Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Adil Fisk
Before: Justice P.T. O'Marra
Heard on: December 9 and 10, 2019
Reasons for Judgment released on: February 19, 2020
Counsel:
- Patrick Quilty, counsel for the Crown
- Androu Gerges, counsel for the defendant Adil Fisk
Judgment
Overview
1The applicant, Adil Fisk, is charged with driving with excess blood alcohol (over 80). Although the applicant was arraigned on the charge of dangerous driving, I dismissed that charge at the Crown's invitation at the conclusion of the Crown's case.
2On May 11, 2018, Cst. Crook and Cst. Perreault of the York Regional Police Service were working in the City of Mississauga. They were involved in Project Erasure, a joint police operation with the Ontario Provincial Police and Peel Regional Police, targeting street racing and stunt driving. At approximately 9:02 pm, they stopped the applicant behind a commercial plaza located at 905 Britannia Road for driving dangerously. When they approached the applicant's car and started to speak to the applicant, Cst. Crook detected an odour of alcohol coming from the applicant's mouth. She asked Cst. Perreault if he could smell alcohol coming from the applicant. After Cst. Perreault believed that he also could smell alcohol coming from the driver's side of the car, they returned to their cruiser and called for an approved screening device (ASD). Officer Crook returned to the car and advised the applicant that she was making a demand for a breath sample and that he could call a lawyer while he waited in his car. Another York Regional constable brought an ASD to the scene. The applicant provided a sample of his breath into the ASD which registered a fail and the applicant was arrested for driving over 80. He was transported to 11 Division. Once at 11 Division, the applicant's Intoxilyzer test results belied truncated readings of 110 mg of alcohol in 100 ml of blood, respectively.
3The applicant applied to have his breath samples and test results excluded under section 24(2) of the Charter. The applicant argued that based on the totality of both officers' observations, they did not have reasonable and probable grounds to detain and arrest the applicant for dangerous driving, thereby breaching the applicant's section 8 and 9 Charter rights. As well, upon detaining the applicant, the officers failed to immediately inform the applicant both the purpose of the detention and his right to counsel, contrary to section 10(a) and 10(b) of the Charter. The applicant submitted that a further violation of section 10(b) occurred when Cst. Crooks failed to provide the informational component of the right to counsel when she returned to his car to advise the applicant that he could call a lawyer while he waited for the ASD to arrive. The applicant submitted that the police did not administer the ASD forthwith, and therefore failed to meet the immediacy requirement under section 254(2) of the Code, therefore breached the applicant's rights under sections 8 and 10(b). The applicant argued that after he failed the ASD, the officers did not advise the applicant of the reasons for his arrest and his right to counsel. Finally, the applicant alleged that the police further violated his section 10(b) right by not advising the applicant that he faced the additional charge of Dangerous Driving, approximately 21 minutes after his initial rights to counsel.
4The applicant argues that the cumulative effect of the Charter breaches and their impact are serious enough that to warrant exclusion.
5The Crown responded that the officers did have the right to stop and investigate the applicant. The police action of stopping the applicant's car was under their authority at common law and/or by statute and was connected to a highway safety purpose. The applicant was not under arrest and therefore there was no requirement to immediately advise the applicant of his section 10(b) Charter rights. The police were entitled to continue their investigation. In fact, once they formed their suspicion that the applicant had been driving with alcohol in his body, at that point, the Code and jurisprudence suspended the applicant's right to counsel. Given the circumstances of this police investigation, the Crown submitted that the timing of the alcohol screening test was "forthwith" and therefore, was conducted in compliance with the legislation. Moreover, the applicant did not have a realistic opportunity to "consult" with counsel while he waited in his car. The Crown argued that the officers explained to the applicant both the reason for their investigation and the test that he was required to perform. After his arrest for the offence of over 80, there was a slight delay of a few minutes in providing the right to counsel to the applicant. However, the applicant has the right to counsel immediately, not instantaneously.
6Alternatively, the Crown argued that if there was a breach found, it was minor and had no significant impact on the applicant's Charter-protected interests. The officers were well intended and acted in good faith. The case should be judged in its merits.
Facts
7The facts of this case are not really disputed. The entire investigation from the time of the stop to the applicant's arrival at 11 Division were audio and video recorded on the police cruiser's dash board camera system. The facts are distilled based on the viva voce evidence of Cst. Crooks and Cst. Perrault, and the contents of the police dashboard video/audio recording.
8At approximately 9:02 pm, while the constables were in their unmarked cruiser facing west behind the plaza completing their notes regarding a previous investigation, the applicant's car approached from the east. They heard the car engine and the tires "squawking" and or "squealing". Immediately they activated the cruiser's emergency lights and the applicant pulled over. Before the officers exited their cruiser, they discussed and confirmed that they were investigating and detaining the suspect for dangerous driving.
9Cst. Crooks attended the passenger side of the car and spoke to the seated-passenger, while Cst. Perreault addressed the applicant. Cst. Perrault requested the applicant's driving documentation and advised that he was being 'investigated' for dangerous driving.
10Cst. Crooks testified that she immediately smelled the odour of alcohol on the passenger. Then she switched to the driver's side and smelled an odour of alcohol on the applicant's breath. The applicant admitted that he consumed two beers two hours ago.
11At 9:03 pm, she formed a suspicion that the applicant had alcohol in his body. Since the officers did not have an ASD in their possession, at 9:03 pm Cst. Perrault advised of their location and requested that a police officer deliver an ASD to the scene. According to the audio recording the dispatcher responded over the radio that "I will see if Peel or any of the other units have one…. I am not sure if any of our guys have one". At 9:04 pm, the dispatcher stated "negative…(inaudible)" that any officer was in possession of an ASD. Cst. Perrault asked Cst. Crooks if she is going to read the demand to the applicant. At 9:04:44 pm, the audio in the cruiser was turned off and at 9:05:31 pm the audio was turned back on.
12At 9:06:20 pm, Cst. Crooks returned to the applicant's car and read from her notebook the breath demand to the applicant. Cst. Crooks also told the applicant that they were "getting an approved screening device" and since they were York officers that did not patrol the region, they were waiting for Peel officers to attend and "assist". Then Cst. Crooks said the following to the applicant:
"I know that you are in the car with your friend, but you are more than welcome to contact a lawyer while you wait…also you don't have to tell me anything as it could be used as evidence. You are being investigated right now for impaired driving, you are not obliged to say anything unless you wish to do so could be given in evidence"
13At 9:07 pm after returning to their cruiser, the dispatcher indicated the following, "I tried raising any of the other officers that are on the detail tonight to see if any of them had ASD that they could get to your location, negative results…. I will see if I can raise anyone again try". According to Cst. Crook's testimony, she formed an opinion that no officers from Peel Police or the OPP were "keen" to bring an ASD.
14At 9:12 pm, the dispatcher advised the officers that the OPP was bringing an ASD. However, at 9:14 pm, Cst. Vrabie, from Peel Police arrived at the scene with an ASD. He was provided with the grounds for the test. At 9:15 pm, Cst. Crooks returned to applicant's car and from her duty book, again read the ASD demand to the applicant. At 9:16 pm, she escorted the applicant from his car. In front of Cst. Crook and Cst. Perreault's cruiser, Cst. Vrabie explained the purpose of the screening test and demonstrated to the applicant the proper method of providing a suitable sample. At this time, an OPP officer attended the scene and stood by with three officers while the applicant provided a sample of his breath. At 9:19 pm, the applicant failed the test and was placed under arrest. He was handcuffed and searched by Cst. Perreault. Cst Crooks told the applicant that he was "over the legal limit" and explained to him the next steps that were involved in their investigation. The applicant was asked if he had anything in the car that he wanted to take with him. He requested his cell phone and car keys. The applicant was permitted to talk briefly to his passenger. At 9:21 pm, the applicant was placed in the rear of the cruiser. At 9:22 pm, the applicant was advised that he was under arrest for over 80, given his rights to counsel, breath demand and cautions.
15The applicant indicated that he wished to speak to his sister, who is not a lawyer. However, he requested that the officers contact his sister for both the name and number of a criminal lawyer. He provided Cst. Perrault with her phone number.
16At 9:25 pm, Cst. Vrabie directed Cst. Perrault to take the applicant to 11 Division.
17At 9:27 pm, Cst. Crooks re-read the secondary caution. At this point, the applicant indicated that he was concerned about his mother's well being. He requested that the police contact his sister, for her to remind her mother to take her medication.
18At 9:30 pm, the police and the applicant departed from the scene and drove to 11 Division. The plaza parking lot was busy that evening.
19At 9:36 pm, Cst. Crooks contacted the applicant's sister regarding the arrest, their mother's medication and asked for a contact number for a lawyer. Cst. Crooks provided to the applicant's sister her York Regional Police email address, in order that she could send the officer the name and number of a lawyer.
20After the call to his sister, at 9:40 pm Cst. Crooks asked if he knew his lawyer's name. The applicant responded, "all I know is that it's called X-Coppers."
21At 9:43 pm, PC Crooks explained to the applicant that he was also being charged with the additional offence of dangerous driving and proceeded to re-read the rights to counsel and caution.
22At 9:48 pm, they arrived at 11 Division for the formal Intoxilyzer tests.
Section 9 of the Charter
23The applicant challenged the reason for the stop on the basis that there were no reasonable and probable grounds to believe that the applicant was driving dangerously, and therefore, no reason to detain the applicant. In my view, the evidence clearly demonstrated that the police were concerned about the manner of driving and deemed it worthy of investigation.
24In my view, the police did not arbitrarily detain the applicant in the parking lot and or road way of the plaza. The stop was connected to a highway safety purpose. As he approached the driver side of the car, the recording system captured Cst. Perrault saying to the applicant that they were investigating him for dangerous driving.
25The roadway behind the plaza was accessible by the public and was used by the applicant. It was perfectly acceptable for police to investigate the applicant under the authority of Highway Traffic Act (HTA) or the common law as the stop was connected to the manner of driving. There was a comment made by counsel, to Cst. Perrault that the police were on private property. I can only surmise that counsel seemed to insinuate that any police authority under the HTA only applied to investigations on public property. This assertion which should be treated with caution. In R. v. Hajivasilis, 2013 ONCA 27, Justice Doherty replied by saying:
With respect, the bald assertion that no part of the HTA reaches beyond highways does not reflect a full consideration of the entirety of the Act or the implications of limiting the entire act to "highways" as defined in the Act.
26The Court of Appeal in the Hajivasilis decision, corrected any ambiguity in the law about what constitutes a highway for the purposes of the HTA. Shopping mall and plaza parking lots are not roadways in the traditional sense, but the HTA applies to spaces where the public commonly travel in vehicles.
27The police also have the right to stop a vehicle in a parking lot for the purpose of the checking sobriety of the driver. This is a power that the police have both at common law and through the HTA. (See: R. v. Orbanski; R. v. Elias, 2005 SCC 37, at para. 41)
28The applicant's argument that he was detained under the Criminal Code and not pursuant to the HTA and therefore was arbitrarily detained and should have been provided with his section 10(a) and (b) rights, was recently addressed by the Court of Appeal in R. v. Gardner, [2018] O.J. No. 3404. In that case, the Court disagreed with the summary conviction appeal judge's conclusion of law that when the police stopped the accused after a witness reported a suspected drunk driver in a pick up truck, who was not the suspect, but the officer noted an odour of alcohol, was an investigative detention and the accused should have been provided his right to counsel under section 10(a) and 10(b) of the Charter.
29The fact that the pick-up truck was not the same pick up truck for which the officer had a report of possible impaired driving did not change the reason for the stop. He had authority to stop the pick-up truck under section 48(1) of the HTA.
30The police actions of stopping the applicant's car due to their concerns in the manner of the car's operation (i.e. excessive speed and spinning tires) on the roadway behind the plaza, in my view was consistent with the police common law powers and or the HTA. The stop could only be unconstitutional if the reason for the stop was unconnected to the driving. (See: Gardner, para. 22). The officers were entitled to stop the applicant's car. They approached the car and articulated the reasons for the stop. They did not arrest the applicant. The police were entitled to continue their investigation. In my view, the applicant was not arbitrarily stopped and detained and therefore at this stage of the investigation the police were not required to provide the rights to counsel.
Forthwith and Immediacy: Sections 8, 9, 10(a) and 10(b) of the Charter
31The ASD demand must be made "forthwith" by a police officer pursuant to section 254(2) of the Code. Any driver subject to this demand is lawfully detained. It has been long held, that although section 254(2) offends section 10(b), the Supreme Court ruled that a police officer need not comply with section 10(b) of the Charter, as section 254(2) is a reasonable limit prescribed by law and justified under section 1 of the Charter. (See: R. v. Thomson, 1988 CanLII 73 (SCC) and Orbanski, supra.) As well, sections 8 and 9 of the Charter are suspended by the operation of section 254(2) that authorizes police officers to lawfully engage in roadside alcohol testing. (See: R. v. Woods, [2005] S.C.R. 42)
32The "forthwith window" promotes the immediacy of both the demand and the compliance with the demand with little to no delay at the roadside. In R. v. Gill, [2011] O.J. No. 3924 (S.C.J.), Justice Durno defined the "forthwith window" at para. 31 and 32 as follows:
31 When the "forthwith window" opens and closes is determined with respect to the right to counsel. The critical question is whether there was a realistic opportunity for the detainee to consult counsel before being confronted with the ASD and required to provide a suitable sample. R. v. Cote (1992), 1992 CanLII 2778 (ON CA), cited with approval in Woods, supra, at para. 35. It is not simply an opportunity to contact counsel. Rather, there must be a realistic opportunity to contact, seeks and receive advice before being confronted with the ASD. R. v. Torsney (2007), 2007 ONCA 67 (CanLII).
32 Whether that "realistic opportunity to consult counsel" exists is a question of fact to be determined considering all the circumstances in the case. R. v. Latour (1997), 1997 CanLII 1615 (ON CA), Torsney, supra, at para. 8. Courts have considered the following non-exhaustive list of circumstances:
i. the time the officer believed the ASD would arrive (R. v. George (2004), 2004 CanLII 6210 (ON CA));
ii. the time between the demand and the taking of the sample (Latour, supra);
iii. the time between the demand and the ASD's arrival (George, supra and R. v. Yamka (2011), 2011 ONSC 405 (CanLII));
iv. the day of the week and/or time at which the detainee would have been attempting to contact counsel (R. v. Singh (2005));
v. whether the detainee had a cell phone, although this factor in itself is not determinative (George, supra, at para. 42; R. v. Beattie, [2009] O.J. No. 4121 (Ont. C.J.));
vi. the actual time it took for the ASD to arrive (Latour, supra);
vii. whether there was an explanation for the delay (R. v. Fildan, [2009] O.J. No. 3604 (Ont. S.C.J.)); and
viii. whether the detainee contacted counsel at the station after being arrested (Torsney, supra).
33A year later in the decision of R. v. Quansah, 2012 ONCA 123 (CanLII), the Court of Appeal explained the five (5) considerations involved in a court assessing the immediacy requirement in section 254(2). Justice LaForme writing on behalf of the panel stated the following:
45 In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
46 Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.
47 Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).
48 Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.
49 Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met.
Application to this Case
34The officers stopped the applicant's car at 9:02 pm.
35At 9:03 pm, Cst. Crooks smelled alcohol on the applicant's breath. I am satisfied that she formed the requisite grounds to suspect that the applicant had alcohol in his body at this time. The applicant did not take issue with the grounds that formed her suspicion that led to the ASD demand. The smell of alcohol on the breath of the driver is enough to support an inference that the driver was operating a car with alcohol in their body. (See: R. v. Lindsay, 1999 CanLII 4301 (ON CA) and R. v. Carson, 2009 ONCA 157 (CanLII))
36However, Cst. Crooks did not make an immediate demand, nor did she possess an ASD when she made the demand. After she formed her suspicion, she consulted briefly with Cst. Perrault at the rear of the applicant's car over the smell of alcohol. On the video, Cst. Perrault walked up to the rear driver side tire and confirmed that he too smelled the odour of alcohol coming from the driver side of the applicant's car. I am somewhat circumspect regarding Cst. Perrault's ability to smell alcohol on the applicant's breath or from the car from that distance. But regardless, I am satisfied that Cst. Crook's formed the requisite suspicion to make the proper demand, not Cst. Perrault.
37Cst. Crooks and Cst. Perrault left the applicant's car and returned to their cruiser in order to call for an ASD. Before she left the applicant's car, Cst. Crooks did not indicate to the applicant where she was going or what she was doing. The applicant just sat in his car and waited. A few minutes later, at 9:06 pm she returned to tell the applicant that, if he wanted, he could call a lawyer and then she read the ASD demand and a caution. The ASD arrived at 9:14 pm (11 minutes after the suspicion was formed). The Applicant registered a "Fail" at 9:18-19 pm and was arrested (15-16 minutes after the suspicion was formed). To sum up the timeline, 11-12 minutes from the time that the suspicion was formed to the arrival of the ASD and a further 4 minutes to testing.
38Turning to the list of factors to determine whether the immediacy requirement was met, I am mindful of Cst. Crook's testimony regarding at what time she anticipated the arrival of the ASD. She left the court with the impression that there was uncertainty as to the time of the arrival of the ASD, as there were different police services responding to her request but no firm information on who was bringing the ASD or when. She testified that no police officer was "keen" to deliver the ASD. Eventually, a Peel police officer delivered the device.
39In my view, there was a realistic opportunity for the applicant to consult with counsel. I find that the Cst. Crooks was aware that he had a cellphone to call since she invited the applicant to contact counsel from his car. However, the right to counsel that was provided was devoid of the important information such as the legal aid 24-hour hotline. It was obvious to Cst. Crooks that the applicant had a cell phone that he could have utilized in the comfort and privacy of his car. Cst. Crooks conceded that she used "poor judgment" by not also reading the rights to counsel from her notebook as she read the ASD demand from her notebook at 9:06 pm.
40An accused has the right to free and immediate preliminary legal advice from duty counsel. (See: R. v. Bartle, 1994 CanLII 64 (SCC))
41The applicant was provided with the full informational component of the right to counsel after his arrest at 9:23 pm. He did wish to speak to counsel but did not have the name or number to call counsel but requested that the police contact his sister in order to get the name and telephone number of a lawyer. I do not know if the applicant spoke to counsel of choice. No evidence was led on this point. But I do have Cst. Crook's testimony that duty counsel was offered to the applicant at 11 Division and that he declined to speak to duty counsel. She testified that the applicant wanted to wait for his sister and speak to counsel of choice.
42I am not entirely convinced that the applicant would have called counsel of choice or private counsel while seated in his car since his responses post arrest indicated that he did not have a lawyer in mind, but in my view, if Cst. Crooks had read the full and complete right to counsel from her notebook and thereby provided the duty counsel number, perhaps the applicant could have called duty counsel or his sister in order to call counsel of choice. Cst. Crooks candidly admitted in cross examination that the reason she quickly read a "summary" or "paraphrased" the right to counsel to the applicant at 9:06 pm was that she was cognizant of the fact that they did not possess an ASD nor did she have actual knowledge when it would arrive. Moreover, Cst. Crooks felt that while seated in the privacy of his car, that the applicant had a reasonable opportunity to consult with counsel. Therefore, I disagree with the Crown's submission there was no reasonable opportunity to consult with counsel.
43The police stop occurred on a Friday evening at approximately 9:00 pm. The opportunity to contact and consult with counsel improved at this time than if the demand was made much later in the evening, or during the early morning hours, which decreases the reasonable opportunity to consult with counsel. (See: Singh, supra.)
44I find that Cst. Crooks formed her demand almost immediately (one (1) minute) after the initial stop of the applicant's car. She made her demand three minutes later. I find that she did not communicate her demand at the time that she formed her suspicion. However, her demand was three (3) minutes late. I agree that there is no mathematical calculation associated with the analysis of "forthwith" and no acceptable range of minutes permitted. The analyses must focus on the context of the circumstances. (See: Placidass, [2016] O.J. No. 6256 para. 21)
45The demand must be communicated upon formation of a reasonable suspicion in furtherance of the immediacy requirement. (See: Quansah, supra., para. 46, Fidan, supra., paras. 38-40 and Placidass, supra., para. 32.)
46I find that the officer did make her demand forthwith in the temporal sense, which was a three (3) minute gap. The Court of Appeal seemed to excuse from the analysis of the "forthwith window" a two (2) minute gap between the formation of the suspicion and the demand in R. v. Degiorgio, [2011] ONCA 527 at para. 37, due to investigative time. I agree that in this case that the three (3) minute gap was not offensive and was for the same purpose.
47However, I do find that the applicant was detained at the roadside. The applicant was never free to leave the scene during the investigation. Any reasonable person would assume that they must remain inside their car pending the arrival of the ASD.
48Despite three (3) minutes after forming her suspicion, Cst. Crooks advised the applicant that he could 'contact a lawyer while he waited' in the car, I am not satisfied that the right to counsel met the informational requirements of section 10(b) of the Charter.
49I am satisfied that given the circumstances of this case, including the uncertainty of the ASD's arrival, the time of the demand, access to a cellphone, the privacy of the car, the applicant's desire to speak to his lawyer of choice, and the 15-16 minute delay between the formation of the reasonable suspicion and the time of the "fail", there was a reasonable opportunity to consult with counsel.
50In my respectful view, the applicant has established on a balance of probabilities breaches of 8 and 10(b) of the Charter. Although, I have found that the ASD demand was made within the statutory framework of section 254(2) (three (3) minutes later), the immediacy requirement dictated that the applicant should have been provided with meaningful rights to counsel while he waited for the arrival of the ASD. When the police are not able to require immediate compliance with the demand, there is no justification for failing to provide the driver with both the informational and implementational components of section 10(b) of the Charter. (See: R. v. Taylor, 2014 SCC 50 (CanLII); R. v. Grant, 1991 CanLII 38 (SCC), at paras 17-20 and Placidass, at para. 56.)
Other Suggested Violations
51In my view, the applicant did not prove on a balance of probabilities that there was a further section 10(b) violation as a result of a delay of four (4) minutes between the time of the "fail" and the arrest, to the time that the right to counsel was provided to the applicant seated inside the cruiser. The right to counsel is to be provided 'immediately not instantaneously'. Police officers are not required to hand cuff the accused with one hand and with the other hand read the right to counsel from their notebooks. Besides, the police did not attempt to elicit any evidence from the applicant during this period that would have been admissible. (See: R. v. Culotta, 2018 ONCA 665 (CanLII), at para. 35)
52I do not find that there were any violations of section 10(a) of the Charter during any stage of the investigation. Cst. Perrault promptly made it clear to the applicant that the stop was to investigate his manner of driving. Once she formed her reasonable suspicion, Cst. Crooks was both very careful and quick to explain to the applicant the reason why he had to wait at the roadside- to see if the applicant was safe to drive. Furthermore, she made it clear to the applicant that they had to wait for other officers to arrive. After the applicant failed the ASD and was arrested at 9:19 pm, Cst. Crooks immediately advised the applicant that he was "over the legal limit". Three (3) minutes later, Cst. Perrault advised the applicant that he was under arrest for "over 80" and proceeded to read the rights to counsel and cautions. In my view, the officers promptly informed the reasons for the detention and arrest.
53Finally, I do not find that the police violated the applicant's sections 10(a) and (b) rights at 9:22 pm by failing to advise him that he was also additionally charged with the dangerous operation of a motor vehicle. At 9:43 pm, Cst. Perrault advised the applicant of the additional charge. Cst. Perrault testified that it was an "oversight" on his part not to include the original charge of dangerous driving in the reading of the reasons for the arrest at 9:22 pm. In my view, there was no substantive change in the extent of the applicant's legal jeopardy during this 21-minute period. (See: R. v. Schmautz, 1990 CanLII 134 (SCC)) Besides, the police did not attempt to gather any incriminating statements from the applicant or further evidence, beyond the roadside breath sample which they were lawfully entitled to obtain. In my view, the applicant was under no misapprehension about the reasons for the stop, detention and arrest.
Section 24(2) of the Charter
54The Supreme Court of Canada, in R. v. Grant, 2009 SCC 32 (S.C.C.) (CanLII), held that three factors are relevant to an assessment of whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute:
(1) an evaluation of the seriousness of Charter-infringing state conduct;
(2) the seriousness of the impact of the breach on the Charter-protected interests of the accused; and
(3) society's interest in an adjudication of the case on its merits.
After considering these factors, a court must balance the assessments under each line of inquiry in deciding the ultimate issue.
Analysis
The Seriousness of the Charter-Infringing Conduct
55Obviously, I have had the benefit of watching and listening to Cst. Perrault's and Crooks' testimony. But more importantly, their interactions with the applicant were audio and video recorded. It was beneficial for me to observe the complete investigation. I pause to say that the dash camera recording is an asset in capturing the interactions with any accused. It protects the officers from any accusation of misconduct and or unprofessionalism. In my view, the recording supports that the officers in this case were courteous at all times. For example, they responded to the applicant's concerns regarding contacting his mother and sister.
56The court must disassociate itself with unlawful conduct by the police. Accordingly, the more severe or deliberate the state misconduct leading to the Charter violation, the greater the need for the courts to distance themselves from that misconduct by excluding the evidence. Minor or inadvertent violations of the Charter fall at one end of the spectrum of conduct, while wilful or reckless disregard of Charter rights falls at the other end. Extenuating circumstances may mitigate the seriousness of the police misconduct. Good faith can reduce the need for the court to disassociate itself from the police conduct. However, neither negligence nor wilful blindness by the police can properly be characterized as good faith. Deliberate, wilful, or flagrant disregard of Charter rights may require exclusion of the evidence. A significant departure from the standard of conduct expected of police officers will weigh in favour of exclusion of the evidence. Further, if the Charter-infringing police misconduct was a part of a pattern of abuse, such conduct would support the exclusion of the evidence. (See: Grant, supra, paras. 72-75 and Taylor, supra, para. 39)
57I characterized the breaches in this case as minor in nature on the continuum of Charter breaches.
58The officers had a lawful reason to stop and investigate the applicant. The investigation quickly evolved into an impaired driving investigation. At first glance, this should have been a straight forward or routine investigation- the smell of alcohol, the admission of drinking, a lawful ASD demand, and compliance with the demand. However, the circumstances were compounded by the fact that the investigating officers were from another region. They were not equipped with an ASD at the time. They were investigating street racing. Although, in my respectful view since they were investigating drivers that bringing along an ASD would have made good investigative sense. Nevertheless, they did not possess the ASD and relied on their dispatcher and another police service to bring an ASD to their location.
59Cst. Crook's attempt at providing the right to counsel 3 minutes after she formed her suspicion demonstrated her good faith in this case. Although the right to counsel that she provided was inescapably hollow and devoid of the critical information required. Nevertheless, Cst. Crook's tried.
60The time between Cst. Crook's valiant but ineffective attempt to providing the right to counsel and the actual proper right to counsel was approximately 14 minutes. At no time did the police attempt to elicit any incriminating statements. Once the applicant indicated that he wished to speak to his sister in order to speak counsel of choice, Cst. Crook's contacted his sister while they drove to 11 Division from the cruiser. She provided an email address for his sister to communicate the information.
61However, the problem with section 8 violation is that officers should have been aware of the need to have a better understanding of when the ASD was going to arrive before the demand was made. I am mildly surprised that the officers were not in possession of an ASD when they were tasked in another region to investigate street racing.
The Impact on the Applicant's Charter-Protected Interests
62As to the impact of the Charter violation, the second prong of the governing legal test under s. 24(2) of the Charter, the court must assess the extent to which a breach undermines the Charter-protected interests of the appellant. The impact of the Charter violation may range from "fleeting and technical to profoundly intrusive." Of course, the more serious the impact on those protected interests, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value to citizens. The courts are expected to examine the interests engaged by the infringed Charter right and consider the degree to which the violation impacted those interests. The more serious the state incursion on these protected interests, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute. See R. v. Grant, at paras. 76-78.
63In my view, the violation of the applicant's right to counsel did not have any impact on the applicant's Charter-protected interests. The police did not gather any evidence as a result of the infringement. The police had reasonable grounds to stop, investigate and arrest the applicant. The police were lawfully entitled to make a demand under section 254(2). The police never deterred the applicant from exercising his right to counsel of choice, conversely Cst. Crooks made a considerable effort in facilitating the applicant in exercising his right to counsel of choice by contacting his sister to obtain a contact number.
64The applicant's breath was obtained by means of an approved instrument within the meaning of section 254(1). This is judicially recognized as a non-intrusive procedure, which has only a slight impact upon the Charter-protected interests of the accused. (See: R. v. Richfield (2003), 2003 CanLII 52164 (ON CA), at paras. 16-18)
65Significantly, in R. v. Grant, McLachlin C.J.C. and Charron J., writing for the majority of the Supreme Court of Canada, described the collection of breath sample evidence in drinking and driving cases, at para. 111, as a "relatively non-intrusive" procedure, suggesting that the gathering of such evidence has a slight impact upon the Charter-protected interests of the appellant. Indeed, the Supreme Court in R. v. Grant generalized, again at para. 111, that in the absence of some egregious, deliberately inflicted Charter violation, with a "high" impact upon the appellant's privacy, bodily integrity and dignity, reliable breath sample evidence will "often" be admitted under s. 24(2) of the Charter, given that the "method of collection is relatively non-intrusive."
66Accordingly, the second factor in the s. 24(2) analysis will usually favour the admission of the evidence of the results of such breath samples. See, for example, R. v. Taylor, 2010 ONSC 4850, at para. 44; R. v. McDowell, 2012 ONSC 7028, at paras. 50-54; R. v. Rehill, 2015 ONSC 6025, at paras. 33-37, 45-48; R. v. Guenter, 2016 ONCA 572, at para. 98; R. v. Jennings, 2018 ONCA 260, at paras. 26-33; R. v. Walsh, 2019 ONSC 2337, at paras. 29-37.
In any event, in my view, the collection of the applicant's breath samples by means of an "approved instrument" in the present case was a relatively non-intrusive procedure which had minimal, if any, impact on the appellant's Charter-protected interests. Accordingly, this second prong of the s. 24(2) analysis strongly favours the admission of the Intoxilyzer results of the appellant's breath samples. See R. v. Grant, at paras. 106 and 111.
Society's Interest in the Adjudication of the Case on the Merits
67The third branch that I must consider is society's interest in the adjudication of the case on its merits. The relevant inquiry at this stage is whether the truth-seeking function of the trial process would be better served by the admission or exclusion of the evidence. The seriousness of the case, the reliability of the evidence and its importance to the prosecution are important factors. In R. v. Bernshaw (1994), 1995 CanLII 150 (SCC), the Supreme Court of Canada highlighted the serious nature and potential consequences of impaired driving. I am also mindful of the fact that the seriousness of the offence ought not to take on disproportionate significance. (See R. v. Harrison, 2009 SCC 34 (CanLII).) The breath samples are reliable, and no argument was made to the contrary. They are also of central importance to the Crown's case. This factor weighs in favour of admission.
68The application is dismissed.
Conclusion
69Therefore, the breath sample results should not be excluded from the trial. There will be a finding of guilt on the charge of 'drive with excess blood alcohol'.
Released: February 19, 2020
Signed: Justice P.T. O'Marra
