The appellant appealed his conviction for impaired care or control and care or control "over 80".
The appeal raised issues regarding the trial judge's assessment of impairment evidence, alleged breaches of Charter rights under s. 10(b) (right to counsel) and s. 9 (arbitrary detention/overholding), and the application of s. 24(2) of the Charter for exclusion of evidence.
The court dismissed the appeal, finding no error in the impairment assessment or s. 10(b) breach at the scene, but did find a s. 9 breach due to arbitrary overholding.
However, the court determined that the breath sample evidence was not "obtained in a manner" that infringed the s. 9 right, thus s. 24(2) exclusion was not warranted.
interesting_citations_summary: >
The decision clarifies the application of the "obtained in a manner" requirement under s. 24(2) of the Charter in the context of post-offence arbitrary detention (overholding) in impaired driving cases.
It distinguishes the broader contextual connection established in R. v. Edwards from the more limited application in drinking and driving cases, reaffirming the binding authority of R. v. Sapusak and R. v. Iseler where the breach is not causally or temporally connected to the evidence gathering.
It also reiterates principles of appellate deference to trial judge's factual findings and the "first reasonably available opportunity" standard for facilitating the right to counsel.
final_judgement: "The appeal is dismissed."
winning_degree_applicant: 5
winning_degree_respondent: 1
judge_bias_applicant: 0
judge_bias_respondent: 0
year: 2018
decision_number: 6475
file_number: "175/18-AP"
source: "https://www.canlii.org/en/on/onsc/doc/2018/2018onsc6475/2018onsc6475.html"
keywords:
- Criminal law
- Impaired driving
- Care or control
- Charter of Rights and Freedoms
- s. 10(b) right to counsel
- s. 9 arbitrary detention
- Overholding
- s. 24(2) exclusion of evidence
- "obtained in a manner"
- Appellate deference
areas_of_law:
- Criminal Law
- Constitutional Law
- Charter of Rights and Freedoms
cited_cases:
legislation:
- title: "Criminal Code, R.S.C. 1985, c.
C-46"
url: "https://laws-lois.justice.gc.ca/eng/acts/C-46/"
- title: "Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11"
url: "https://laws-lois.justice.gc.ca/eng/const/page-15.html"
case_law:
- title: "R. v. Morrissey"
url: "https://www.canlii.org/en/on/onca/doc/1995/1995canlii3498/1995canlii3498.html"
- title: "R. v. Sheppard, 2002 SCC 26"
url: "https://www.canlii.org/en/ca/scc/doc/2002/2002scc26/2002scc26.html"
- title: "R. v. Cornell, 2010 SCC 31"
url: "https://www.canlii.org/en/ca/scc/doc/2010/2010scc31/2010scc31.html"
- title: "R. v. Healey, 2012 BCCA 29"
url: "https://www.canlii.org/en/bc/bcca/doc/2012/2012bcca29/2012bcca29.html"
- title: "R. v. Tavone"
url: "https://www.canlii.org/en/on/onsc/doc/2007/2007canlii28090/2007canlii28090.html"
- title: "R. v. Find, 2001 SCC 32"
url: "https://www.canlii.org/en/ca/scc/doc/2001/2001scc32/2001scc32.html"
- title: "R. v. J.H."
url: "https://www.canlii.org/en/on/onca/doc/2005/2005canlii253/2005canlii253.html"
- title: "R. v. Suberu, 2009 SCC 33"
url: "https://www.canlii.org/en/ca/scc/doc/2009/2009scc33/2009scc33.html"
- title: "R. v. Taylor, 2014 SCC 50"
url: "https://www.canlii.org/en/ca/scc/doc/2014/2014scc50/2014scc50.html"
- title: "Bartle v. The Queen"
url: "https://www.canlii.org/en/ca/scc/doc/1994/1994canlii64/1994canlii64.html"
- title: "R. v. Lohrer, 2004 SCC 80"
url: "https://www.canlii.org/en/ca/scc/doc/2004/2004scc80/2004scc80.html"
- title: "R. v. Van Wyk"
url: "https://www.canlii.org/en/on/onsc/doc/1999/1999canlii14900/1999canlii14900.html"
- title: "R. v. Patrick, 2017 BCCA 57"
url: "https://www.canlii.org/en/bc/bcca/doc/2017/2017bcca57/2017bcca57.html"
- title: "R. v. Burns"
url: "https://www.canlii.org/en/on/onsc/doc/2000/2000canlii22400/2000canlii22400.html"
- title: "R. v. Iseler"
url: "https://www.canlii.org/en/on/onca/doc/2004/2004canlii34583/2004canlii34583.html"
- title: "R. v. Sapusak"
url: "https://www.canlii.org/en/on/onca/doc/1998/1998canlii14900/1998canlii14900.html"
- title: "R. v. Kavanagh, 2017 ONSC 430"
url: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc430/2017onsc430.html"
- title: "R. v. Waisanen, 2015 ONSC 5823"
url: "https://www.canlii.org/en/on/onsc/doc/2015/2015onsc5823/2015onsc5823.html"
- title: "R. v. Price, 2010 ONSC 1898"
url: "https://www.canlii.org/en/on/onsc/doc/2010/2010onsc1898/2010onsc1898.html"
- title: "R. v. Edwards (appeal by Pino), 2016 ONCA 389"
url: "https://www.canlii.org/en/on/onca/doc/2016/2016onca389/2016onca389.html"
- title: "R. v. Garrido-Hernandez, 2017 ONSC 2552"
url: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc2552/2017onsc2552.html"
- title: "R. v. Cheema, 2018 ONSC 229"
url: "https://www.canlii.org/en/on/onsc/doc/2018/2018onsc229/2018onsc229.html"
- title: "R. v. Coyle, 2013 ONSC 5104"
url: "https://www.canlii.org/en/on/onsc/doc/2013/2013onsc5104/2013onsc5104.html"
---
COURT FILE NO.: 175/18-AP
DATE: 2018-10-29
ONTARIO
SUPERIOR COURT OF JUSTICE
**BETWEEN:**
HER MAJESTY THE QUEEN Respondent
– and –
James Larocque Appellant
**COUNSEL:**
Kevin Ludgate, for the Respondent
Michael Venturi, for the Appellant
**HEARD:** September 20, 2018
---
# DECISION ON SUMMARY CONVICTION APPEAL
A.D. Kurke, J.
## Overview
[1] The appellant appeals against his February 23, 2018 conviction for Care or Control “Over 80”, contrary to section 253(1)(b), and against the finding of guilt on the companion charge of Impaired Care or Control, contrary to s. 253(1)(a) of the *Criminal Code of Canada*, R.S.C. 1985, c.
C-46.
[2] The appellant advances as grounds that the learned trial judge erred by:
a. not considering the totality of the evidence on the issue of impairment, and taking impermissible judicial notice of facts on the charge of impaired driving;
b. finding no breach of the appellant’s s. 10(b) Charter right as a result of:
i. the delay in giving the appellant his implementational right after his arrest at the scene; and
ii. her misapprehension of evidence relating to this alleged s. 10(b) violation;
c. finding no breach of the appellant’s s. 9 Charter right as a result of the police overholding of the appellant for seven and a half hours after his breath tests.
[3] For the following reasons, the appeal is dismissed.
## Background Facts
[4] On January 21, 2017, police officers with the Greater Sudbury Police Service observed a vehicle making an overly wide turn onto Highway 144 in Chelmsford, Ontario.
The vehicle was travelling below the speed limit, and almost struck a snowbank.
The officers turned around and followed the vehicle for a short distance.
It proceeded under the speed limit before turning left into a restaurant parking lot, nearly missing the entrance to the lot as it did so.
The vehicle stopped in the lot at 2:29 a.m.
[5] Cst.
Kiviaho approached the driver’s door, and observed a strong odour of alcohol.
The appellant’s speech was slurred, and his eyes glassy.
Based on his observations to this point, Cst.
Kiviaho demanded a breath sample from the appellant into an approved screening device.
The appellant was unsteady and swayed while walking to the cruiser with the officer, and had some difficulty getting in.
[6] The appellant registered a fail on the device at 2:40 a.m.
He was arrested and handcuffed at 2:43.
A search of his person yielded a cell phone.
At 2:45, back in the cruiser, Cst.
Kiviaho provided the appellant with rights to counsel and caution.
The appellant provided the police with his name and either gave them his address and cell phone number or they acquired it from the computer in their cruiser.
The appellant said that he wanted to talk to a lawyer.
[7] Cst.
MacRae, who was partnered with Cst.
Kiviaho, first dealt with other persons in the appellant’s vehicle, and then attended at the cruiser for the appellant’s arrest.
He called for a tow truck at 2:46, and then conducted an inventory search of the appellant’s vehicle, after which he returned to the passenger seat of the cruiser, at 2:50 a.m.
There, concerning the appellant, the officer observed the “very powerful” smell of alcohol, and that the appellant’s face was very flushed, his cheeks red, and his speech slurred and delayed.
The officer also described that the appellant had “trouble focussing” on him.
He described this phenomenon as “[h]is eyes …having trouble focussing”, the “spins”, and noted that they were “shifting from left to right”.
[8] They left the scene at 3:01 a.m. for the police station.
Between telling the appellant about his rights to counsel and cautioning him and leaving the scene, Cst.
Kiviaho remembered that he or Cst.
MacRae dealt with “preparing to transport him, requesting that a breath tech be made available, and also making arrangements to get the vehicle towed.” Sgt. Hotson was supposed to attend, and make sure that the appellant’s vehicle was secure.
There were “lots of things going on”.
Cst.
Kiviaho was trying to get a lot of things done “in a compressed amount of time.” This affected the detail that he could put in his notes, one of which the officer made “after [the appellant] was in the back [of the cruiser] and given his rights to counsel and such”.
Cst.
Kiviaho testified that 3:01 a.m. “would have been our first opportunity” to leave the scene.
[9] Cst.
MacRae did not recall any specific delays at the scene.
He performed crowd control on the four passengers in the appellant’s vehicle.
Police had to call the tow truck and await its attendance, an inventory search of the accused’s vehicle was done, and police ensured the safety of the other persons who had been in the appellant’s vehicle by calling a taxi for them.
The police did not wait for the tow truck to arrive or for the taxi to arrive.
Sgt. Hotson had attended, and could be left to deal with the remaining details at the scene.
[10] At police headquarters, after initial attempts to contact Mr. Keaney, the appellant’s first choice of counsel, yielded no result, police successfully facilitated a private conversation in a small room at the police station between the appellant and trial counsel at 3:30 a.m.
The appellant was ultimately handed over to the breath technician, Cst.
Lanzo, who knew the appellant from a prior occasion.
[11] Two samples of the appellant’s breath were analyzed by the approved instrument, resulting in readings of 223 milligrams and 214 milligrams of alcohol per 100 millilitres of blood, at 3:56 and 4:24 a.m., respectively.
Cst.
Lanzo observed a strong odour of alcohol coming from the appellant’s breath, his face was flushed, his eyes watery, and his speech slow and somewhat slurred.
[12] James Rajotte, a toxicologist, offered the opinion that, based on the approved instrument results, the appellant’s blood alcohol concentration between 2:15 and 2:30 a.m. would have been between 210 and 250 mgs of alcohol in 100 mls of blood.
A driver’s ability to operate a motor vehicle would be impaired at those readings.
[13] At 4:25 a.m., Cst.
Kiviaho received the appellant back into his custody, and was told that the readings were 220 and 210 milligrams of alcohol per 100 millilitres of blood.
The appellant was advised that the charges would be impaired driving and “over 80”.
At 4:26 a.m., Cst.
Kiviaho served on the appellant the certificate of a qualified technician, but the appellant refused to sign an acknowledgment of the notice.
At 4:32, Cst.
MacRae placed the appellant into a cell, “until sober in order to release”.
Cst.
Kiviaho testified that the appellant was escorted into the cells and told that he would not be released until he was sober to ensure that he could fully understand the conditions of release.
In fact, it was the acting staff sergeant who determined that the appellant should be held after providing breath samples.
That officer did not testify.
[14] At 6:25 a.m., Cst.
Kiviaho served various other documents on the appellant, who was “definitely awake and alert”, but still indicating that he would not sign anything.
Cst.
Kiviaho left copies of the documents with the appellant’s property in the locker.
Cst.
Kiviaho left from downtown at 6:48.
In his view, it was for the dayshift staff sergeant, who would have been on duty at that point, to determine when to release the appellant.
Cst.
Kiviaho was unable to say if the appellant was releasable at that point, because a “lot depends on the readings and the time that’s passed”.
That determination was not his, but rather was for the officer in charge, who did not testify.
[15] A promise to appear relating to the release of the appellant before an officer in charge, and introduced as an Exhibit on the trial, indicates a release time of 12:10 in the afternoon, the day of the appellant’s arrest.
[16] The case proceeded as a blended hearing, in which the trial issues and the Charter issues were dealt with concurrently.
After rulings on the Charter issues, the trial judge found the appellant guilty of both Impaired Care or Control and Care and Control “Over 80”.
The Impaired charge was conditionally stayed.
[17] The trial judge found a violation of the appellant’s right to consult counsel without delay as a result of a police error at the station in attempting to contact the appellant’s counsel of choice, Mr. Keaney, on his office phone rather than on his cell phone.
The appellant ultimately spoke with a different lawyer, the counsel who would become the appellant’s counsel at trial and on this appeal.
The trial judge found that the breach was occasioned by a mistake, and was minor.
The impact of that breach on the appellant was minor, and society’s interests favoured inclusion of the evidence.
No appeal is taken from those rulings.
[18] The trial judge found that no breach of s. 10(b) was occasioned by delays in leaving the scene.
She went on to hold that if she was in error, any such breach must be minor and no evidence was obtained during the relevant period, so it would have resulted in no exclusion of evidence.
[19] Concerning the overholding issue, the trial judge found that the appellant was held about seven and a half hours, but there was no evidence that the detention was longer than necessary.
Rather, “[t]he uncontroverted evidence in this regard is that the delayed release was to ensure the [appellant] was sober enough to be released and to understand the conditions of his release.” The trial judge held that the case for overholding or a Charter s. 9 breach had not been made out.
## ISSUE 1: The failure to consider all of the evidence
[20] The first of the appellant’s grounds is expansive, and involves assertions that the trial judge made various errors in assessing the evidence that was before her concerning proof of the appellant’s impairment.
As the appellant did not testify, his was not part of that evidence.
[21] The appellant complains that the trial judge failed to note various corrections and modifications to the evidence of Crown witnesses, and simply accepted their evidence-in-chief in grounding her findings relating to the charge of Impaired Care or Control.
[22] Thus, for examples, the trial judge found with Cst.
Kiviaho that the appellant made a really wide turn while driving, and was driving slower than the limit, but she neglected to note that the roads were misty and that the weather earlier in the evening had included freezing rain, or that the officer agreed that it was normal for drivers to slow down in the presence of police.
The trial judge further did not mention that police observations concerning the appellant’s driving were made from a distance of some 300 or 400 metres.
[23] Generally speaking, trial judges are not required to refer to all of the trial evidence in their reasons.
Reasons “are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict”: *R. v. Morrissey*, [1995] O.J. No. 639 (C.A.), at para. 30.
Reasons for Judgment are sufficient if the parties can discern the path taken by the trial judge through the evidence: *R. v. Sheppard*, 2002 SCC 26, at paras. 46, 55.
Beyond that, it is a legal truism that a trial judge’s assessment of the evidence and findings of fact must be granted substantial deference by an appellate court: *R. v. Cornell*, 2010 SCC 31, at para. 25.
I see no indication that the trial judge failed to consider any evidence relating to the appellant’s impairment merely by reason of her decision not to mention all of it.
[24] The appellant also complains that some points of detail were not noted by police, but the trial judge chose to rely upon the evidence anyway.
I cite some examples from many: that the trial judge relied on the evidence of the police that the appellant’s speech was slurred, though the officers were unable to provide specific words slurred.
Likewise, the appellant’s unsteadiness in balance was not “quantified”, and the appellant’s difficulty in getting into the cruiser was described by the officer as “just a matter of resetting”.
While balance issues at the scene were noted, none were described at the police station.
[25] On this point, I would simply note the obvious, that different witnesses observe and recollect different things at different times, for a host of reasons, and indicia of impairment closer to the time of driving may well deserve more weight than later observations.
As in the formation of reasonable grounds to arrest for impaired operation, a trial determination of impairment hinges on a constellation of factors, which, though they are capable of individual innocent explanation or minimization by the cross-examiner, taken together can present a damning package.
The trial judge properly considered the various indicia observed by witnesses as a whole rather than piecemeal: see, e.g., *R. v. Healey*, [2012] B.C.J. No. 73 (C.A.), at paras. 18-19.
[26] Another complaint involves the trial judge’s mention more than once of the strength of the odour of alcohol relating to the appellant.
Reference is made to *R. v. Tavone*, [2007] O.J. No. 3073 (Sup.
Ct.), at paras. 11-12, wherein Hill J. points out that the intensity of the odour of alcohol adds nothing to the proof of impairment, other than the mere presence of an intoxicating substance.
In this case, however, the trial judge simply has reproduced the evidence spoken by the witnesses, and has used their words that happen to describe the intensity of the odour of alcohol.
She is presumed to know the principle discussed by Justice Hill, and cannot, in my view, be faulted for referring to the actual evidence of the witnesses: *Sheppard*, at para. 55.
[27] The appellant further complains that the trial judge erred by taking “judicial notice” of an unproven fact to determine impairment, in that the trial judge relied upon Cst.
MacRae’s evidence that the appellant’s eyes were shifting from left to right.
Concerning this assertion, the appellant refers to *R. v. Find*, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48, where the Supreme Court had occasion to define “judicial notice”.
Part of that definition is that “[f]acts judicially noticed are not proved by evidence under oath.”
[28] But as the trial judge observed, Cst.
MacRae’s evidence was more detailed than simply “that the Appellant’s eyes were shifting left to right” (App.
Factum, at para. 23).
I have summarized that evidence more fully above, and the trial judge herself stated, accurately, “his eyes were shifting left to right, which led Officer MacRae to think that the accused had trouble focussing on him” [emphasis added].
Problems with focus are indeed an indicator of impairment.
This was not judicial notice, as the judge’s conclusion about the meaning of that indicium came from the evidence of Cst.
MacRae, who was under oath.
[29] In sum, with respect to this ground of appeal, the appellant invites me to retry the case, and to accord more weight to different parts of the evidence than was focused on by the trial judge, in hopes of a better result.
That is not my place, and I decline the invitation: *R. v. J.H.*, [2005] O.J. No. 39 (C.A.), at para. 46.
[30] This ground of appeal fails.
## ISSUE 2: The s. 10(b) issue
[31] Section 10(b) of the *Charter* provides:
Everyone has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be informed of that right.
[32] At the hearing of the appeal, it was clarified that the issue with respect to the rights to counsel appears to focus on the time between the reading of the rights to counsel to the appellant by Cst.
Kiviaho at 2:45 a.m., and 3:01 a.m., the point at which police left the scene with the appellant.
[33] There can be no issue taken about the timing of the information that was given to the appellant upon his arrest.
In the context of the informational component, the words “without delay” in s. 10(b) of the *Charter* require police to immediately advise an accused person of the s. 10(b) right: *R. v. Suberu*, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 41-42.
That information was immediately provided to the appellant, who told police that he wanted to speak with counsel.
[34] Where the accused requests the opportunity to speak with counsel, that contact must also be facilitated by police “without delay”, meaning “at the first reasonably available opportunity”: *R. v. Taylor*, 2014 SCC 50, at para. 24; *Bartle v. The Queen* (1994), 92 C.C.C. (3d) 289 (S.C.C.), at 301.
Until contact with counsel can be facilitated, police must refrain from taking further investigative steps to elicit evidence.
If there is delay in facilitating the right, the burden lies on the Crown to justify that delay, which is a factual enquiry: *Taylor*, at paras. 24-26.
Within this framework, s. 10(b) does not create a right to use a specific telephone: *Taylor*, at para. 28.
[35] The trial judge framed in this way the events that transpired after the rights to counsel were provided to the appellant at 2:45 a.m.:
The officer [viz., Cst.
Kiviaho] spent the next 16 minutes preparing to transport the accused to headquarters, to make the arrangements to have the breath technician available at headquarters, and to making arrangements to have the motor vehicle towed.
The officer left the scene with the accused at 0301 hours.
There were no other delays noted by either Constable Kiviaho or Constable MacRae before departing the scene or on the way to headquarters.
[36] The appellant asserts various errors in the trial judge’s recitation of these facts, based on her purported misunderstandings of the evidence: that Cst.
Kiviaho was in fact uncertain whether it was he or Cst.
MacRae who did certain activities, that Sgt. Hotson was present from the time the appellant was arrested, and available to stand by for the tow, and that Cst.
Kiviaho was wasting time “authoring his police notes” while the appellant was in the cruiser, before they left the scene.
[37] These complaints as to incidental detail miss the point that was made by Cst.
Kiviaho and obviously accepted by the trial judge.
Regardless of which particular officer was arranging what, regardless that a different officer was tasked with waiting for the tow of the appellant’s vehicle, and regardless that one of the officers made a short note in the cruiser at the roadside while the other officer did other things, various tasks all had to be taken care of before leaving the scene.
According to Cst.
Kiviaho, 3:01 a.m. “would have been our first opportunity” to leave the scene, as referenced by the trial judge earlier in her reasons.
[38] Csts.
Kiviaho and MacRae attended the scene together, and left together.
One or the other was doing the activities spoken of by the trial judge, and more besides.
Both officers testified that there was no delay prior to leaving the scene, and the trial judge was entitled to accept that evidence.
Errors here, if errors there be, go to detail, and not substance.
They are peripheral to the material issue, which was that the police were busy attending to investigative necessities, and left the scene at the first opportunity.
In such circumstances, any factual errors are inconsequential, rather than essential: *R. v. Lohrer*, 2004 SCC 80, at paras. 1-2.
[39] In finding no breach of the right to counsel in the circumstances at roadside, the trial judge focused on the appellant’s exercise of his right to counsel as involving a component of privacy: “there was no opportunity to consult with counsel in private prior to the arrival at the police station.” She noted as well that no evidence was obtained from the appellant until after he had consulted with counsel.
[40] There may be circumstances in which the implementational duties pursuant to s. 10(b) of the *Charter* must be afforded by police at the roadside, and privacy issues surrounding such a call will then have to be factored in: see, e.g., in the very different context of arrest in a private home, *R. v. Van Wyk*, [1999] O.J. No. 3515 (Sup.
Ct.), at paras. 102, 116.
[41] In the circumstances of this case, there is no indication on the evidence that the police were not attentive to the first reasonably available opportunity to facilitate the appellant’s right to counsel in private.
The trial judge reasonably recognized that such a call could not be facilitated at the roadside, where police were otherwise occupied with carrying on an investigation and preparing to transport the appellant at the “first opportunity” to police headquarters, where a private call could be made.
On the issue of facilitating the exercise of the s. 10(b) right, the practicalities of the situation must be taken into account: *R. v. Patrick*, 2017 BCCA 57, at para. 113; leave denied, [2017] S.C.C.A. 108.
[42] This ground of appeal fails.
## ISSUE 3: Overholding
[43] Concerning the arrest of a person in the appellant’s circumstances, and his release from custody, the *Criminal Code* in s. 497, subject to various exceptions, requires release as soon as practicable after arrest.
[44] Section 9 of the *Charter* sets out that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” The appellant bears the onus of establishing a breach of the s. 9 right: *R. v. Burns*, [2000] O.J. No. 1743 (Sup.
Ct.), at paras. 5-13; *R. v. Iseler*, [2004] O.J. No. 4332 (C.A.), at paras. 22-23.
[45] In the context of impaired driving cases, high blood alcohol concentrations alone can constitute a sufficient reason for continued detention, so as to render such detention lawful and not arbitrary, so long as an assessment is made of the particular accused, and other available options are considered: *R. v. Sapusak*, [1998] O.J. No. 4148 (C.A.); *R. v. Kavanagh*, [2017] O.J. No. 430 (Sup.
Ct.), at paras. 36-43; *R. v. Waisanen*, 2015 ONSC 5823, at paras. 12, 23; *Iseler*, at para. 18; *R. v. Price*, 2010 ONSC 1898, [2010] O.J. No. 1587 (Sup.
Ct.), at para. 93.
[46] In this case, the trial proceedings were blended with the Charter applications.
Evidence on the one was therefore evidence on the other.
The respondent has argued that the appellant did not meet its evidentiary burden on the s. 9 issue.
I would note the following from the trial:
a.
Cst.
Lanzo made observations consistent with impairment by alcohol during breath testing;
b.
The breath results were of 220 and 210 milligrams of alcohol per 100 millilitres of blood;
c.
Cst.
Kiviaho testified that the appellant refused to sign documents at 4:26 a.m.;
d.
Cst.
Kiviaho and Cst.
MacRae lodged the appellant in a cell at 4:32 a.m.
Both officers were of the view that he would be held until sober;
e.
Cst.
Kiviaho told the appellant that he would be held until he was sober.
Cst.
Kiviaho learned from the acting staff sergeant that this was so that the appellant would understand conditions of release;
f.
Cst.
Kiviaho next had dealings with the appellant at 6:25 a.m., when the appellant was noted to be definitely awake and alert, though still not minded to sign any documents;
g.
Both Cst.
Kiviaho and Cst.
MacRae testified that it was the duty of the officer in charge or the staff sergeant to determine whether an accused person on a drinking and driving charge was capable of release;
h.
The appellant was released before an officer in charge at 12:10 p.m.;
i.
The appellant did not testify on the Charter s. 9 application, and offered no evidence on the overholding issue;
[47] In the circumstances of this case, the evidence relied upon by the trial judge was largely hearsay.
Csts.
Kiviaho and MacRae testified about what they heard the acting staff sergeant’s views to be, and Cst.
Kiviaho reported those views to the appellant.
That report does not convert what is hearsay into direct evidence.
Both officers testified that the decision to hold the appellant belonged to another, and not to them.
[48] Reliance by the trial judge on that hearsay evidence for its truth constitutes error.
The trial judge’s finding that there was “uncontroverted evidence” that the “delayed release was to ensure the [appellant] was sober enough to be released” cannot be supported by such evidence.
On allegations of overholding, the actual decision-maker should be called: *R. v. Price*, 2010 ONSC 1898, [2010] O.J. No. 1587 (Sup.
Ct.), at paras. 77-79, 83-84.
[49] That said, there was evidence that at the point that the appellant was first lodged in cells, his blood alcohol concentration was roughly two and one half times the legal limit.
That was evidence on the trial, and that was information that had been conveyed to Cst.
Kiviaho at the time that the appellant was lodged.
There was also evidence from Cst.
Lanzo capable of underpinning a finding that the alcohol in the appellant’s system was still affecting him.
Cst.
Kiviaho witnessed the appellant’s refusal to sign any documents that were produced to him at 4:26.
No evidence was presented on behalf of the appellant that other options were available to him short of spending time in a police cell to sleep off his intoxication.
[50] By 6:25, however, the situation was different.
The appellant was definitely awake and alert, according to Cst.
Kiviaho, who made no other observations that signalled any need to detain the appellant into the early afternoon, other than the continuing refusal of the appellant to sign documents.
And on that score, it should also be noted that the refusal to sign even a recognizance presented by a peace officer or an officer in charge does not constitute grounds to detain: *Criminal Code*, s. 501(4).
[51] At least from 6:25 a.m. onwards, the reliance on the refusal to sign, in the circumstances of an individual about whom no other explanation was offered in evidence for the continuing detention, must constitute an arbitrary detention.
There was in evidence nothing to justify nearly six more hours of detention, and no evidence of an individualized assessment by anyone with the authority to release the appellant.
[52] The trial judge erred in concluding that a breach of s. 9 of the *Charter* had not been made out in the circumstances of this case.
## ISSUE 4: Section 24(2)
[53] By way of remedy for the breach of s. 9 of the *Charter*, the appellant seeks the exclusion of the breath samples and the results of their analysis, pursuant to s. 24(2) of the *Charter*.
[54] Section 24(2) of the *Charter* provides:
Where…a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[55] Does a breach such as this one engage s. 24(2) of the *Charter*, as the breath sample evidence, which preceded the breach, does not appear to have been “obtained in a manner” that infringed a right.
[56] However, the appellant points to the principle enunciated in *R. v. Edwards (appeal by Pino)*, 2016 ONCA 389, [2016] O.J. No. 2656 (C.A.).
That case involved a masked high risk gunpoint takedown of the accused by officers, after which marijuana plants were seized from the trunk of her car.
This conduct was followed by deficient information to the accused about her rights to counsel, and a very lengthy period of time during which the accused was prevented from contacting counsel, to ensure the integrity of the ongoing investigation.
A breach of s. 8 and two s. 10(b) Charter violations were found.
[57] The Ontario Court of Appeal in the *Edwards* decision held that the words “obtained in a manner” in s. 24(2) did not simply involve exclusion of evidence discovered or obtained following a Charter breach.
Rather, the “obtained in a manner” requirement was engaged if a Charter breach was “temporally” and “contextually” connected to the evidence in question, and occurred during the course of the same transaction in which the evidence was discovered: *Edwards*, at para. 49.
[58] In *Edwards*, at para. 72, the Court set out considerations to guide a court’s approach to the “obtained in a manner” requirement:
> 72 Based on the case law, the following considerations should guide a court's approach to the "obtained in a manner" requirement in s. 24(2):
>
> * The approach should be generous, consistent with the purpose of s. 24(2)
> * The court should consider the entire "chain of events" between the accused and the police
> * The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct
> * The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.
> * But the connection cannot be either too tenuous or too remote.
[59] In *R. v. Kavanagh*, [2017] O.J. No. 430 (Sup.
Ct.), an impaired driving and overholding case, Heeney R.S.J. was called upon to consider the *Edwards* decision, and perform an analysis based upon the expanded understanding of the “obtained in a manner” requirement.
Heeney R.S.J. reasoned that on the evidence of the case before him, the Intoxilyzer evidence was not contextually connected to the overholding breach of s. 9, because “the decision…to keep the Appellant in custody was not part of the transaction that generated the Intoxilyzer results, nor was it part of the course of conduct of the two other officers who, together, generated the Intoxilyzer results”: *Kavanagh*, at paras. 44-50.
[60] Such reasoning is equally applicable to the circumstances of this case, where the s. 9 violation has been made out because the staff sergeant(s) did not offer evidence at trial in justification of the continued detention of the appellant.
The decision was theirs, and the absence of that evidence was felt on the determination that the appellant had been held without justification.
Moreover, the appellant’s care or control of a vehicle was complete before he was brought to the police station.
The breath sampling had been finished by the time the breach could be said to have begun, and it was conducted by Cst.
Lanzo, who had nothing to do with either the arrest or lodging of the appellant.
The appellant’s driving, the breath sampling, and the detention were separate transactions, and any “connection” between the samples and the breach must be considered to be remote.
[61] But is *Edwards* even applicable to the context of this case, where a person who has been arrested for drinking and driving offences, and has provided breath samples analyzed at two and one half times the legal limit, is held in custody “pending sobriety” for a period of time?
[62] Prior to *Edwards*, the Ontario Court of Appeal focused on the lack of any temporal or causal connection between the breath evidence and the breach by overholding, in finding no scope for the operation of s. 24(2) of the *Charter*: *R. v. Sapusak*, [1998] O.J. No. 4148 (C.A.).
In *Iseler*, where the relief sought was a stay of proceedings, the same Court, at para. 31, made findings consistent with s. 24(2) reasoning and inconsistent with *Edwards*:
While the police conduct in failing to monitor the accused was inexcusable, it is important to note that the breach of the appellant's s. 9 Charter rights occurred post-offence.
The breach had nothing to do with the investigation and the gathering of evidence against him.
It did not impact on trial fairness.
[63] Several cases have held that the breaches in *Edwards* were of a different kind than anything in drinking and driving cases like this one, and required a broader analysis that was not appropriate to the drinking and driving context: *R. v. Garrido-Hernandez*, 2017 ONSC 2552, at paras. 37-42; *R. v. Cheema*, 2018 ONSC 229, at paras. 60-68.
On the reasoning of those authorities, the statements of the law in *Sapusak* and *Iseler*, which were not specifically overruled by *Edwards*, still bind this Court.
[64] Both lines of reasoning dictate the same result.
Whether the analysis is causal, temporal or contextual, there is no genuine connection between the care or control, the breath samples that were obtained from the appellant and analyzed, and the breach that followed.
[65] Were the requested relief pursuant to s. 24(1), some remedy short of a stay could be crafted: *R. v. Waisanen*, 2015 ONSC 5823, at paras. 34-35; *Price*, at paras. 96-98; *R. v. Coyle*, [2013] O.J. No. 5104 (Sup.
Ct.), at para. 82.
However, pursuant to s. 24(2) of the *Charter*, the binding authority of *Sapusak* and *Iseler* still guides the analysis, and the request to exclude the breath readings and the evidence that hinges on them, must be dismissed.
[66] This ground of appeal fails.
## Conclusion
[67] The appeal is dismissed.
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The Honourable Mr. Justice A.D. Kurke
Released: October 29, 2018
