobriety
    the designated BSOs made after the appellant was directed to get out of his
    care  are admissible to prove impairment absent compliance with s. 10(b) of the
Charter
.

2.

The SCAJ erred in finding that designated BSOs investigating suspected
    impaired drivers have the same roadside screening powers as police officers
    investigating the same conduct within Canada.

3.

The SCAJ erred in finding that observations made of the conduct of
    suspected impaired drivers was not compelled incriminatory evidence and thus
    inadmissible.

[34]

While
    the appellant expressed the grounds in this fashion, in my view, the issue is best
    summarized by Blair J.A. in his endorsement - "the ability of BSOs to
    gather evidence of insobriety at border crossings". As previously noted,
    the appellant's contention that the decision of the SCAJ raises a possible
    conflict in the jurisprudence in this area is addressed within my analysis of
    this issue.

D.

ANALYSIS

[35]

The
    appellant advances two main points.

[36]

First,
    he submits that the impugned evidence could only be admissible against him as
    evidence of impairment if the observations were made in the course of conduct
    in which the designated BSOs were authorized to engage.  Designated BSOs have
    no authorized investigative powers at common law or by operation of statute. 
    It follows, argues the appellant, that at the time they made the observations
    that formed the basis of the impugned evidence, the designated BSOs were
    engaged in unauthorized conduct and the evidence is therefore not available to
    prove impairment.

[37]

Second,
    the appellant contends that even if the designated BSOs had the authority to
    take steps to gather indicia of insobriety, the record supports the finding
    that their request that he get out of his car was itself for the purpose of
    screening for sobriety.  That is, the designated BSOs intended that the actual
    act of the appellants getting out of the vehicle would be a sobriety test. The
    appellant submits that because the evidence available as a result of that direction
     the BSOs testimony that he stumbled as he got out of the car   could not
    have been obtained but for his participation, and was obtained prior to his
    being advised of his s. 10(b) rights, its use would tend to render the trial
    process unfair.  The evidence is therefore inadmissible. I will refer to this
    as the 
Milne
 issue.

[38]

As
    a factor that should inform the analysis, the appellant submits that designated
    BSOs are in a unique position.  The
Customs Act
gives them powers that
    would be constitutionally impermissible if exercised over individuals already in
    Canada. Sections 11, 153.1, and 160(1) of the Act make it an offence for those
    seeking entry into Canada to fail to answer truthfully any questions asked by a
    BSO in the performance of his or her duties or otherwise to interfere with or
    prevent a BSO from exercising his or her authority under the Act. This includes
    the authority designated BSOs have under s. 163.5. The point the appellant
    advances is that since individuals crossing the border into Canada can, by
    virtue of other provisions in the
Customs Act,
be compelled to provide
    self-incriminating evidence, the protection against self-incrimination
    militates even more strongly against the use of certain evidence in the context
    of border crossings.

(1)

The authority of designated BSOs to gather evidence

[39]

The
    appellant submits that designated BSOs have only the powers that peace officers
    expressly have under ss. 254 and 256 of the
Criminal Code,
Outside of
    this narrow scope, they do not have other powers of peace officers.  They do
    not have the powers of police officers.  As a result, their powers do not include
    the ability to take steps to gather indicators of insobriety before making a
    demand for a breath or blood sample. Their powers are limited to making
    observations based on their interaction with people in the normal discourse
    involving Customs matters.  If these observations give rise to a concern that
    an individual driving a car into Canada may be impaired, designated BSOs may
    demand that he or she provide a breath sample and may exercise arrest and
    detention powers under ss. 495 to 497 of the
Criminal Code.
.

[40]

The
    interpretation of s.163.5 of the
Customs Act,
is central to the
    determination of the powers of designated BSOs.

[41]

The
    fundamental principles of statutory interpretation direct that the words of a
    statute be read in their entire context and in their grammatical and ordinary
    sense harmoniously with the scheme of the Act, the object of the Act, and the
    intention of the legislature: see
Rizzo & Rizzo Shoes Ltd. (Re)
,
    [1998] 1 S.C.R. 27, at para. 21; see also
Bell Expressive Limited Partnership
    v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para.26.

[42]

As
    it was worded at the relevant time, s. 163.5 of the Act did not expressly give designated
    BSOs the power to take steps to gather evidence of insobriety. However, in my
    view, such power can be found in the ancillary powers doctrine, grounded in the
    common law and codified in s. 31(2) of the
Interpretation Act
, R.S.C.
    1985, c. I-21:

31(2) Where power is given to a person, officer or functionary
    to do or enforce any act or thing, all such powers as are necessary to enable
    the person, officer or functionary to do or enforce the doing of the act or
    thing are deemed to be also given.

[43]

The
    appellant argues that designated BSOs are not peace officers, as defined by s. 2 of
    the
Criminal Code,
and  have neither the common law powers of police
    officers nor any implied power other than that set out in the
Customs Act.


[44]

I
    agree that BSOs do not share the general duty of police officers to prevent
    crime and protect life and property. Consequently, they do not have the
    complete set of ancillary powers of police officers that flow from that general
    duty. However, in my view, the common law investigative powers recognized in
R.
    v. Waterfield
, [1963] 3 All E.R. 659 (C.C.A.), for police officers apply to
    designated BSOs exercising their authority under s. 163.5 of the
Customs
    Act.


[45]

It
    is clear that through the s. 163.5 amendments to the
Customs Act
, Parliament
    intended to confer authority on BSOs, so far as constitutionally permitted, to prevent
    the impaired operation of motor vehicles at entry points into Canada - a duty
    indistinguishable from that held by police officers to prevent the impaired
    operation of motor vehicles within Canada.  It follows, in my view, that the
    power to gather evidence of insobriety is necessary to enable designated BSOs
    to comply with the important obligations associated with responding to the
    significant threat of harm posed by motorists suspected of being impaired as
    they drive their vehicles into Canada.  In the limited circumstances of their
    authority under the
Customs Act,
insofar as designated BSOs have the
    same obligations as police officers, so too should they have the same ancillary
    investigative powers.

[46]

This
    conclusion is further supported by the illogical outcome that would ensue if the
    restrictive interpretation suggested by the appellant were to ensue.  Without
    the power to gather evidence of sobriety many individuals would unnecessarily be
    subjected to breath or blood sample demands in circumstances where less
    intrusive and less costly investigative steps may prove that initial concerns
    regarding potential impairment were not warranted.

[47]

In
    my opinion, therefore, s. 31(2) of the
Interpretation Act
is a full
    answer to the appellants contention that the ancillary powers doctrine cannot
    be applied to designated BSOs because they are not police officers.

[48]

It
    follows that at the time of the appellants detention, the designated BSOs,
    acting pursuant to their s. 163.5(3) authority to fulfill their duties and
    obligations under ss. 254, 256 and 495-497 of the
Criminal Code,
had the
    same inferred ancillary investigative powers as police officers who detain a
    motorist under s. 48(1) of the
Highway Traffic Act
, R.S.O. 1990, c. H.8.
[2]


[49]

The
    limits of the authority designated BSOs have to investigate suspected impaired
    driving can be determined by reference to both the general common law test for
    ancillary powers and the particular powers that peace officers investigating
    instances of impaired driving within Canada have been found to possess.

[50]

Generally
    speaking, the common law ancillary powers doctrine establishes that where the
    conduct of a police officer is
prima facie
unlawful interference with a
    persons liberty, the court must consider whether the conduct (a) falls within
    the general scope of any duty imposed by statute or recognized at common law
    and (b) involves an unjustifiable use of powers associated with the duty: see
Waterfield
;
R. v. Dedman
(1985), 20 C.C.C. (3d) 97 (S.C.C), at pp. 119-122; see also
R. v. Monney
(1997), 120 C.C.C. (3d) (Ont. C.A.), at para. 83, reversed on unrelated grounds [1999] 1 S.C.R. 652.

[51]

The
    ancillary powers of police officers to investigate impaired driving have been specifically
    considered by this court in
R. v. Saunders
(1988), 41 C.C.C. (3d) 532,
    and in
R. v. Smith
(1996), 105 C.C.C. (3d) 58.

[52]

In
Saunders
, Cory J., writing for the court, held, at p. 539, that an officer
    can take reasonable steps to determine whether there is evidence to justify
    making a demand under s. 238 [now s. 254] of the
Criminal Code
.

[53]

In
Smith
, Doherty J.A. addressed the scope of such reasonable steps and
    clarified, at p. 73, that while an exhaustive list of appropriate procedures
    cannot be provided, a procedure cannot be reasonable within the meaning of s.
    48 [of the
Highway Traffic Act, infra
] unless it can be performed at the
    site of the detention, with dispatch, with no danger to the safety of the
    detainee and with minimal inconvenience to the detainee. On the facts of that
    case, a standing sobriety test met the requirements and was a reasonable step
    performed to determine whether an officer had reasonable and probable grounds
    to believe that the individual was impaired and could be subjected to a breath
    sample demand.

[54]

I
    therefore conclude that in the circumstances of this case, OHearn and
    Rutherford had the power to take reasonable steps in order to determine whether
    grounds existed for a s. 254 demand.  Here, the step taken was to direct the
    appellant to get out of his vehicle in order to gather additional indicators of
    his sobriety.  According to the considerations set out in
Smith
, the
    step was reasonable.

[55]

Given
    my conclusion that the powers of designated BSOs extend to gathering evidence, I
    see no reason to depart from the well-established constitutional framework established
    in
Saunders
and subsequent authorities, in which, pursuant to s. 1 of
    the
Charter,
reasonable investigative steps may take place absent s.
    10(b) compliance.

[56]

I
    would therefore not give effect to this ground of appeal.

(2)

The
Milne
issue: was the request that the appellant get
    out of the vehicle itself a sobriety test?

[57]

In
Milne
, as here, the appellant was charged with impaired driving.  The
    police first observed him while he was in his car.  Evidence of impairment was
    noted.  A police officer asked the appellant to get out of his car.  Upon
    compliance, the appellant was subjected to various sobriety tests.  Following
    the failed tests, the appellant was arrested, cautioned and a formal demand for
    breath samples was made.  The readings indicated a blood-alcohol level in
    excess of the limit.  The appellant was convicted of impaired driving.

[58]

His
    summary conviction appeal was dismissed.

[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 appellants 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
    appellants 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. Ruttans testimony, and entirely distinguishable from those in
Quenneville
.
    The trial court, accordingly, erred in using the evidence of the appellants
    unsteadiness on his feet as substantive evidence of impairment.

[64]

The
    foundation of the appellants

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
Iannotta.


[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 OHearn] 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
    OHearn and I who wouldve 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.

(3)

What is the import of the authority granted to BSOs under ss.
    11, 153.1 and 160(1) of
Customs Act
?

[69]

As
    the appellant points out, there are differences between the legal rights of individuals
    detained and questioned by peace officers within Canada, and the legal rights
    of those detained by BSOs at a border crossing. It is, pursuant to ss. 11 and
    160(1) of the
Customs Act
, an offence to fail to answer truthfully any
    question posed by a BSO who is exercising his or her lawful authority.
    Similarly, it is an offence to interfere with, molest, hinder, or prevent a BSO
    in exercising his or her authority: see ss. 153.1 and 160(1) of the
Customs
    Act
.

[70]

These
    differences, however, are of no consequence to the issues raised in this
    appeal. As discussed above, the impugned evidence is comprised of general
    observations made while the designated BSOs were engaged in authorized
    activities.
Milne
and
Quenneville
clearly hold that such
    observations are admissible to prove impairment.

[71]

I
    am not saying that the differences between the legal rights of individuals
    detained and questioned as part of an impaired driving investigation at the
    border and those detained for the same purpose within Canada will never be a
    relevant consideration in considering the admissibility of evidence of
    impairment.  There may be circumstances in which the offence provisions of the
Customs
    Act
may affect the admissibility of such evidence.  However, no such
    circumstances arise in this case.

E.

Conclusion and disposition

[72]

I
    conclude that the BSOs who interacted with the appellant as he entered Canada
    on September 8, 2006 took investigative measures that were within the scope of
    the authority provided to them by Parliament to fill a necessary gap that
    previously existed in addressing the harm caused by impaired drivers crossing
    the border into Canada.  The evidence of insobriety they were able to provide
    at trial in support of the charge of impaired driving was obtained as a result
    of reasonable steps taken and not as a result of the appellants being
    compelled directly against himself, within the meaning of
Milne
,
Orbanski
,
    or
Quenneville
, and was therefore admissible on the issue of impairment.

[73]

For
    these reasons, I would dismiss the appeal.

Released: JCM                       G.J. Epstein J.A.

JCM                                                I
    agree M.C. MacPherson J.A.

I agree M.
    Rosenberg J.A.





[1]
Section 163.5 was the subject of minor amendments in 2001, and again in 2008,
    primarily to account for changes to s. 254 of the
Criminal Code.
Notably,
    s. 254 was amended in 2008 to provide officers with the express power to demand
    the performance of physical coordination tests: see 2001, c. 25, s. 84; 2008,
    c. 6, s. 59.



[2]
It is of note that both s. 163.5 of the
Customs Act
and s. 48(1) of the
Highway
    Traffic Act
lack express reference to related investigative powers.


