ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
JAMES DARRELL BIGGER
Before Justice K.A. Wells
Heard on June 27, July 25 & September 13, 2019,
March 11, October 14, November 10 & December 1, 2020
Reasons for Judgment released on February 3, 2021
Ms. L. Marcon counsel for the Crown
Mr. D. Lent counsel for the accused James Darrell Bigger
1James Bigger is charged with operating a motor vehicle while impaired by alcohol, operating a motor vehicle "over 80," and dangerous driving. He alleges that his rights under sections 8, 9 and 10(b) of the Charter were breached and seeks the exclusion of observations made by the police, utterances made to them, and the breath test results taken pursuant to a Criminal Code s. 254(3) demand.
2The parties agreed to hear the Crown's case and evidence on the Charter applications in a blended hearing. The Crown called four police officers and two civilian witnesses. The defence called evidence on the Charter applications only: Mr. Bigger and his wife, Ae Kongtakane.
3I will review the relevant evidence heard, the positions of the parties, and provide my findings with respect to each of the issues and related Charter arguments raised at trial. These issues are as follows:
(1) Has the Crown proven beyond a reasonable doubt that Mr. Bigger was operating a motor vehicle on September 5th, 2018?
(2) If the answer to issue one is yes, has the Crown proven beyond a reasonable doubt that Mr. Bigger was driving dangerously?
(3) Was there a violation of Mr. Bigger’s section 8 Charter rights as a result of the police unlawfully coming onto his property and/or entering his residence?
(4) Was there a violation of Mr. Bigger’s section 10(b) Charter rights as a result of the police failing to assist Mr. Bigger in contacting “counsel of choice” and “funneling” him to duty counsel?
(5) Was there a violation of Mr. Bigger’s section 9 Charter rights as a result of the police not releasing him at the earliest available opportunity?
(6) Has the Crown proven beyond a reasonable doubt that Mr. Bigger’s ability to operate a motor vehicle was impaired by alcohol?
(7) Has the Crown proven beyond a reasonable doubt that Mr. Bigger’s blood alcohol concentration was “over 80” at the time of driving?
Issue #1: Has the Crown Proven Beyond a Reasonable Doubt that James Bigger was operating a motor vehicle on September 5th, 2018?
a) Summary of Relevant Evidence
Ken Norris
4On September 5th, 2018, Ken Norris was travelling east on Highway 89 in the centre lane in his black Chevy pick-up when he noticed a white van swerving in the other eastbound lane a couple hundred yards ahead. Eventually, Mr. Norris went South on Highway 10 and the same white van was behind him. In his rear-view mirror he observed the white van to be slowing down and then speeding up. Mr. Norris said his attention was drawn to the white van because of the manner of driving. The fact that he had his child in the car gave him a heightened sense of concern.
5According to Mr. Norris, as the vehicles approached a traffic light in a construction zone where the highway narrowed to one lane in both directions, the white van passed on the right hand shoulder, knocking down construction pylons in the process, and running through the red light. When the light turned green, Mr. Norris continued on and eventually encountered the white van again still driving erratically. After the road re-opened into two lanes southbound, the white van was in the curb side lane but continued to drift into the centre lane in which Mr. Norris was travelling, requiring him to slow down so as not to be hit. Eventually Mr. Norris passed the white van and honked his horn at which point, he said, he observed the driver of the white van put his two feet out the window, honk his horn, and eventually flip the middle finger to which Mr. Norris responded in kind.
6Shortly after this exchange, Mr. Norris called 911 to report the white van. He provided the license plate of the van to the dispatcher. Mr. Norris continued while the van turned into a driveway and he did not see the van again. The only information he could provide as to the occupant of the white van was that it was a lone male driver. As to the make and model of the van, Mr. Norris said he “believed” it was a GM, but he was uncertain.
Police Constable Larry Matkowski
7Police Constable Larry Matkowski works for the Ontario Provincial Police and has more than 40 years of experience as a police officer. On September 5th, 2018, after working the day shift, he left the police station sometime between 5:30 and 5:40 p.m. While driving southbound on Highway 10, PC Matkowski stopped at a red light in the construction zone which narrowed the roadway to one lane, requiring vehicles to take turns going in either direction. According to PC Matkowski, he was the third vehicle back from the red light and there was a black pick-up truck directly behind him. His attention was drawn to a white van approaching on the right gravel shoulder at a high rate of speed creating a lot of dust. Officer Matkowski was concerned the van might not stop in time in which case it would either slam into a metal guardrail or strike his vehicle or one of the ones in front of him. The van did manage to come to a stop behind PC Matkowski, angled in between him and the black pick-up truck he had first observed behind him.
8When the light turned green, PC Matkowski moved forward with the white van behind him. He described the white van accelerating quickly and coming right up on his rear bumper and then backing off. PC Matkowski was concerned he was going to be rear ended by the van. According to PC Matkowski, the van continued speeding up and slowing down and swerving on and off the gravel shoulder. Officer Matkowski also noted that there seemed to be something going on between the black truck that had been right behind him initially at the red light, and the white cube van. In remarking on his perceived connection, he stated:
Now, I didn’t know whether they knew each other. I didn’t know whether it was a bit of road rage. I didn’t know what was taking place, but something – this black pickup truck also passed me and it seemed to be following the cube van. And as I recall he was on the phone, so I didn’t know whether he was calling the police. I didn’t know whether he knew this person, but he was – it just seemed out of the ordinary.
9Eventually the white van passed PC Matkowski on the inside lane going very slowly. At this time PC Matkowski observed the driver to be a male with brown, wavy, curly hair and wearing a blue t-shirt. Now that the vehicle was in front of Matkowski, he observed it to continue changing lanes erratically, drifting onto the gravel shoulder and speeding up and slowing down. He observed the van to “overshoot” a driveway off Highway 10, make an abrupt stop and then come back northbound and into the driveway at 633367 Highway 101. Officer Matkowski described being concerned that the driver of the van in question could be in medical distress or impaired. This prompted him to call PC Mask on his personal cell phone as he was aware Mask was about to begin his shift. After speaking with officer Mask, Constable Matkowski then called the OPP dispatch to report the situation. He waited on the northbound curb of Highway 10 (at the driveway) for uniform officers to arrive. Officer Matkowski did not know the license plate of the white van when he called Constable Mask and the dispatcher, but he did provide the location of the vehicle.
10According to PC Matkowski, he saw one male exit the white van and enter the residence. Approximately 12 to 14 minutes later Officers Mask and St. Clair arrived on scene. Eventually, PC Matkowski saw Mr. Bigger being taken into custody and he indicated to his colleagues that Mr. Bigger was one and the same person who he had seen driving the white van.
Police Constable Kerry St. Clair
11On September 5th, 2018, Police Constable Kerry St. Clair was on duty from 8:00 a.m. to 8:00 p.m. At 6:44 p.m. the dispatcher broadcast a call for a possible high-risk impaired driver travelling southbound on Highway 10. The information in the call was that the erratic driver had struck construction pylons that were set up in the construction zone along Highway 10. The information provided to PC St. Clair from the dispatcher included that the vehicle in question was a white Nissan cube van, with a license plate of AM31 224. As he made his way to locate the cube van, PC St. Clair continued to receive updates from the dispatcher. He was further advised that the van was at times driving on the shoulder, and that an off-duty police officer had also called in regarding the driving. Eventually he was updated that the off-duty officer had followed the van to the address on Highway 10 and was awaiting the arrival of on duty police.
12When PC St. Clair arrived at Mr. Bigger’s address, he encountered PC Matkowski. He also located a white Nissan cube van with the same plate that had been provided in the call – AM31 224.
b) Positions of the Parties
13On behalf of the Crown, Ms. Marcon submits that there can be no doubt that Mr. Bigger was operating the impugned white van on September 5th, 2018. She submits that the observations of Ken Norris and PC Matkowski are consistent, reliable, and clearly in relation to the same vehicle.
14On behalf of the defendant, Mr. Lent submits that the driving observations which prompted Ken Norris and PC Matkowski to call police were in relation to two separate and distinct white vans. He points to inconsistencies in their recounting of events, and urges the Court to conclude that Ken Norris was engaged with someone other than defendant who was driving a white van in an erratic manner. Mr. Lent concedes that driving a motor vehicle with one’s feet out the window certainly meets the definition of dangerous driving, but says that I cannot be satisfied beyond a reasonable doubt that the white van driver observed by Mr. Norris was in fact Mr. Bigger.
c) Findings and Analysis
15Having considered the totality of the evidence, I am satisfied beyond a reasonable doubt that the white van observed by Ken Norris was the same white van observed by PC Matkowski, and that was the one being operated by the defendant. I accept that there are some differences in the observations made by the two witnesses, but those inconsistencies do not undermine the core evidence which leads to the overwhelming inference that there was only one white van being observed on Highway 10 on September 5, 2018, driving in an erratic manner.
16Ken Norris went unchallenged in his testimony on the fact that while he had no independent recollection of the license plate of the white van at trial, he had been in a position to observe it and had provided it to police when he called 911 on the date in question. I accept the evidence of PC St. Clair that he received the license plate of the white van in the initial call from the Dufferin Detachment dispatcher (this license plate turned out to be the plate for the van ultimately located on the defendant’s property). The unchallenged testimony of PC Matkowski was that at the point in time he phoned both Constable Mask and the OPP Orillia communications centre he did not know the license plate of the van, but he could provide the location it was parked at. Clearly, it was Ken Norris who gave the police Mr. Bigger’s license plate which is the same van followed to the residence by PC Matkowski.
17In addition to the compelling evidence about the license plate, the commonalities between the observations of Ken Norris and Officer Matkowski are so similar in nature and timing that the notion that there were two separate white cube vans driving erratically and engaging with a black pick-up truck at the same time of day in the same location is untenable.
18It is common ground that in the fall of 2018 there was one temporary light set up on Highway 10 between Highway 89 and Side Road 15. Both Ken Norris and PC Matkowski made observations of the white van at this red light, although aspects of their observations differ. For his part, Ken Norris described being the first car stopped at the temporary red light when he observed the white van come up the shoulder, knock over pylons, and then cut in front and run a red light. Mr. Norris said he became angry and eventually followed the white van.
19While stopped at the same traffic light, PC Matkowski testified that he was the third car back. There was a black pick-up truck behind him. His attention was drawn to a white van coming quickly up the right shoulder of the road kicking up dust and which ultimately cut in between the rear of his vehicle and the front of the black pick-up truck that was behind him. PC Matkowski did not see pylons hit, nor did he observe the white van to have ran through the red light. After the light turned green, PC Matkowski did observe what he believed to be some type of interaction between the black pick-up truck and the white van which he felt could have been “a bit of road rage.” He thought the black pick-up truck was following the white van.
20The only real point of departure between the evidence of Ken Norris and PC Matkowski is whether the white van ran the red light. On this point I prefer the evidence of PC Matkowski. At the time of the incident Ken Norris was driving with his young child in the car and was concerned for her safety. After calling 911 to report the manner of driving he went on his way and was not asked to provide a statement to police until over a month later. That there are some discrepancies between his evidence and that of PC Matkowski’s, again, does not impact my confidence that both gentlemen observed the same van.
21I am also satisfied beyond a reasonable doubt that the white van in question was in fact being driven by Mr. Bigger on September 5, 2018. PC Matkowski followed the van to the address and observed the driver to exit the driver side of the van. PC Matkowski confirmed that the person taken into custody by the police (Mr. Bigger) was in fact the same person who had been driving the van, had exited the van, and ultimately entered the residence. According to Aileen Tulk, Mr. Bigger returned home mere minutes before police were on the property. Finally, the white van in question is registered to the defendant.
Issue #2: Has the Crown Proven Beyond a Reasonable Doubt that James Bigger was operating a motor vehicle on September 5th, 2018, in a dangerous manner contrary to section 249(1)(a)?
22For the defendant to be found guilty of dangerous driving the Crown must establish both the mens rea and actus reus of the offence beyond a reasonable doubt. The actus reus of the offence requires the Crown to establish that in all of the circumstances, the defendant operated a vehicle in a manner that was dangerous to the public. It is unnecessary for the Crown to prove that the lives or safety of others were actually endangered. In other words, it is the manner in which the vehicle was operated that is at issue, not the consequence of the driving.
23The mens rea requires the Crown to establish that the accused actions were a marked departure from the standard of care that a reasonable person would observe in equivalent circumstances. The mens rea should be assessed by objectively measuring the driver’s conduct against the standard of a reasonably prudent driver, taking into account any exculpatory defences.
24I am satisfied that Mr. Bigger operated his van in a dangerous manner on the date in question. The evidence reveals that he was driving up the gravel shoulder, rapidly accelerating up behind other vehicles, and then decelerating to abnormally low speeds. He was swerving back and forth within lanes and making abrupt lane changes. Mr. Bigger narrowly missed hitting Mr. Norris’ vehicle more than once, and at one point he put his feet out the window while driving. Mr. Bigger’s manner of driving represented a danger to the public and his actions were indeed a marked departure from the standard of care expected of anyone operating a vehicle on a roadway. He is found guilty of Dangerous Driving.
Issue #3: Was there a violation of Mr. Bigger’s section 8 Charter rights as a result of the police unlawfully coming onto his property and/or entering his residence?
a) Summary of Relevant Evidence
Police Constable Larry Matkowski
25As already noted, PC Matkowski was off duty when he observed Mr. Bigger driving his vehicle on Highway 10. He followed the white van to the Bigger residence, and parked his own truck on the side of the road to await uniform police. He estimated that it took between 12 and 14 minutes for PC Mask and PC St. Clair to arrive, each in a separate police cruiser. PC Matkowski followed the police cruisers onto the Bigger property, but stayed parked towards the end of the driveway.
26According to PC Matkowski, he had a brief discussion with Mask and St. Clair as they walked towards the residence during which time he relayed a description of both the nature of the driving and the driver. PC Matkowski said he saw both Mask and St. Clair “disappear into the door of that house, door number three, but I, I don’t know what they were doing…” Shortly after, he said, a male came out with handcuffs on accompanied by St. Clair and Matkowski. He described the male under arrest appearing upset, agitated and aggressive and heard him say “I just got home.” PC Matkowski confirmed for the officers that the male under arrest (Mr. Bigger) was the one who had been driving the van.
27PC Matkowski said that once Mask and St. Clair arrived things happened very quickly. His estimate was that once his colleagues arrived, he was only there for another 4 or 5 minutes at most before he left to make his way home.
Police Constable Jason Mask
28PC Mask was both the arresting officer and qualified breath technician in this case. At approximately 6:45 p.m. on September 5, 2018, he received a call on his personal cell from PC Matkowski concerning observations of a possible impaired driver. PC Mask testified that he immediately went to his cruiser to head to the location of the van.
29At 6:54 p.m. Mask and St. Clair arrived at the Bigger property. Mask observed the white van parked in front of the garage of the residence. The driver’s door was open, the engine was still warm and there was an open can of Busch beer in the centre console.
30PC Mask confirmed the brief discussion with PC Matkowski as he made his way to the residence. He said that he first knocked on door #2, and then moved to door #3.2 Constable Mask said that door #3 was partially open at the outset, and opened wider as he knocked on it. Within seconds of knocking and announcing himself as police, according to PC Mask, Mr. Bigger presented himself at the door. PC Mask said that he asked Mr. Bigger to step outside in order to discuss the traffic complaint and that as he stepped backwards, Mr. Bigger came out of the residence. Mr. Bigger advised PC Mask that he had just gotten home. PC Mask observed that the defendant had slurred speech, a flushed face, bloodshot eyes and the smell of alcohol on his breath. In response to a question from PC Mask, Mr. Bigger indicated that he had had nothing to drink.
31PC Mask requested that Mr. Bigger to accompany him to his police vehicle for the purpose of continuing his investigation. At some point after this request, PC Matkowski confirmed that Mr. Bigger was in fact the person who had been driving the van. At 6:56 p.m., PC Mask placed Mr. Bigger under arrest. He was handcuffed and placed in the rear of the cruiser.
PC St. Clair
32As previously noted, PC St. Clair was dispatched to deal with a call for an erratic driver that came in at about 6:44 p.m. He arrived at the Bigger residence the same time as PC Mask and also pulled his cruiser into the driveway.
33After exiting his vehicle, his first task was to make observations of the white van. From there, he said, he looked to his right and could see PC Mask knocking on the door of the residence. At that point, St. Clair said that he made his way to the north side of the house to check for the driver. As he made his way back to the front of the house, he saw the defendant step outside at which point he was placed under arrest by PC Mask. PC St. Clair clarified that before the defendant stepped outside, the door was already open.
34As to the location of PC Matkowski on scene, PC St. Clair had no recollection of him being near the residence, and he did not interact with him prior to the arrest of Mr. Bigger. After Mr. Bigger was in custody and in the back of PC Mask’s cruiser, PC St. Clair was responsible for arranging the towing of the van. He also attended the residence in order to advise the family of Mr. Bigger what was happening. PC St. Clair said that after knocking, a female answered the door. Ultimately, the two females inside the residence (Daisy Tulk and Aileen Tulk) both agreed to provide a statement, and PC St. Clair was invited inside for that purpose. PC St. Clair said that was the only time he entered the Bigger residence, and he did not observe either PC Mask or PC Matkowski to enter the home at any time.
Aileen Tulk
35Aileen Tulk is best friends with Mr. Bigger’s wife. On September 5th, 2018, she was present at the Bigger residence with her mother, Daisy Tulk. The two women were looking after Mr. Bigger’s two young daughters.
36According to Ms. Tulk, the defendant had left the residence earlier that morning and was not expected to return until the following day. While in the process of giving the oldest daughter a bath, Ms. Tulk was surprised to hear the front door open. She looked around the corner and saw Mr. Bigger coming through the door and he then come into the bathroom where he began to tease his daughter. Having known the defendant for 7 years as of that date, Ms. Tulk had no hesitation in indicating to this Court that he was intoxicated. She described him as having glossy eyes, slurring his words, and smelling of alcohol. When she asked Mr. Bigger how he had gotten home, his response was “You don’t want to know.”
37Mr. Bigger remained in the bathroom for two or three minutes and then left. About a minute after that, Ms. Tulk heard Mr. Bigger say something to the effect of “Somebody is out in the driveway.” She then heard the door slam and she surmised that Mr. Bigger had run out of the residence. Around that same time, Daisy Tulk came into the bathroom with the younger child. Less than five minutes later, once both children were dressed, an officer came to the door and asked Daisy Tulk for the defendant’s wallet and phone. A couple of minutes after that, another officer came to the residence and ultimately ended up coming in and taking statements from both women at their invitation.
James Bigger
38Mr. Bigger is 43 years old. At the time of his arrest he was employed by a construction company doing drywall, framing and painting. On September 5th, 2018, he spent the day in Dundalk, Ontario, helping a friend cut up trees. According to his initial testimony, it was approximately 4:30 p.m. that he left Dundalk to travel to his residence in Mono.
39When he arrived home, Mr. Bigger said he was “obviously shooken (sic) up from the day’s events of all that driving and what everything’s been discussed, the black pickup truck and the silver truck…” He described coming in the house, putting his phone, keys and wallet on the counter, and then chugging vodka from a secreted mason jar. Mr. Bigger said he then went into the washroom where Aileen Tulk was bathing both of his daughters. He did not see Daisy Tulk at that time.
40Next, he began scrolling through his phone in the kitchen reviewing all his messages from the day. Once finished, he returned to the washroom, played with his girls and splashed water on his face since he was covered in tree sap. He described a minor spat with Aileen Tulk having to do with motor oil which prompted him to go back to the kitchen yet again. Thereafter, according to Mr. Bigger, he heard Aileen say “someone’s at the door” at which point he said he went to the door and saw two officers. According to Mr. Bigger, when he saw the two officers they were standing in the foyer and it was about 25 minutes after he had first arrived home.
41In his evidence in chief, Mr. Bigger said he was told by police that he was under arrest for drinking and driving and going to jail. Initially he testified that he stepped outside and was then cuffed. Immediately after that he changed his testimony and said he was cuffed “pretty much where the door is” and that while getting cuffed he was being pulled outside. He described that a police officer then “pulled” him to a police cruiser and said “Get in.”
b) Positions of the Parties
42Mr. Lent submits that the police violated Mr. Bigger’s right to be free from unreasonable search and seizure under section 8 of the Charter in two ways. First, he argues that the police had no lawful authority to set foot onto the Bigger property whatsoever. On the basis of the Supreme Court of Canada decision in R. v. Evans 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8, he argues that the police were solely entering onto the property for the purpose of gathering incriminating evidence, thereby vitiating any implied consent to go onto the property and approach the front door of the residence.
43Second, the defence submits that I should make a factual finding (largely based on the testimony of PC Matkowski) that Officers Mask and St. Clair went into the Bigger residence, uninvited, and placed the defendant under arrest. In the absence of a Feeney warrant to enter the residence, he argues, the unlawful entry of police into the home violates section 8.
44On behalf of the Crown, Ms. Marcon submits that both aspects of the section 8 application should be dismissed. First, she argues that the defence reliance on Evans, supra, is misplaced. In Evans, the police were engaged solely in a search for evidence of the accused being involved in the cultivation of marijuana and that was the sole purpose for entering onto the property. Here, she argues, the police were engaged in the lawful execution of their duties for a legitimate purpose which was following up on the complaint about dangerous and erratic driving. She submits it would be absurd to require police to get a warrant in such circumstances because they did not know what they were dealing with, or whether any crime had been committed. On this basis, she argues that Evans is distinguishable and the police in fact had implied license to knock in an attempt to speak to the occupant(s) and inquire about the complaint.
45Mr. Marcon submits that the second aspect of the application is also without merit. She urges me to find that on a review of all the evidence, PC Matkowski is an honest but mistaken witness when he says he saw Mask and St. Clair entered the residence and come out with Mr. Bigger under arrest. She points to the testimony of several witnesses, including Mr. Bigger himself, which should lead to the conclusion that the officers did not enter the residence unlawfully. Furthermore, she submits that even if I were to conclude that police crossed the threshold of the door into the foyer, there was no objection taken and no violation of Section 8.
c) Findings and Analysis
Section 8 Part 1 – Police Presence on the Bigger Property
46In arguing for the existence of a section 8 violation by the police in coming onto the Bigger property, counsel places considerable reliance on the Supreme Court of Canada’s decision in Evans. In Evans, police received an anonymous tip that marijuana was being illegally cultivated inside the residence. Acting on that tip, police entered onto the property and knocked on the door in an attempt to “get a whiff or a smell” of marijuana once the occupants opened the door. One of the issues the Court had to consider was whether the police conduct in approaching and knocking on the front door constituted a “search” within the meaning of section 8. In determining this issue, Sopinka J. articulated the following test for determining if police conduct amounts to a “search”:
….it is only where a person’s reasonable expectations of privacy are somehow diminished by an investigatory technique that s. 8 of the Charter comes into play. As a result, not every form of examination conducted by the government will constitute a “search” for constitutional purposes. On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a “search” within the meaning of s. 8 (para 11)
47Sopinka J. affirmed the long recognized implied license for all members of the public, including police, to approach the door of a residence and knock for the purpose of communicating with the occupants of the dwelling. He also confirmed that the implied invitation to knock extends no further than is required to affect this purpose. In Evans, the Court ultimately found that the implied invitation to knock did not extend to a situation where the police approached the door in the hope of securing incriminating evidence against the occupant(s). The police conduct was held to be a “search” that violated section 8 of the Charter.
48In R. v. Lotozky, 2006 CanLII 21041 (ON CA), [2006] O.J. No. 2516, the Ontario Court of Appeal had occasion to consider the implied invitation to knock doctrine in the context of impaired driving. There, police had followed a suspected impaired driver onto his property, approached him on his driveway, ascertained that he was impaired, and arrested him. In writing for the Court, Rosenberg J.A. confirmed that the implied invitation to knock does apply in cases where police go onto private property to investigate driving offences. In doing so, he noted the sound policy reason for viewing the officers’ actions in coming onto private property in such circumstances as coming within the scope of the implied license. Were it not to apply, motorists would be encouraged to race the police home since they would be “home free” once they crossed over their own property line. Furthermore, the Court specifically noted that until the impaired driving was investigated, there was a continuing risk that an impaired driver would re-enter the vehicle and drive while impaired. At paragraph 37, the Court stated: “It is not reasonable to expect the police to devote resources to waiting outside the motorist’s house until he or she returns to the street.”
49As to the initial arrival at the Bigger property, I find that Mask and St. Clair attended for the purpose of following up on the calls received from both Ken Norris and PC Matkowski about the nature of Mr. Bigger’s driving on the highway. On the basis of their experience and common sense, the possibility of an impaired driver was a live one, but prior to following up on the call that was nothing more than speculation. It cannot be said that they were specifically there for the purpose of gathering “incriminating” evidence, because they did not know what they were investigating. This case falls squarely within the principles set out in Lotozky, supra. Acting on the complaints received, police were entitled to attend on the property and go to the door for the purpose of communicating with the occupant(s) to investigate the driving. There was no section 8 breach in this regard.
Section 8 Part 2 – Alleged Police Entry into the Bigger Residence
50Courts have repeatedly held that there is no power to enter a dwelling simply for the purpose of furthering an investigation. While the implied license to knock extends to the front door of a residence, it goes no further. The sanctity of a private dwelling has long been recognized. In the absence of one of the recognized exceptions being present, or the permission of the occupier, police are not free to enter a person’s residence in the absence of judicial authorization.
51My determination of whether a section 8 breach occurred by the police allegedly entering Mr. Bigger’s residence turns entirely on my factual findings as to what transpired. To be clear, I accept the evidence of PC Mask that he did not enter the Bigger residence prior to the arrest of the defendant. For the following reasons I conclude that Constable Matkowski was mistaken in his testimony that Officers Mask and St. Clair went into the house and came out with the defendant.
52PC Matkowski was off duty at the time of the incident. For obvious officer safety reasons, he indicated that he stayed approximately 75 feet back from the residence and let his colleagues in uniform do their job. Although he took some notes once he got home at his kitchen table, those notes were restricted to his observations of the impugned driving that lead him to report the matter in the first place. He was not required to submit notes regarding the details of what took place at the residence because he was off duty. In contrast, Mask and St. Clair took detailed notes of what unfolded at the Bigger residence. I find this makes them more reliable than PC Matkowski on this issue.
53PC Matkowski’s evidence in chief was that he saw Mask and St. Clair “disappear into the door” of the residence and then come out with Mr. Bigger. However, he also testified that he saw PC Mask knock on the door followed by a female opening the door for him. He did not know whether there was a discussion, or how Mask eventually made his way into the residence. He also could not recall at what point he saw Constable St. Clair enter the residence, stating “I, you know, I don’t recall. I, I – my best recollection is they both went into the home.” Under cross examination, PC Matkowski added that he recalled two females being there.
54PC Matkowski’s testimony that he observed two women at the point in time Mask and St. Clair first approached the residence is inconsistent with the evidence of every other witness in the case. I accept the evidence of Aileen Tulk that the defendant came home while she was bathing his eldest child. Only a few minutes later she heard Mr. Bigger remark to the effect that there was a car out in the driveway. After that, she heard the door shut and surmised that Mr. Bigger had left the residence. It is clear from her evidence that Mr. Bigger did not return to the residence again before being taken into custody. It is simply not possible that PC Matkowski observed Ms. Tulk and her mother at the point in time PC Mask initially went to the door. PC Matkowski could only have observed the two women subsequently, when each of Officers Mask and St. Clair returned to the residence.
55I also find the evidence of Mr. Bigger on how his arrest unfolded to be both unreliable and incredible. By his own admission, Mr. Bigger was intoxicated throughout the entirety of his interactions with police on the date in question. Indeed, the breath room video demonstrates that he is profoundly drunk, and his behavior is erratic and insufferable. At various times he mocked the officers, ripped off the seat cushions, curled up in the fetal position, and used vulgar language. At one point in response to questions regarding his height and weight, the defendant indicates that he has a “12-inch cock” and that “girls gag on her bud.” Given the extreme nature of his intoxication I have no confidence in his ability to recollect what happened. He admitted in court that he had no memory of various things that had occurred, including the comments he made about his genitals to police.
56In addition to lacking reliability, I found Mr. Bigger’s testimony to be internally inconsistent and often confusing. During his examination in chief, he testified that he had been home approximately 30 minutes when he suddenly saw two police officers in uniform standing inside his foyer. He described being told he was being arrested for impaired driving and going to jail, and then pulled out the front door while being cuffed and then getting pulled to the police car. Under cross examination, Mr. Bigger testified that he heard Aileen Tuck say “someone’s at the door” while he was in his master bedroom. On his second day of testimony, Mr. Bigger was unequivocal that there was only one police officer standing in the front foyer who asked him to come outside to talk. He described talking for a “bit” (but he could not recall the discussion), walking and eventually being handcuffed when he was next to the police car.
57In conclusion, I accept the evidence of Officers Mask and St. Clair as credible and reliable on the issue of what happened at the Bigger residence. I accept that PC Mask knocked on the door which was already slightly ajar in the manner he described. I believe that Mr. Bigger exited the residence on his own accord, and that he was shortly thereafter placed under arrest once PC Matkowski confirmed his identity as the driver of the white van. There was no unlawful police entry into the residence and therefore the section 8 application on this basis is dismissed.
Issue #4: Was there a violation of Mr. Bigger’s section 10(b) Charter rights as a result of the police failing to assist Mr. Bigger in contacting “counsel of choice” and “funneling” him to duty counsel?
a) Summary of Relevant Evidence
Police Constable Jason Mask
58The defendant was placed under arrest by Mask at 6:56 p.m. and immediately provided with his rights to counsel and caution while seated in the back of the police cruiser. According to PC Mask, Mr. Bigger indicated that he did in fact wish to speak to a lawyer and when Mask inquired as to whether he had a specific lawyer Mr. Bigger said “any lawyer.” Shortly thereafter, Mr. Bigger indicated to PC Mask that he might have his lawyer’s number on his phone, and they discussed PC Mask going back to the residence to obtain the phone for that purpose. At 7:05 p.m., after reading the breath demand, Mask went back to the residence and ultimately obtained Mr. Bigger’s cell phone and driver’s license from Aileen and Daisy Tulk.
59Once at the station, several cautions were read to Mr. Bigger in the booking area, and he also received his rights to counsel a second time. According to the evidence of PC Mask, it was at that point he asked the accused again if he had a specific lawyer he wanted to speak to, at which point Mr. Bigger said he didn’t have a lawyer. Officer Mask said he then reminded Mr. Bigger he had retrieved the phone for him to obtain the lawyer’s number, and that Mr. Bigger seemed to have no idea what PC Mask was talking about. When Mask asked a second time if there was a lawyer on his phone that he could access, the defendant said he would speak to duty counsel which call was facilitated by PC McGowan. At no point, according to PC Mask, did the defendant indicate a desire to access his phone get contact information for a particular lawyer.
Constable Scott McGowan
60Officer McGowan was present at the OPP detachment when Mr. Bigger was brought in for breath testing. He had a specific recollection of PC Mask reading Mr. Bigger’s rights to counsel three separate times slowly and concisely. He said that on the first two readings, the defendant refused to answer and maintained a “blank stare.” On the third reading, Mr. Bigger said that he would in fact like to speak to a lawyer and he was agreeable to speaking with duty counsel. At 7:32 p.m. McGowan called the duty counsel line and left a voicemail. Shortly thereafter duty counsel returned the call, and at 7:43 p.m. Mr. Bigger was put into a private room for a confidential discussion. Less than a minute later, Mr. Bigger came out of the room. When asked by McGowan if he was satisfied with the conversation, Mr. Bigger said “Yep. This is all bullshit. I was in my house.” They then went directly into the breath room.
The Breath Room Video
61Exhibit 9 in these proceedings is the breath room video. It captures the entirety of Mr. Bigger’s interactions with police between 7:43 p.m. and 8:30 p.m. At the beginning of the video, PC Mask recapped Mr. Bigger’s rights to counsel, and confirmed he had spoken to a lawyer to which Mr. Bigger responds “I said no thanks because you are going to fail.” Officer Mask confirmed Mr. Bigger had in fact spoken to a lawyer to which Mr. Bigger confirmed he had. For the more than 45 minutes while on video, Bigger says nothing about wanting to speak to a particular lawyer whose contact information is in his phone.
James Bigger
62During his examination in chief, Mr. Bigger confirmed that he was read his rights to counsel by PC Mask in the police car, and that he had specifically requested that Mask go to the residence and obtain his phone so he could get the number of “his” lawyer. He said that as of the date of his arrest, there was the name of criminal lawyer Fred Fedorson saved in his contacts under “Lawyer.” When asked what transpired at the station Mr. Bigger stated as follows:
Get read my rights again. “Do you want to talk to a lawyer?” Again I say, “Yes, it’s in my phone. Can I have my phone? Can I have that” And then every – somehow I never ever got my phone and then they, they tell me, well, since you don’t have a lawyer’s number then you got to talk to duty counsel or what’s it called? Or is that what it is, duty counsel?
63Mr. Bigger acknowledged being read his rights three or four times, and maintained that he repeatedly told police that he needed his phone. He said that he told the police clearly he did not want a “government lawyer” but that he wanted his own lawyer. He was played various portions of the video where he is in the booking area (which is not audio recorded) and testified that he was imploring the officers during that time to allow him to access private counsel. However, he also acknowledged that during the time he is in the booking area being read his rights to counsel, he can be seen curling up into a ball and seemingly ignoring what is being said. He stated:
It’s fair, because you got the right to remain silent, so you just, you got to shut it out and try to be quiet, but they’re continuing to do – I don’t know what else to do in those situation, so I just, I try to just shut down, but you’re not allowed to do that either, so…Like just kinda be quiet and, like curl up and just, like put your hand over your – like ‘cause you can’t talk. I mean if – you want to talk to your lawyer, so all this that’s going on you got no choice. They’re doing it anyways, so…
64Under cross examination, Mr. Bigger agreed that he spoke up during the breath room video when he wanted to get across things he felt were important. One exchange with the Crown went as follows:
Ms. Marcon: Do you agree that there may have been times when you were asked about a lawyer where you chose to exercise your right to silence just like you told us and not say anything?
Mr. Bigger: That day – I’m going to say I don’t remember.
Ms. Marcon: Okay. So it’s possible, but you just don’t remember, you agree?
Mr. Bigger: If you want me to be a hundred per cent accurate I, I don’t know what was – but sometimes I was quiet, sometimes I was loud.
65The uncontroverted evidence is that not once during the breath room video does Mr. Bigger say a single word about needing his phone to get the contact information for counsel, nor does he express any desire to speak to a lawyer.
b) Positions of the Parties
66On behalf of the defendant, Mr. Lent argues that the police breached the implementational component of Mr. Bigger’s s. 10(b) rights. He urges me to accept the evidence of Mr. Bigger when he says that he repeatedly requested access to his phone in order to obtain the number of Mr. Fedorson. Mr. Lent submits that at the very least, Mr. Bigger’s indication that he said “no thanks” to duty counsel should have prompted further inquiries by police of Mr. Bigger as to whether he wanted to speak with other counsel. Finally, the defence submits that I should reject the testimony of PC Mask that he reminded Mr. Bigger that his phone was at the station, on the basis that PC McGowan had no recollection of any discussion about Mr. Bigger’s cell phone being available for access.
67On behalf of the Crown, Ms. Marcon submits that the defence has not demonstrated any breach of s. 10(b). She urges me to reject the evidence of the defendant as being inconsistent and contrived and find that the police fulfilled their duties in implementing Mr. Bigger’s right to counsel.
c) Findings and Analysis
68The scope of the rights afforded by s. 10(b) are well known. Section 10(b) of the Charter states that everyone has the right on arrest or detention to be informed of their right to retain and instruct counsel without delay, and of the existence of duty counsel or legal aid. If the detainee indicates a desire to exercise this right, the police have a duty to provide him with a reasonable opportunity to do so. They must also refrain from eliciting evidence from him until he has had that reasonable opportunity (Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 at para 18; Taylor, 2014 SCC 50, at para 22.)
69There is no dispute that if a detainee has a lawyer and requests a phone book or some other reliable means to locate the number, they must be provided with an opportunity to do so. To be clear, this would include allowing a detainee access to his or her cell phone to access that information. This duty falls within the reasonable opportunity principle described above. The law is also clear that if a detainee does not have a lawyer, but requests the opportunity to find one, they should be given the chance and means to do so either through a phone directory or internet access (see R. v. Persaud, [2020] O.J. No. 2619).
70The requirement of reasonable diligence on behalf of the detainee to assert their rights is a vital component of the s. 10(b) analysis. This rule places an imposition on the detainee who wishes to search for a lawyer to make that request (see R. v. Persaud, supra; R. v. Zoghaib, [2005] O.J. No. 5947 (S.C.), aff'd [2006] O.J. No. 1023 (C.A.). Where a detainee asserts a wish to speak to counsel, but does not have counsel of choice, there is no breach of s. 10(b) where the police offer to put the detainee in touch with duty counsel (often referred to as “funneling”). This notion has been explicitly rejected in a number of cases (see Zoghaib, supra; R. v. Ruscica, [2019] O.J. No. 2021, Persaud, supra).
71I do not believe Mr. Bigger’s testimony that he repeatedly requested his phone in order to obtain the number for a lawyer. For the reasons already set out above, I found him to be an unreliable and incredible historian. His extreme intoxication understandably had a profound impact on his ability to remember what happened on the date in question. His testimony as to what transpired at the station was often inconsistent and confusing.
72In my view, the breath room video is the best evidence against which I can evaluate Mr. Bigger’s claim that he repeatedly asked for his phone. The video demonstrates that the defendant had no reservations about speaking up and making his views known to the officers. He repeatedly told the police “you got nothin on me.” At times he would insist that he had not had a drop of alcohol, then he would insist that he had been drinking at his home. He was adamant that the police illegally entered his residence and expressed confidence that a case against him could not possibly succeed. At one point he insisted that the police never read him his rights, which he admitted in court was untrue. The fact that he does not make mention once of wanting to speak to counsel of choice, or wanting to access his cell phone, belies his in-court assertion that he was desperate to speak to the lawyer whose number was saved in his phone. Furthermore, at 7:46 p.m. on the video he in fact mentions the police having his cell phone during one of his many angry tirades against Officer Mask. Mr. Bigger accuses the officer of forcing an 80 year-old woman to get his cell phone and wallet. If he was truly adamant that he have access to his phone, it would have been raised at this juncture.
73I find that the police did all they were required to do in terms of implementing Mr. Bigger’s 10(b) rights. I do not believe that PC Mask would have taken the step of obtaining the cell phone from Mr. Bigger’s residence specifically to assist in facilitating access to counsel, only to then go on to intentionally deny that access. I accept that PC Mask reminded Mr. Bigger that his phone was at the station and that Mr. Bigger was unresponsive (likely due to his level of intoxication).
74Finally, I find that there was nothing problematic in the police reaching out to duty counsel on behalf of the defendant when he initially indicated he wanted to speak to them. The fact that Mr. Bigger ultimately decided not to engage with duty counsel was his own decision. By the time he entered the breath room he had been read his rights to counsel at least three times. When PC Mask confirmed on video that Mr. Bigger had had the opportunity to speak to a lawyer, Mr. Bigger said “Yeah, I said no thanks, because you are going to fail.” The evidence demonstrates that Mr. Bigger felt he had been wrongfully arrested, and a case against him could not be sustained: he clearly thought he did not need a lawyer. The police did all they were required to do in the circumstances. The application for relief under section 10(b) is dismissed.
Issue #5: Was there a violation of Mr. Bigger’s section 9 Charter rights as a result of the police not releasing him at the earliest available opportunity?
a) Relevant Evidence
75Much of the evidence leading up to the alleged violation of s.9 of the Charter is not in dispute. At 6:56 p.m. Mr. Bigger was taken into police custody. Between 7:43 p.m. and 8:31 p.m. was is in the breath room with officers Mask and St. Clair and the breath testing was completed. He was thereafter placed in a cell. At approximately 10:30 p.m., Mr. Bigger was taken out of the cell and brought back to the booking area for the purpose of releasing him into the care of his wife who was at the station. After an exchange between Mr. Bigger and the police in the booking area, Mr. Bigger ended up back in the cell and was not released until about 5:00 a.m. the following morning.
PC Mask
76Shortly after concluding the breath testing, PC Mask placed a call to the defendant’s wife to arrange for her to pick him up from the station. By 10:30 p.m. Ms. Kongtakane was present at the station and the police attempted to release Mr. Bigger which can be seen on video from the booking area. According to PC Mask, when he was explaining the Promise to Appear, Mr. Bigger once again became belligerent and started pacing. PC Mask said that as he was making sure Mr. Bigger was aware of both his court date and fingerprint date, the defendant said “Fuck you. I’m not signing that. Put me back into the cells.” When PC Mask advised Mr. Bigger that his wife was present to take him home, he noted that the defendant said “I don’t give a fuck. Tell her to go home.” Mr. Bigger was put back in the cells and arrangements were made with Ms. Kongtakane to return for 5:00 a.m. to pick up Mr. Bigger.
77PC Mask provided several reasons in his testimony that factored into his decision to hold Mr. Bigger past 10:30 p.m., not the least of which was that Mr. Bigger expressed wanting nothing to do with his wife. Furthermore, PC Mask was not satisfied Mr. Bigger understood that he was required to appear in court and for fingerprints in answer to the various charges. Finally, PC Mask articulated concerns for both Mr. Bigger and the community at large. Given Mr. Bigger’s readings of 292mg & 278, his indication he could still make “last call,” his expressed attitude towards his wife, and the fact that he had attended a call at the Bigger residence only days prior where Mr. Bigger was drinking and a tenant dispute arose, he felt releasing him in the state he was in might lead to a further breach of the peace.
Scott McGowan
78At 3:13 a.m. PC McGowan had a two to three-minute conversation with Mr. Bigger while he was in cells. PC McGowan agreed that the discussion was about Mr. Bigger being released, with PC McGowan explaining to Mr. Bigger that signing the release documents did not amount to an admission of guilt. After that brief conversation, PC McGowan spoke to PC Mask and thereafter assisted in Mr. Bigger’s release at 4:57 a.m. PC McGowan did not try to facilitate the defendant’s release earlier than 4:57 a.m.
James Bigger
79According to his testimony, Mr. Bigger could not understand why he was not permitted to go home after completing his second breath sample. When asked by counsel if he knew of any reason police did not permit him to go home he said:
Why wouldn’t they let me go home? I’m charged I guess. I – well, from what they say I guess they were worried about my safety, but why wouldn’t they let me go? I, I don’t know.
80Mr. Bigger insisted that he never gave the impression to anyone that he would not come to court to answer to the charges. When defence counsel asked whether anyone had been available to come and pick him up, Mr. Bigger stated as follows:
Well, first of all I said, “I’ll walk home.” He said, “No, I’m not letting you do that.” Then I said, “I’ll call a, I’ll call a cab.” Then he goes, “No, we can’t let you do that,” And I’m wondering what’s – like I mean I didn’t understand and he was dead set on calling my wife and my wife was, like at work, and she didn’t get home until midnight, and I said, “You’re not calling my wife.” I said – so I don’t, I don’t know what to do here. Like you’re not letting me go, so I don’t know what options I had.
81Mr. Bigger was adamant that had he been given an option, he would have called “Ryan” (the individual with whom he had been cutting trees earlier) to pick him up. When asked in chief if he was aware his wife had been there to pick him up at 10:30 p.m., Mr. Bigger said:
Well, this is where I kinda (ph) got mad, because they said, “Your wife’s here to pick you up” and I said, “Who, who called my wife and how did you get my wife’s phone number, and why is she here?” And I said, “I’m not, not going with my wife.”
82Under cross examination, Mr. Bigger confirmed that his belief at 10:30 p.m. was that if he signed the PTA he would be admitting guilt. He agreed that he told the police to send his wife home. He also agreed police asked him if there was anyone else he wished for them to call.
Ae Kongtakane
83Ms. Kongtakane is the common law wife of Mr. Bigger with whom she shares three children. She is 38 years old and employed as an adult educator in the Peel District School Board. She does not have a criminal record.
84On September 5, 2018, Ms. Kongtakane received a phone call around 9:00 p.m. regarding her husband being in custody with the OPP and needing to be picked up. She arrived at the OPP detachment shortly after 10:15 p.m. She was aware that Mr. Bigger was facing charges related to impaired driving and had no concerns regarding bringing him home in an intoxicated state. After a brief initial discussion with PC Mask, he then returned a bit later without Mr. Bigger and informed her that her husband was not going to be released. According to her evidence, PC Mask asked if she could return later and suggested 5:00 a.m. the following morning which coincided with the next shift change. Ms. Kongtakane advised she had no problem returning at 5:00 a.m.
b) Positions of the Parties
85The defence submits that Mr. Bigger was arbitrarily detained from shortly after 10:30 p.m. to his ultimate release at 5:00 a.m. They argue that on the evidence before the court, the only reason for the prolonged detention of the defendant was his refusal to sign the Promise to Appear (“PTA”). Given that there is no legal requirement that someone sign the PTA in order to be released, the absence of any other valid reason to keep Mr. Bigger in custody rendered his detention arbitrary.
86The Crown submits that it was Mr. Bigger’s own behavior and level of intoxication that resulted in his inability to understand the PTA, and that in all of the circumstances his detention until 5:00 a.m. was reasonable.
c) Findings and Analysis
87Section 498 of the Criminal Code governs the release of an accused who has been arrested without a warrant and places a positive obligation on police to release the individual as soon as practicable. Detention may only be continued where the officer, on reasonable grounds, and having regard to all the circumstances, determines that the person’s detention is necessary in the public interest. “All the circumstances” include the need to establish the identity of the person, secure or preserve evidence of or relating to the offence, preventing the continuation or repetition of the offence or another offence, or ensuring the safety and security of any victim of or witness to the offence. Section 501 of the Code addresses the contents of an Undertaking to an officer and subsection (6) codifies that it is not mandatory that the accused sign for the release to take effect.
88In R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587, Justice Durno of the Superior Court of Justice sitting as an appellate court articulated a non-exhaustive list of the considerations at play for an officer in charge. These factors include:
- The accused’s blood alcohol level
- Whether the accused was charged with impaired driving
- His or her level of comprehension
- The administrative license suspension
- That the accused’s vehicle would be impounded
- Whether there was a responsible person available to pick up the accused
- Whether the accused had outstanding charges
- The accused’s demeanor
89Where the period of detention is alleged to be unreasonable, courts should look to whether police have made an objective assessment of these and any other relevant factors in determining whether the liberty interests of a detainee have in fact been breached.
90In R. v. McEwan, [2018] O.J. No. 2533, Judge T.A. Brown had occasion to consider the reasonableness of the detention of the defendant for more than 4 hours after the breath testing was complete. There, the breath readings were 140 and 130. In finding that the defence had established a violation of section 9, the Court stated at paragraphs 54 and 55 as follows:
Mr. McEwan ought to have been canvassed as to whether a responsible person was available to pick him up. This was not done. Nor was any assessment made to determine whether Mr. McEwan was in a fit condition to be released on his own. I note that shortly after providing his second breath sample, Mr. McEwan was served with notice of his administrative driver’s license suspension, and his car by this time would have been impounded. On the evidence before me there was no criminal record to speak of, and Mr. McEwan had been police and cooperative throughout his dealings with the police. There were a number of available responsible people that Mr. McEwan could have contacted to retrieve him from the police station, including his father and sister. I am satisfied that he would have been able to reach a responsible person to come and pick him up shortly after his breath sample procedure was concluded, had inquiries been made in a timely manner.
There is also no evidence to contradict Mr. McEwan’s position that he was releasable on his own at this time. Though there were some indicia of impairment noted by the breath technician, there was nothing to suggest that Mr. McEwan did not otherwise have control of his faculties or that he was a danger to himself or any other person where he to have been released shortly after he was returned to Constable Morris’ custody at 1:47 a.m. Indeed, as confirmed by the cell block video, Mr. McEwan was showing virtually no indicia of impairment by the time he was processed for fingerprints at 3:22 a.m. There is no reason to believe that he would not have been able to safely take a cab home at 1:47 a.m., just as he did upon his release at 6:00 a.m. There was certainly no assessment done of Mr. McEwan’s circumstances following the conclusion of the breath sample procedure that would suggest otherwise.
91My assessment of whether PC Mask’s decision to keep Mr. Bigger in custody until the following morning starts with the observation that police in fact tried to release Mr. Bigger at the earliest opportunity. Given the manner in which Mr. Bigger was behaving it is no surprise that they would have wanted him out of their custody as soon as possible. During the breath room video, Officer Mask inquires of Mr. Bigger what time his wife is done work and whether he wants her to come get him. In response, Mr. Bigger states “You cock sucker, you fucking drove me out here and you’re not going to drop me off.” PC Mask then asks again if he wants his wife to pick him up, to which Mr. Bigger then responds by yelling “No!” and repeating more than once “Dick move! Dick move!” Officer Mask follows up by asking if there is anyone else they can call to get him and Mr. Bigger continues to swear and yell and insist he does not want anyone to come get him. By the end of the video, once both breath samples have been obtained, he then changes his tune, seems a bit calmer, and says his wife can come get him.
92In my view, PC Mask’s decision to keep Mr. Bigger until 5:00 a.m. the following morning was both objectively reasonable and eminently sensible considering all of the circumstances at play. The situation involving Mr. Bigger was markedly different than the facts that existed before Justice Brown in R. v. McEwan, supra, where the accused there was barely exhibiting any signs of impairment. Here, Mr. Bigger was extremely difficult to say the least and I accept that there were real concerns for his well-being, and that of those who might have been exposed to him in that state. Once it became clear that Mr. Bigger was still acting erratically upon his wife’s arrival, keeping him in the station until he was sober enough to be safely released was a prudent decision. I accept Officer Mask’s summary of all of the factors he took into account in holding Mr. Bigger until 5:00 a.m. after arranging that time with Ms. Kongtakane.
93In my view, Officer Mask is to be commended for both the professionalism and restraint he displayed in dealing with Mr. Bigger who was one of the most recalcitrant defendants the Court has seen. This is not a situation where Mr. Bigger was held for punishment or simply because of a refusal to sign the PTA. I find there was no breach of Mr. Bigger’s s.9 Charter rights.
Issue #6: Has the Crown proven beyond a reasonable doubt that Mr. Bigger’s ability to operate a motor vehicle was impaired by alcohol?
94For the Crown to prove Mr. Bigger’s guilt on this count, I must be satisfied beyond a reasonable doubt that his ability to operate his vehicle was impaired to some degree by alcohol at the time he was driving. Having already set out my findings in respect of the nature of Mr. Bigger’s driving observed by Mr. Norris and PC Matkowski, I have no difficulty in concluding that his ability to drive was impaired by alcohol. The totality of the evidence reveals that from the moment he arrived home and was observed by Aileen Tulk he was intoxicated. Ms. Tulk observed him to have slurred speech, glossy eyes and smelling of alcohol. He also persisted in teasing his daughter in a manner that went beyond what he would have ordinarily done when sober. Ms. Tulk’s observations of Mr. Bigger are also consistent with the observations made by police upon encountering Mr. Bigger. His level of intoxication is also reflected on the breath room video which has been discussed at length herein, which reflects that his behavior is both aggressive and bizarre. The defendant’s manner of driving was both erratic and dangerous and I am satisfied beyond a reasonable doubt that his ability to drive was impaired. He is found guilty of impaired driving.
Issue #7: Has the Crown proven beyond a reasonable doubt that Mr. Bigger’s blood alcohol concentration was “over 80” at the time of driving??
95Apart from the Charter arguments raised, no issue was taken with the reliability or admissibility of the breath readings. Mr. Bigger blew 292 & 278. He is found guilty of over 80.
Released: February 3, 2021
Signed: Justice K.A. Wells