ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
KAMAR MANNING
Before Justice John North
Reasons for Judgment released on June 29, 2021
Ms. M. Goldenberg counsel for the Crown
Mr. C. Hurley counsel for Mr. Manning
I. INTRODUCTION
1Kamar Manning is charged with operating a motor vehicle while his ability to operate it was impaired by alcohol contrary to s. 320.14(1)(a) of the Criminal Code (“impaired operation”). Mr. Manning is also charged with having, within two hours after ceasing to operate a motor vehicle, a blood alcohol concentration that was equal to or exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 320.14(1)(b) of the Criminal Code (“over 80”). It is alleged that both offences occurred on April 13, 2019.
2The trial proceeded as a blended Charter application and trial. The Crown called four witnesses. The defence did not call any evidence.
3On the Charter application, the defence argued that Mr. Manning’s rights under ss. 8, 9 and 10(b) of the Charter had been infringed and that the evidence of the breath samples should be excluded under s. 24(2). Crown counsel argued that there were no Charter violations, but asserted that even if one or more of Mr. Manning’s Charter rights had been infringed, the evidence of the breath samples should not be excluded.
4On the trial proper, it was the position of the defence that the Crown failed to establish that Mr. Manning’s ability to operate a vehicle was impaired by alcohol. The defence also argued that the evidence did not support a finding that Mr. Manning was in care or control of a vehicle at the time of the alleged offence. Crown counsel argued that the evidence established, beyond a reasonable doubt, the essential elements of both alleged offences.
5After summarizing the evidence, and setting out my factual findings, I will address the following issues:
(i) Were Mr. Manning’s rights under ss. 8 and 9 of the Charter infringed because the arresting officer did not have reasonable and probable grounds to arrest Mr. Manning for impaired operation?
(ii) Has the defence established that a s. 10(b) violation occurred because the qualified breath technician asked Mr. Manning questions before he had an opportunity to speak with duty counsel (a second time)?
(iii) If a Charter infringement has been established, should the breath samples be excluded under s. 24(2) of the Charter?
(iv) Has the Crown has proven the charges beyond a reasonable doubt?
II. EVIDENCE
Evidence of Shazad Rashad
6Shazad Rashad was the first witness called by the Crown. On April 13, 2019, Mr. Rashad was driving his tow truck eastbound in the express lane on Highway 401 near Weston Road.
7Mr. Rashad noticed a stationary vehicle in the right shoulder. He saw a man standing beside the stationary vehicle. There is no issue that this man was Kamar Manning.
8Mr. Rashad pulled his truck over. Mr. Rashad said that he pulled over because he thought that Mr. Manning might require assistance. He could not recall whether Mr. Manning signaled that he wanted Mr. Rashad to pull over.
9Mr. Rashad described the location as “a bad spot”. He expressed the view that this would not be a good location for a car to stop.
10Mr. Rashad testified that the road was dry and the traffic was light.
11Mr. Rashad got out of his truck. Mr. Manning and Mr. Rashad met behind the tow truck. At that time, there was no one else at the scene.
12While standing behind the tow truck, Mr. Rashad spoke to Mr. Manning for “a couple of minutes.” Mr. Rashad testified that as soon as Mr. Manning started to speak Mr. Rashad “smelled a heavy odour of alcohol.” Mr. Manning told Mr. Rashad that he wanted a “deal to get hooked up to be taken off the highway.” Mr. Rashad testified that Mr. Manning also asked for some other kind of assistance – either fuel delivery or a tire change.
13As soon as Mr. Rashad smelled alcohol, he told Mr. Manning that he needed a Ministry of Transportation (MTO) employee to attend before he could tow Mr. Manning’s vehicle.
14Mr. Rashad returned to his tow truck and called the police. The operator asked for the licence plate number of the stationary vehicle. Mr. Rashad got out of his tow truck and walked to the back of Mr. Manning’s vehicle to get the licence plate number. Mr. Manning followed Mr. Rashad to the back of his car.
15Mr. Rashad testified that he noticed that Mr. Manning had “slurred kinda speech.”1 Mr. Rashad also observed that Mr. Manning speech was “delayed.” Mr. Rashad testified that Mr. Manning “wasn’t as responsive as a person should be.” Mr. Rashad did not notice anything “remarkable” about Mr. Manning’s eyes.
16Mr. Rashad testified that the police arrived at the scene about 15 to 20 minutes after he spoke to the police operator. Prior to the police arriving at the scene, Mr. Rashad was able to see what Mr. Manning was doing through his rear-view mirror. Mr. Rashad testified that during this period, Mr. Manning was walking back and forth between the tow truck and Mr. Manning’s vehicle. Mr. Rashad testified that it seemed to him that Mr. Manning was “out of it, like he was lost.”
17Mr. Rashad also said that, during this time, Mr. Manning was “basically in all of the doors” of his car. In cross-examination, Mr. Rashad agreed with defence counsel’s suggestion that it appeared that Mr. Manning was looking for something in the car.
18In cross-examination, Mr. Rashad testified that he did not recall Mr. Manning, at any point, sitting inside his vehicle. The only time that Mr. Rashad saw Mr. Manning sit down was “on the guardrail as we were waiting for the MTO.” However, in re-examination, Mr. Rashad acknowledged that it was possible that he may not have noticed that, at some point, Mr. Manning did sit down inside his vehicle.
19Mr. Rashad did not see Mr. Manning attempt to start his car.
20Mr. Rashad agreed with defence counsel that he did not recall seeing Mr. Manning stumbling.
21Mr. Rashad did not see Mr. Manning drink anything. Mr. Rashad saw no alcohol at the scene.
22Mr. Rashad testified that he was “positive” that Mr. Manning was standing outside when the police arrived at the scene. Mr. Rashad testified that he saw the initial interaction between the police and Mr. Manning, however, he did not see what happened after that because he was “told to go to my truck.”
Evidence of Constable Brittany McNamee
23Constable Brittany McNamee has been employed by the Ontario Provincial Police (OPP) for over three years. On April 13, 2019, she was working in a uniformed capacity in an OPP cruiser. She testified that at 3:10 a.m. she received a radio call about “a disabled motor vehicle that ran out of gas on the right shoulder, and that a tow truck driver wanted police to attend.” Constable McNamee was told that the car was on Highway 401 (eastbound) in the express lanes just prior to the ramp to Highway 400. Constable McNamee testified that during this radio call she was told that the tow truck driver said that the “male was acting very weird and walking around the car.”
24Constable McNamee arrived at the scene at about 3:23 a.m. She said that she saw a stationary grey car on a “very narrow shoulder.” Constable McNamee testified that this was a dangerous place to stop a vehicle. She said in that location, “cars are just going right past you” at a high rate of speed.
25She testified that she got out of her cruiser and immediately approached the stationary grey car. According to Constable McNamee, Mr. Manning was sitting in the driver’s seat of the vehicle when she arrived on the scene. There was no one else in the car. She could not recall if the car’s engine was running.
26Constable McNamee testified that after Mr. Manning rolled down his window she asked him, “What’s going on?” According to Constable McNamee, as soon as Mr. Manning began to speak, she smelled a strong odour of alcohol from his breath. Constable McNamee testified that, at about 3:25 a.m., she cautioned Mr. Manning that, “the focus of my investigation has moved into impaired operation of a motor vehicle.” According to Constable McNamee, Mr. Manning told the officer, “I ran out of gas.”
27Constable McNamee testified that she asked Mr. Manning where the key to car was located and he pointed to the ignition. According to Constable McNamee, all of the lights on the car’s dashboard were on. Constable McNamee testified that she asked Mr. Manning to leave the key in the ignition and exit the vehicle.
28Constable McNamee testified that, as the shoulder was narrow, there was not much room for her to stand when she was speaking with Mr. Manning through the driver’s side window. She had a “big safety concern” because she was “really close to a live lane.”
29Constable McNamee testified that when Mr. Manning got out of the car she immediately noticed that he was “unsteady on his feet.” Mr. Manning was on a concrete highway and there was no debris nearby. In cross-examination, she said that Mr. Manning was “very unsteady.” When asked in cross-examination whether Mr. Manning was “unsteady” or “very unsteady”, she replied, “unsteady.” She did not see Mr. Manning stumble.
30They walked to the front of Mr. Manning’s car, which was behind Mr. Rashad’s tow truck. Mr. Manning walked in front of Constable McNamee.
31Once they were in front of Mr. Manning’s car, Constable McNamee asked Mr. Manning to provide her with his driver’s licence. Mr. Manning looked in his pockets but could not find it. He told Constable McNamee that his driver’s licence was in the “front of his vehicle.” Mr. Manning and Constable McNamee returned to his car. He searched the front and back interior areas of the vehicle. Mr. Manning was inside the car looking for identification for a very short time. Constable McNamee described it as “literally in and out.”
32According to Constable McNamee, as Mr. Manning was looking for his identification, “he was slurring his speech and it was very difficult to understand what he was saying.” Constable McNamee had not noticed that Mr. Manning’s speech was slurred before he returned to his car to look for his identification.
33Mr. Manning could not find his driver’s licence. Constable McNamee testified that she had safety concerns as she was standing very close to a live lane of traffic on a highway. She told Mr. Manning, “okay, we’ll just get a verbal id.” Mr. Manning identified himself as Kamar Manning.
34Mr. Manning and Constable McNamee returned to the front of his car. Constable McNamee did not make a note that Mr. Manning was unsteady at that point.
35Constable McNamee testified that when they returned to the front of the car they were “face to face” and Mr. Manning was “at eye level with me.” According to Constable McNamee, she noticed that Mr. Manning’s eyes were “very red, and they looked watery.”
36Constable McNamee testified that it was at this point she “formed my reasonable grounds.”
37At 3:36 a.m., she advised Mr. Manning that he was under arrest for “operation while impaired by alcohol, drinking and driving.” [Emphasis added.]
38In response to the questions of Crown counsel and defence counsel about the grounds that supported Mr. Manning’s arrest, Constable McNamee mentioned the following:
Mr. Manning was sitting in the driver’s seat of the car when she arrived at the scene.
No one other than Mr. Manning was in the car.
The key to the car was in the ignition.
The car’s dashboard lights were on.
When Mr. Manning spoke to her, she immediately noticed a “very strong smell of an alcoholic beverage coming from his mouth.”
Mr. Manning’s speech was slurred, and it was difficult to understand him.
Mr. Manning’s eyes were red and watery.
Mr. Manning was “unable to locate his documents when he was going through his car and his pockets.”
Mr. Manning was unsteady on his feet.
Mr. Manning told her, “I ran out of gas.”
39Constable McNamee testified that, in forming her grounds, she drew the inference that Mr. Manning had driven the car to the spot where she found it. Constable McNamee observed that the vehicle didn’t “just get there by itself.”
40Constable McNamee testified that while she could not tell exactly when the car arrived at that location she believed that it would have been “within…close proximity to 3:10 a.m.” for the following reasons:
“So, we always immediately, like working on the highway the dash men, we always get a phone call right away. As soon as there’s been an abandoned vehicle, a disabled vehicle or a pedestrian on the highway. We immediately got this phone call of this disabled vehicle on the highway with a lone male. So, in my experience, I believed that, since he’s by himself alone, no one else around, the vehicle is there, he had to get to point A to point B on the highway driven within a close time frame. So, in my eyes I believed that he was impaired while operating the vehicle.”
41Constable McNamee added that “we get dispatched whenever there’s a safety issue. So as soon as there’s a vehicle or pedestrian found on the highway, it’s called in.” Constable McNamee testified that, based on her experience, a motor vehicle would not sit in the area where she found Mr. Manning’s car for “an extended period of time” without someone reporting it.
42After placing Mr. Manning under arrest, Constable McNamee escorted him to the rear of her cruiser. She testified that as they walked, she had to hold his left bicep “because he was very unsteady on his feet.” [Emphasis added.]
43According to Constable McNamee, Mr. Manning “kept asking why he was under arrest.” Constable McNamee testified that in response to Mr. Manning’s inquiries, she told him that she believed he “had more than the legal amount of alcohol allowed in his body in order to operate the vehicle.”
44Mr. Manning was placed into the rear seat of Constable McNamee’s cruiser. She advised him of his rights to counsel at 3:39 a.m. She testified that while she understood that an arrested person is to be advised of his or her rights to counsel “immediately”, she waited until Mr. Manning was inside her cruiser because she had safety concerns about standing on the highway. Constable McNamee also testified that Mr. Manning was in a better position, once inside her cruiser, to hear and understand what she was telling him.
45When Constable McNamee advised Mr. Manning of his rights to counsel, she read from the standard rights to counsel card that is issued to OPP officers. The information on this card includes the phone number for duty counsel.2 Constable McNamee asked Mr. Manning if he understood. Mr. Manning replied that he understood but stated, “I can’t memorize that number.” Constable McNamee told Mr. Manning that she would provide him with the phone number for duty counsel (again) when they got to the OPP detachment.
46Constable McNamee testified that she asked Mr. Manning, “Do you wish to call your lawyer now?” Mr. Manning responded, “If I had a lawyer’s number, I don’t have one memorized.” Constable McNamee told Mr. Manning that if he had a lawyer of choice she would find the phone number of that lawyer. She then asked Mr. Manning if he wanted to speak to duty counsel and he replied, “yes.”
47Constable McNamee testified that at 3:42 a.m. she “cautioned” Mr. Manning and asked him if he understood. He replied, “yes.”
48Constable McNamee testified that at 3:43 a.m. she “read the breath demand” and asked Mr. Manning if he understood.3 Mr. Manning answered, “can you repeat that?” Constable McNamee read the breath demand a second time and asked Mr. Manning if he understood. Constable McNamee testified that Mr. Manning responded as follows, “That I am accompanying you now for the test? I understand.”
49At about 3:45 a.m., Constable McNamee and Mr. Manning departed the scene. Constable McNamee testified that while they were in her cruiser she “could still smell a very strong odour of alcohol.”
50Constable McNamee testified that they arrived at the OPP detachment on Keele Street at 3:48 a.m. Mr. Manning was brought into the lodging area. Constable McNamee testified that Constable Kevin Noh “assisted with lodging.”
51At 3:52 a.m., Constable McNamee left a message for duty counsel. Duty counsel returned the call at 4:08 a.m. At about 4:12 a.m., Constable McNamee placed Mr. Manning into a privacy booth to speak with duty counsel. Mr. Manning’s phone call with duty counsel ended at 4:29 a.m.
52Constable McNamee testified that she escorted Mr. Manning from the privacy booth to the breath tech room. At about 4:30 a.m., she transferred custody of Mr. Manning to Constable Jun Choe. Constable Choe is a qualified breath tech. Constable McNamee testified that about 4:31 a.m. she was advised by Constable Choe that, at Mr. Manning’s request, duty counsel should be called again.
53Constable McNamee said that at 4:32 a.m. she left another message for duty counsel. At 5:00 a.m., duty counsel returned the second message. Constable McNamee testified that Mr. Manning’s second call to duty counsel was delayed because during this period there was another accused person who was using the privacy booth to speak with a lawyer.
54At 5:02 a.m., Mr. Manning was placed in the privacy booth to speak with duty counsel for a second time. Constable McNamee testified that Mr. Manning’s conversation with duty counsel ended at 5:08 a.m. After the conclusion of this call, Constable McNamee asked Mr. Manning if he “understood the phone call” and, according to Constable McNamee, he answered, “Yes. I understand.”
55Constable McNamee brought Mr. Manning back to the breath tech room. At 5:09 a.m., she turned custody of Mr. Manning over to Constable Choe.
56After that, Constable McNamee conducted an inventory search of the grey vehicle. She found no alcohol inside the car.
57At about 5:41 a.m., Officer Chao advised Constable McNamee of the results of the breath tests. Constable McNamee was told by Officer Chao that the first test, which was done at 5:15 a.m., revealed that Mr. Manning had 122 milligrams of alcohol in 100 millilitres of blood. She was told that second test, which was conducted at 5:37 a.m., revealed that Mr. Manning had 117 milligrams of alcohol in 100 millilitres of blood.
58In cross-examination, Constable McNamee was asked to provide her understanding of the grounds that are required to arrest a person for impaired operation of a motor vehicle. Constable McNamee testified that to arrest a person for impaired operation an officer must have reasonable grounds to believe that a suspect was operating a motor vehicle and their blood alcohol level exceeded the legal limit. Constable McNamee was also asked in cross-examination to “describe the difference between arresting someone for impaired operation versus operating a vehicle with more than the legal limit in their system or excess alcohol.” Constable McNamee provided the following answer:
“The difference between impaired operation and over 80, like, they, okay. So, if at operation, you’re driving while intoxicated. And then, over the excess amount is afterwards once they have the breath test. If they test for [sic] than the legal limit than they are allowed.”
59Constable McNamee was asked in cross-examination whether there was any difference in the grounds required to arrest someone for impaired operation of a motor vehicle and “over 80.” Constable McNamee replied “no.”
60Constable McNamee testified that she had reasonable grounds to believe that Mr. Manning had more than the legal limit of alcohol in his blood (which is why she read the breath demand to him).
61Constable McNamee testified that she believed that she had an approved screening device (ASD) in her cruisier. In cross-examination, Constable McNamee testified that, in the circumstances, it was not necessary to administer an ASD because, based on everything she observed, she believed that Mr. Manning “was over the legal limit.” It was Constable McNamee’s understanding that an ASD demand should be made when an officer believes that a driver has some alcohol in their system, but less than 80 milligrams of alcohol in 100 millilitres of blood.
62In cross-examination, Constable McNamee testified that throughout her interactions with Mr. Manning at the OPP detachment, his impairment continued to be obvious. She added that she and Mr. Manning “really didn’t have much conversation” at the detachment. Constable McNamee could not recall whether Mr. Manning slurred his words when he was at the detachment. She acknowledged that while at the detachment she did not have any difficulty understanding what Mr. Manning was saying. She did not observe Mr. Manning to be unsteady on his feet at the detachment, but it appears she did not see him walking or standing for any significant period of time.
Evidence of Constable Kevin Noh
63Constable Kevin Noh has been employed by the OPP for four years. On April 13, 2019, he was working in a marked cruiser. At 3:10 a.m., he received a radio call about a disabled vehicle “at 401 westbound express at 400.” He was told that a tow truck driver stated that the driver of the disabled vehicle was acting strangely. At the time, Constable Noh was aware that Constable McNamee, who was in a different narked cruiser, was already on route.
64Constable Noh arrived at the scene at 3:29 a.m. He said that he parked his cruiser “to the rear of the scene.” When he first arrived at that location, Constable McNamee was speaking with Mr. Manning. Constable Noh initially testified that Constable McNamee and Mr. Manning were standing “next to the grey vehicle.” However, in cross-examination, Constable Noh said that he could not be certain where they were in relation to the vehicle. Constable Noh could not recall if the grey vehicle was on the shoulder or in a live lane.
65He testified that when he approached Constable McNamee and Mr. Manning, he noticed “a strong odour of alcohol” from Mr. Manning’s breath. Constable Noh also testified that Mr. Manning had “glossy teary eyes” and was talking in a “slurred” or “very slurred” manner. According to Constable Noh, the “tempo” of Mr. Manning’s speech was “rather lethargic.” He did not see Mr. Manning swaying while he was speaking with Constable McNamee.
66In cross-examination, Constable Noh said that he did not “approach” Constable Noh or Mr. Manning before Mr. Manning was placed under arrest. Later in the cross-examination, he testified that he initially made the observations about Mr. Manning’s eyes and speech “either just before or at the time” that Mr. Manning was placed under arrest by Constable McNamee.
67Constable Noh testified that at 3:36 a.m. he observed Constable McNamee arrest Mr. Manning for impaired operation. At 3:37 a.m., Constable Noh assisted with a frisk search of Mr. Manning.
68Constable Noh did not notice that Mr. Manning was unsteady on his feet when he walked to the cruiser.
69Constable Noh testified that he then went to the grey car. He said that he “leaned into” the car and found a key in the ignition. Constable Noh said that it was his practice, when conducting a search of a vehicle incident to arrest, to make sure that the vehicle was operable. He testified that he turned the key in the ignition and the car “did turn over.” He explained that when he said the car “turned over” he meant that the engine was on and it was “using gasoline power.” Constable Noh testified that he did not let the car run. Instead, he said that he immediately turned the engine off because the car was about to be towed away. Constable Noh supervised the hooking up of the car to the tow truck. He did not notice, based on the gas gauge, how much gas was left in the tank.
70Constable Noh testified that he left the scene at 3:41 a.m.
71Constable Noh testified that at 3:58 a.m. he assisted with the lodging of Mr. Manning.
72According to Constable Noh, at about the same time, he also assisted another officer at the detachment with the arrest of a different person.
73Constable Noh testified that while in the booking room with Mr. Manning, he continued to smell a strong odour of alcohol coming from Mr. Manning. He said that Mr. Manning’s eyes were “glossy” and he was “very tired looking.”
74Constable Noh testified that while sitting inside the police detachment Mr. Manning was “swaying.” The officer testified that Mr. Manning was also “swaying in his spot” while standing. Constable Noh said that what he observed was a “strong swaying motion, it wasn’t minor.” He also described the swaying as “dramatic.” Constable Noh testified that he was concerned that Mr. Manning might fall down. Constable Noh told the Court that, “from [his] recollection”, all of this occurred when Mr. Manning was in the booking room.
75During cross-examination, defence counsel played a recording taken by a CCTV camera located in the booking room at the OPP detachment.4 The time-stamp on the recording indicates that the recording depicts what occurred from about 3:51 a.m. to 4:02 a.m. on April 13, 2019.
76The video-recording shows that at about 3:52 a.m. Constable Noh entered the booking room. Constable Noh testified that during the period depicted on the video, he was “going through the booking process with Mr. Manning.” Constable Noh was asked whether it was during this period that Mr. Manning, while sitting and standing, was swaying dramatically. Constable Noh confirmed that it was. Constable Noh was asked whether, while watching video-recording from the booking room he noticed the “dramatic swaying.” The officer replied that the “video doesn’t represent what I saw in person.”
77Defence counsel asked Constable Noh whether the “dramatic swaying” was not captured by the recording and the officer answered as follows:
“It’s my testimony to say that my observations and my perspective alone show that he was dramatically swaying while he was sitting there, and while he was standing.”
78Constable Noh added that, “I can still recollect from my memory that he was swaying when he was sitting there, and he was swaying when he was walking and when he was standing there taking the coat off.”
79Constable Noh confirmed that there was no other period during which he was in the booking room with Mr. Manning.
80According to Constable Noh, the video-camera was located “in the corner of the ceiling” – about 10 feet above the ground. Constable Noh testified that for much of the period depicted in the video-recording he was “a foot or two” away from Mr. Manning.
81When asked by defence counsel whether it was possible that his memory on this point could be mistaken, Constable Noh replied, “if you could suggest that sure, but I mean it is from 2019, it was a long time ago, but that’s from my recollection, yes.”
82Constable Noh later assisted in the fingerprinting of Mr. Noh. This process was completed at about 6:36 a.m. Constable Noh testified that he could still smell alcohol coming from Mr. Manning during this period.
83Constable Noh denied defence counsel’s suggestion that he had exaggerated his evidence “throughout [his] testimony with regards to Mr. Manning’s level of impairment.”
Evidence of Constable Jun Choe
84Constable Jun Choe is an OPP officer. He was working in a uniformed capacity on April 13, 2019. He has been a qualified breath technician for over 11 years.5
85At 3:34 a.m., Constable Choe was advised that that Constable McNamee and Constable Noh required a qualified breath technician. At 3:50 a.m., he began to do diagnostic tests on the Inxtoxilyzer 8000C.
86At 4:06 a.m., Constable McNamee advised Constable Chao that she had the following grounds to arrest Mr. Manning: “strong odour of the breath, red glossy eyes, slurring speech, couldn’t find documents and admission to consumption.” Constable Choe did not recall being told that Mr. Manning had been unsteady on his feet.
87Mr. Manning was brought into the breath room by Constable McNamee at about 4:29 a.m.
88Constable Choe testified that he detected a “strong odour of an alcoholic beverage” on Mr. Manning’s breath as soon as he entered the breath room. Constable Choe said that Mr. Manning’s eyes were bloodshot and watery. Constable Choe said that other than the odour of alcohol and Mr. Manning’s bloodshot and watery eyes, he looked “normal.” Constable Chao testified that Mr. Manning’s “speech was good” and his balance was “good.”
89Constable Choe was told that Mr. Manning had spoken to duty counsel. Mr. Manning told Constable Choe that he wanted another opportunity to speak with duty counsel. Based on what Mr. Manning said, Constable Choe concluded that Mr. Manning’s s. 10(b) rights had not been “fully satisfied.” Constable Chao believed that he had an obligation to halt the investigation until Mr. Manning had an opportunity to speak with duty counsel again.
90At about 4:30 a.m., Constable Choe asked Constable McNamee to provide Mr. Manning with another opportunity to speak to duty counsel. Mr. Manning was taken out of the breath room by Constable McNamee.
91It was Constable Chao’s understanding that duty counsel was not immediately available to speak with Mr. Manning. Mr. Manning was placed in a cell. During this time, Constable Chao asked Mr. Manning some standard questions from a four-page document entitled “Alcohol Influence Report.” Constable Chao explained that accused persons who are in custody at the OPP detachment are asked these questions. Constable Chao testified that while he could have asked these questions in the breath room, he decided to “grab the opportunity to cover off…some personal health questions” while waiting for duty counsel. One section of the Alcohol Influence Report is entitled “Personal Health.”
92Constable Chao initially testified that the personal health questions are asked for the safety of an accused person in the event of a medical emergency and are not meant to further an investigation. In cross-examination, defence counsel reviewed some of areas covered by the “personal health” section. These areas included:
Whether Mr. Manning was feeling ill or sick.
Whether Mr. Manning was taking any prescribed medications or non-prescribed drugs.
Whether Mr. Manning’s doctor gave him any warnings about driving after taking his medication or medications.
93It is not necessary to review all of the other standard “personal health” questions. Upon further reflection, Constable Chao conceded that at least some of these questions were unrelated to potential emergency situations that could arise while Mr. Manning was at the OPP detachment. Constable Chao agreed that some of these questions appeared to be designed to further a police investigation. Constable Chao also agreed that these questions should not have been asked until Mr. Manning’s rights to counsel had been “satisfied.” At the end of the cross-examination, Constable Chao stated as follows:
“I’d say it have [sic] been more appropriate if I waited until he speak [sic] to the counsel and then proceeded with these questions.”
94Mr. Manning was brought back into the breath room at about 5:07 a.m. At 5:15 a.m., Mr. Manning provided his first breath sample. The reading for the first sample was 122 milligrams of alcohol in 100 millilitres of blood. The reading for the second breath sample, which was provided at 5:37 a.m., was 117 milligrams of alcohol in 100 millilitres of blood. At 5:41 a.m., Mr. Manning was lodged in a cell.
95Constable Chao testified that between 5:18 am to 5:28 a.m., another accused person was brought into the breath room to provide a breath sample.
III. FACTUAL FINDINGS
Shazad Rashad
96I found Mr. Rashad to be a credible witness. I accept that he noticed both a heavy smell of alcohol coming from Mr. Manning and that his speech was slightly slurred and “delayed.” I also accept his evidence that Mr. Manning appeared to be “out of it, like he was lost.”
Constable Brittany McNamee
97Defence counsel argued that Constable McNamee “appears to have exaggerated all of her observations.” In support of that argument, defence counsel asserted that many of the grounds for the arrest (observations that Constable McNamee said that she made) were not corroborated by other witnesses or by the video evidence from the OPP detachment.
98I found Constable McNamee to be a credible witness.6 She testified in a straightforward way. She was not evasive. Some of Constable McNamee’s observations were corroborated by Mr. Rashad and Constable Chao.7 Mr. Rashad testified that he detected a heavy odour of alcohol coming from Mr. Manning and noticed that Mr. Manning’s slurred his words. Mr. Rashad also testified that Mr. Manning’s speech was delayed and he was “not as responsive as a person should be.” Constable Chao testified that at 4:29 a.m. he detected a strong odour of an alcoholic beverage coming from Mr. Manning and noticed that Mr. Manning’s eyes were bloodshot and watery.
99Not every witness made the same observations as Constable McNamee did. However, on its own, that does not mean that Constable McNamee’s evidence is unreliable: R. v. Maharaj, 2007 CanLII 9884 (ON SC), at para. 34. Constable McNamee was the first police officer who arrived at the scene. She was the officer who spent the most time with Mr. Manning at the scene. The fact that Constable McNamee noticed things that Mr. Rashad did not notice is not surprising – including that Mr. Manning’s eyes were red. Constable McNamee was a police officer looking for signs of impairment or alcohol consumption. Mr. Rashad had no reason to be looking to see if Mr. Manning’s eyes were red or glossy.
100Mr. Rashad testified that he was “positive” that Mr. Manning was standing outside his vehicle when the police arrived at the scene. However, Constable McNamee’s testified that when she arrived at the scene, Mr. Manning was sitting inside his car. Constable McNamee provided a reasonably detailed account of what she said happened when she first encountered Mr. Manning, which included Mr. Manning rolling his window down to speak with her and later being unsteady on his feet when he exited the vehicle. Based on all of the evidence, I have concluded that Mr. Manning was sitting in the driver’s seat of his car when Constable McNamee arrived at the scene. I believe that Mr. Rashad either did not see the first encounter between Constable McNamee and Mr. Manning or he has confused the timing of his observation that Mr. Manning was outside the vehicle when the “police” arrived (keeping in mind that Constable Nao arrived at the scene after Constable McNamee). In considering this evidence, I have also taken into account that Mr. Rashad’s tow truck was in front of Mr. Manning’s car. There would have been times when Mr. Rashad, while sitting in the driver’s seat of his truck, would have been facing away from Mr. Manning’s vehicle.
101Constable McNamee was not asked whether she told Constable Choe that Mr. Manning had been unsteady on his feet. In my view, Constable McNamee should have been asked this question and given an opportunity to explain her answer: R. v. Megill, 2021 ONCA 253, at paras. 109-110. However, based on the evidence that is before this court I accept that Constable McNamee did not tell Constable Choe that Mr. Manning had been unsteady on his feet.
102Constable McNamee’s account about the observations that she made of Mr. Manning was not undermined during cross-examination. Based on all of the evidence, I accept that Constable McNamee made the observations that she described in her testimony, including the following:
The keys to the car were in the ignition;
The dashboard lights were on;
Mr. Manning was inside his car when she arrived at the scene;
There was a strong odour of alcohol coming from Mr. Manning;
Mr. Manning’s speech was slurred and, at one point, it was difficult for Constable McNamee to understand him;
Mr. Manning’s eyes were very red and “looked watery”;
Mr. Manning was unsteady on his feet; and
Mr. Manning could not find his documents.
Constable Kevin Noh
103I carefully reviewed the video-recording of Mr. Manning while he was in the booking room. The video evidence does not support Constable Noh’s testimony that Mr. Manning was swaying while he was in the booking room. I have concluded that Constable Noh’s testimony on this factual matter does not accurately reflect what occurred in the booking room.
104The question is whether this was a credibility or a reliability issue.
105Credibility and reliability are different concepts. Credibility “has to do with a witness’s veracity”: R. v. H.C., 2009 ONCA 56, at para. 41; R. v. Sanichar, 2012 ONCA 117, at para. 36. When assessing credibility, a court must decide whether a witness was being honest when he or she testified. Reliability has to do with “the accuracy of the witness’s testimony”: H.C., supra, at para. 41. When assessing reliability, a court must look to a witness’s ability to accurately observe, recall and recount the events in issue: H.C., supra, at para. 41.
106I saw no basis to find that Constable Noh otherwise attempted to overstate the indicia of intoxication that he observed. For example, Constable Noh did not suggest that he noticed that Mr. Manning was unsteady on his feet before Mr. Manning was placed into a police cruiser. Further, a number of the indica of impairment that Constable Noh testified he observed before Mr. Manning was placed into the cruiser were also noticed by Mr. Rashad and Constable McNamee.
107While a trial judge is entitled to consider demeanour evidence in assessing credibility, a court must avoid giving undue weight to demeanor evidence “because of its fallibility as a predictor of the accuracy of a witness’s testimony”: R. v. Hemsworth, 2016 ONCA 85, at paras. 44-45. In this case, there was nothing in Constable Noh’s demeanour in court that would suggest he was not being truthful.
108In R. v. Stewart (1994) 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509 at pp. 516-517, Finlayson J.A. observed that honest witnesses may convince themselves that inaccurate versions of a given event are correct. I believe that is what happened in this case. I have concluded that Constable Noh did not intentionally misstate what he observed. I accept that Constable Noh honestly believed that he had a memory of Mr. Manning swaying while in the booking room. While it is not necessary to determine precisely how Constable Noh made this mistake, it is possible that Constable Noh made these observations in a location other than the booking room. While unlikely, it is also possible that he confused observations that he made of the other accused who he was dealing with that evening at the OPP detachment (who was also charged with a similar offence) with observations he that he made of Mr. Manning.
109To be clear, I view this as a serious mistake. It is a mistake that should not have occurred. Without the video evidence, it is not a mistake that would have been revealed. In these circumstances, I am not prepared to rely on any of Constable Noh’s evidence regarding Mr. Manning’s behaviour, speech or demeanour in support of the Crown’s position on either the Charter application or the trial proper.8
110A trier of fact is entitled to accept all, some or none of a witness’s evidence. Constable Noh’s evidence that he started the engine of Mr. Manning’s car was not undermined in cross-examination. Determining whether a car’s engine could be started was consistent with Constable Noh’s standard practice in these circumstances. I accept Constable Noh’s testimony that he started the vehicle’s engine.
Constable Jun Chao
111I have concluded that Constable Chao was a credible witness. During cross-examination, he reasonably acknowledged that he should not have asked the standard questions contained in the Alcohol Influence Report until Mr. Manning had another opportunity to speak to duty counsel. I conclude that Constable Chao did not intentionally violate Mr. Manning’s s. 10(b) rights.
112I accept that Constable Chao saw that Mr. Manning’s eyes were bloodshot and watery, and that Mr. Manning had a strong odour of an alcoholic beverage on his breath.
IV. ISSUES
(i) Sections 8 and 9 of the Charter
Introduction
113The defence takes the position that Constable McNamee did not have reasonable grounds, either subjectively or objectively, to arrest Mr. Manning for impaired driving.
Legal Principles
114Section 8 of the Charter provides that, “everyone has the right to be secure against unreasonable search or seizure.” Section 9 of the Charter provides that “everyone has the right not to be arbitrarily detained or imprisoned.”
115The Crown has the onus, on a balance of probabilities, to establish that a warrantless search or seizure was reasonable. In these circumstances, to defeat Mr. Manning’s ss. 8 and 9 claims, the Crown has the burden to prove that the arrest was legal: R. v. Gerson-Foster, 2019 ONCA 405, at para. 75. If Constable McNamee lacked reasonable and probable grounds to arrest Mr. Manning for impaired driving, Mr. Manning’s rights under s. 9 would have been violated: Gerson-Foster, supra, at para. 75; R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353, at paras. 54-55.
116The absence of reasonable and probable grounds would also mean that the demand for a breath sample was made without lawful authority and, consequently, the seizure of the breath samples would be in violation of s. 8 of the Charter: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 13.
117The reasonable and probable grounds standard does not require proof on a balance of probabilities or even a prima facie case: R. v. Canary, 2018 ONCA 304, at para. 23. The test is met where, “based on all of the circumstances known to the officer, ‘credibly-based probability’ replaces suspicion”: Canary, supra, at para. 23.
118Whether reasonable and probable grounds exist:
“…is a “fact-based exercise dependent upon all of the circumstances of the case. The totality of the circumstances must be considered”: R. v. Bush, 2010 ONCA 554, at para. 54.
119There are subjective and objective components to the reasonable and probable grounds requirement: Gerson-Foster, supra, at paras. 77-79; Bush, supra, at para. 38. To satisfy the subjective component, “the officer must hold an honest belief that the person committed an offence.” Canary, supra, at para. 21. The objective component, “is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest”: Bush, supra, at para 38. The officer’s subjective belief must be objectively reasonable in the circumstances known to the officer at the time of arrest: Canary, supra, at para. 2l; Gerson-Foster, supra, at para. 78.
120A court must not look at an officer’s grounds in isolation. Instead, in considering the objective reasonableness of an arresting officer’s subjective belief, a court should adopt the following approach:
“Facts known to an officer at the time of arrest should not be considered within individual silos. The question is not whether each fact, standing alone, supports or undermines the grounds for an arrest. The question is whether the facts as a whole, seen through the eyes of a reasonable person who has the same knowledge, training and experience as the arresting officer, make the arrest objectively reasonable”: Canary, supra, at para. 30.
121The reasonable and probable grounds standard as applied to impaired operation requires an officer to have an honest belief, which is objectively reasonable, that an accused was operating a motor vehicle while his or her ability to drive was even slightly impaired by the consumption of alcohol: Bush, supra, at para. 48.
122Durno J. stated in Bush, supra, at para. 47, that a “slight impairment to drive”:
“…relates to a reduced ability in some measure to perform a complex motor function, whether impacting in perception or field of vision, reaction or response time, judgment and regard for rules of the road.”
123In the context of a breath demand, “the reasonable and probable grounds standard is not an onerous one”: Bush, supra, at para. 46. It must not “be inflated to the context of testing trial evidence”: Bush, supra, at para. 46. However, the standard must also not “be so diluted as to threaten individual freedom”: Bush, supra, at para. 46.
Analysis
The Subjective Component of Reasonable and Probable Grounds
124Defence counsel argued the Crown failed to establish that Constable McNamee had a subjective belief that Mr. Manning’s ability to operate a motor vehicle was impaired by alcohol. It was asserted that, “throughout her investigation, it was clear that the officer is looking for signs of the presence of alcohol, but it’s not clear that she is turning her mind to the question of the accused’s actual impairment.” Defence counsel observed that, while the offences are often linked, two separate inquires must be conducted for impaired operation and “over 80”. In support of his argument, defence counsel noted that Constable McNamee did not explicitly state that she subjectively believed that the presence of alcohol impaired Mr. McNamee’s ability to operate a motor vehicle.
125The subjective belief of a witness can be established through direct or circumstantial evidence: R. v. Stennett, 2016 ONCJ 77, at para. 18. It is not necessary for a witness to explicitly state that he or she subjectively believed that an accused person committed an offence in order for a court to find that the subjective component of reasonable and probable grounds has been established. Judges have often found, based on circumstantial evidence, that a police officer had the requisite subjective belief to support an arrest or a demand for a breath sample: R. v. Grewal, 2018 ONCJ 109, at para. 21; R. v. Hurdon, 2018 ONCJ 667, at paras. 21-30; Stennett, at para. 18; R. v. Hall (1995), 1995 CanLII 647 (ON CA), 22 O.R. (3d) 289 (Ont. C.A.), at para. 36; R. v. Fraser, [1996] O.J. 473 (Ont. Prov. Ct.); R. v. Subramaniam, 2004 CanLII 12189 (ON SC), at para. 33; R. v. Vilvarasa, 2019 ONCJ 411, at paras. 63-66.
126In a prosecution for impaired operation of a motor vehicle, “the essential element of impairment is proven if the evidence establishes any degree of impairment ranging from slight to great”: R. v. Stennett, 2021 ONCA 258, at para. 111 [Emphasis added]. See also: R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), at p. 384, aff’d 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478.
127Impairment “refers to a decreased ability to perform a complex task such as driving a motor vehicle”: R. v. Stennett, 2021 ONCA 258, at para. 23. In R. v. Censoni, [2001] O.J. No. 5189, at para. 42., Hill J. at para. 47 concluded that “slight impairment to drive”:
“…relates to a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, regard for the rules of the road, and the like.”
128The presence of certain physical indica can provide support for a conclusion that a person’s ability to operate a motor vehicle is impaired by alcohol:
Physical indicia such as the inability to stand without swaying, the inability to walk without stumbling or falling, holding onto objects for support all can indicate intoxication or an advanced state of impairment. Physical observations involving lack of balance, slurred speech or disorientation can point to mental impairment caused by alcohol”: R. v. Mok, 2018 ONCJ 487, at para. 16.
129While the offences of impaired operation and “over 80” both “target the same wrongful conduct” (impaired driving), they are “distinct offences with different elements”: R. v. Branco, 2019 ONSC 3591, at para. 134. A person’s ability to drive a car will almost always be impaired by the consumption of alcohol where his or her blood alcohol level is above the legal limit. But not always. A person could have a blood alcohol level above the legal limit and not be impaired: R. v. Rambajan, 2005 CanLII 3370, at para. 31; R. v. Randall, 2015 ONSC 5892, at para. 43. Further, a person whose ability to drive a car is impaired by alcohol could have a blood alcohol that is below the legal limit.
130Constable McNamee’s testimony about her understanding of the grounds that are required to arrest a person for impaired operation was muddled. However, it is clear that Constable McNamee believed that Mr. Manning’s blood alcohol level was above the legal limit because of the strong odour of alcohol and the physical indicia that were entirely consistent with impairment.
131I have already set out my findings about the facts that were known to Constable McNamee before Mr. Manning was arrested. In my view, the only reasonable inference is that Constable McNamee’s subjective belief at the time that she arrested Mr. Manning was that Mr. Manning operated a motor vehicle when his ability to do so was impaired by alcohol.
The Objective Component of Reasonable and Probable Grounds
132Defence counsel argued that the Crown failed to prove the objective component of the reasonable and probable grounds requirement. The foundation for that position was that Constable McNamee “exaggerated her grounds for the arrest.” Defence counsel also argued that Constable McNamee’s belief that Mr. Manning operated the motor vehicle (when his ability to do so was impaired) was not objectively reasonable for another reason. Defence counsel asserted that the Constable McNamee “had no idea” how long the car had been on the side of the road or that Mr. Manning was the driver of the car.
133As I previously stated, Constable McNamee was a credible witness. She did not exaggerate her grounds for arrest. The information known to Constable McNamee at the time she arrested Mr. Manning (and the grounds she relied on to make the arrest) support the objective reasonableness of Constable McNamee’s conclusion that there were grounds to arrest Mr. Manning for impaired operation.
134Based on all of the information that was known by Constable McNamee at the time she arrested Mr. Manning, it was a reasonable inference that Mr. Manning had driven to the location where he was arrested. Further, based on the facts known to Constable McNamee at the time she arrested Mr. Manning, it was also reasonable to conclude that Mr. Manning was impaired when he drove the car to that location. Given all of the circumstances, including that Mr. Manning’s car was located on a very narrow shoulder on one of the busiest highways in Canada, Constable McNamee concluded that Mr. Manning had only been in that location for a relatively short time. In my view, that was a reasonable inference.
135I have concluded that, objectively, there were reasonable and probable grounds to believe that Mr. Manning operated a motor vehicle while his ability to drive was impaired by the consumption of alcohol.
Conclusion
136Mr. Manning’s arrest for impaired driving and the demand for a breath sample were lawful. The ss. 8 and 9 applications are dismissed.
(ii) Section 10(b)
Introduction
137Defence counsel argued that Constable Choe violated Mr. Manning’s s. 10(b) rights by asking Mr. Manning questions after he had asked to speak to duty counsel (for a second time).
Legal Principles
138Section 10(b) of the Charter provides that, “everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”
139An accused person has the evidentiary burden, on a balance of probabilities, to establish that his or her s. 10(b) rights were infringed: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 at para. 30.
140In R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 192, Lamer C.J.C. concluded that s. 10(b) imposes the following duties on the police after arresting or detaining a person:
“(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).”
141Under s. 10(b), the police are required to “hold off” from attempting to elicit incriminatory evidence from a detainee until he or she has had a reasonable opportunity to consult with counsel: R. v. G.T.D., 2018 SCC 7, at para. 2; R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at p. 269.
142The duty on the police to hold off applies to questions that are meant to elicit incriminatory evidence. It does not prevent police officers from asking standard booking questions or making other inquiries that are designed to “assist the accused to exercise his rights, preserve his property, provide care for his family, or protect his health and safety or the health and safety of others”: R. v. Dupe, 2010 ONSC 6594, at para. 24. See also R. v. Palumbo, 2020 ONCJ 584, at paras. 38-44.
Analysis and Conclusion
143While I am satisfied that Constable Choe did not intend to elicit incriminatory evidence from Mr. Manning when he asked questions that are on the Alcohol Influence Report, it is clear that some of these questions were not merely designed to obtain information that the police would require in a medical emergency. Some of these questions were included in the Alcohol Influence Report to rule out reasons for impairment. These questions were designed to elicit answers that would assist in a criminal investigation.
144Prior to asking the standard questions, Constable Chao knew that Mr. Manning wanted an opportunity to clarify some of the legal advice he had been given by duty counsel. Constable Chao had an obligation to hold off asking Mr. Manning questions that could have investigative value until Mr. Manning had an opportunity to speak with duty counsel (for a second time).
145Mr. Manning’s s. 10(b) rights were violated when Constable Chao asked Mr. Manning the standard questions from the Alcohol Influence Report before Mr. Manning had a second opportunity to speak with duty counsel.
(iii) Should the breath samples be excluded under s. 24(2) of the Charter?
Introduction
146Having found that Mr. Manning’s s. 10(b) rights were violated, I turn to the question of whether the breath samples should be excluded under s. 24(2) of the Charter.
Legal Principles
147Mr. Manning has the burden of establishing that the admission of the breath samples would bring the administration of justice into disrepute: R. v. Fearon, [2014] S.C.R. 621, at para. 89.
148A court’s s. 24(2) analysis must consider the long-term impact of the admission or exclusion of evidence on the administration of justice: Grant, supra, at para. 68; R. v. Le, 2019 SCC 34, at para. 140.
149Section 24(2) is “premised on the assumption that there must be a long-term negative impact on the administration of justice if criminal courts routinely accept and use evidence gathered in violation of the legal rights enshrined in the Charter”: R. v. McGuffie, 2016 ONCA 365, at para. 60; Le, supra, at para. 140.
150A court must consider each of the three lines of inquiry in Grant to determine whether the admission of the evidence obtained in a manner that infringed the accused’s Charter rights would bring the administration of justice into disrepute. Ultimately, a court must decide whether “a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute”: Grant, supra, at para. 68.
Analysis
The Seriousness of the Charter-Infringing State Conduct
151The first Grant line of inquiry involves an assessment of the seriousness of the state conduct that led to the infringement: Grant, supra, at para. 74.
152Seriousness is a variable, not a constant: R. v. Mahmood, [2011] ONCA 693, at para. 122. Police conduct “can run the gamut from blameless conduct, through negligent conduct to conduct demonstrating a blatant disregard for Charter rights”: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 23. The more serious or deliberate the state conduct that resulted in a Charter violation, the greater the need for a court to dissociate itself from that conduct by excluding evidence connected to that misconduct: Grant, supra, at para. 72. A finding of willful or flagrant disregard of the Charter will increase the seriousness of the conduct. A pattern of Charter-infringing behavior by the police will aggravate the seriousness of the conduct: Grant, supra, at para. 75. On the other hand, inadvertent, technical or minor violations have less of an impact upon the reputation of the administration of justice: Le, supra, at para. 143.
153Constable Chao should have turned his mind to whether the questions from the Alcohol Influence Report could have an investigative purpose before he asked them. The obligation to “hold off” is well-settled.9
154However, I accept that when Constable Chao asked these standard questions it did not occur to him that some of the questions could have an investigative purpose. His decision to ask Mr. Manning these questions before Mr. Manning had an opportunity to speak with duty counsel for a second time was not strategic.
155In most cases the standard questions from the Alcohol Influence Report would be asked after the implementational component of s. 10(b) had been satisfied. This was a fact-specific scenario. While the s. 10(b) breach was not the product of institutional or systemic abuse, that is not a mitigating factor: Harrison, supra, at para. 25.
156The defence has not established a pattern of Charter infringing conduct by the police.
157I have concluded that the s. 10(b) breach was not at the serious end of the spectrum.
The Impact of the Breach on the Charter Protected Interests of the Accused
158The second Grant line of inquiry requires a court to assess the “seriousness of the impact of the Charter breach on the Charter-protected interests of the accused”: Grant, supra, at para 76.
159The impact of a constitutional infringement on an accused’s Charter-protected interest is a variable. Charter violations range from technical to highly intrusive: Le, at para. 151; Grant, at para. 76. The more serious the violation on the protected interests of the accused, the greater the risk that the administration of justice will be brought into disrepute: Grant, at para 76.
160A court must consider the extent to which the breach actually undermined the interests protected by the right infringed: Grant, supra, at para. 76; Le, supra, at para. 151.
161In R. v. Willier, 2010 SCC 37, [2010] 2 SCR 429, at para. 28, the Court described the interests protected by s. 10(b) as follows:
“…s. 10(b) provides detainees with an opportunity to contact counsel in circumstances where they are deprived of liberty and in the control of the state, and thus vulnerable to the exercise of its power and in a position of legal jeopardy. The purpose of s. 10(b) is to provide detainees an opportunity to mitigate this legal disadvantage.”
162In this case, Mr. Manning was asked questions by a police officer that could have had evidentiary value before he had an opportunity to seek clarification regarding legal advice from duty counsel. In the circumstances, Mr. Manning was in a vulnerable position and should have been provided access (for a second time) to the “lifeline of counsel” before he was asked questions that could have assisted the prosecution: R. v. Rover, 2018 ONCA 745, at para. 45.
163The Crown did not rely on any information that was provided by Mr. Manning in response to these questions. There is no causal connection between the s. 10(b) violation and the breath samples. The absence of a causal relationship between the s. 10(b) breach and the obtaining of the breath sample is a factor weighing against exclusion: R. v. Lenhardt, 2019 ONCA 416, at para. 11; R. v. Do, 2019 ONCA 482, at para. 12; Rover, supra, at para. 43.
164In my view, the impact of the s. 10(b) violation on the accused’s Charter-protected interests was moderate.
Society’s Interest in the Adjudication of the Case on its Merits
165The third Grant line of inquiry requires an assessment of the societal interest in the adjudication of the case on its merits.
166In McGuffie, supra, at para. 63, Doherty J.A. described the practical impact of the third Grant inquiry as follows:
“…the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.” [citations removed]10
167The reliability and importance of the evidence are two important factors at this stage.
168On the third Grant line of inquiry, a court may consider the seriousness of an alleged offence. However, the seriousness of an offence is a consideration that can cut both ways in a s. 24(2) analysis: Grant, at para. 84. The seriousness of an offence must not take on disproportionate significance in the analysis: Harrison, supra, at para. 34.
169Drunk driving “leaves a trail and death, injury and destruction”: Censoni, supra, at para. 42. There is a “strong societal interest in dealing with drinking and driving cases on their merits”: R. v. Sivalingam, 2019 ONCJ 239, at para. 64.
170The breath sample evidence is reliable and, in this case, is crucial to the prosecution of the “over 80” charge.
171The third Grant line of inquiry favours admission of the evidence.
Conclusion
172After considering all three lines of inquiry mandated by Grant, a trial judge must determine, on balance, whether the admission of the evidence obtained by a Charter breach would bring the administration of justice into disrepute: Grant, supra, at paras. 85-86. There is no rule on how the balance is to be struck: Grant, supra, at para. 86.
173In this case, after balancing the three lines of the Grant inquiry, I have concluded that the admission of the breath samples would not bring the administration of justice into disrepute. Accordingly, the evidence is admissible.
(iv) Has the Crown Proven the Charges Beyond a Reasonable Doubt?
Legal Principles
Presumption of Innocence and Proof Beyond a Reasonable Doubt
174In a criminal trial, an accused person is presumed to be innocent, unless and until the Crown establishes their guilt beyond a reasonable doubt. The Crown must prove each essential element of an offence charged beyond a reasonable doubt. The burden of establishing beyond a reasonable doubt that an accused committed the offence charged “rests with the prosecution throughout the trial and never shifts to the accused”: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 SCR 320, at para. 27.
175A reasonable doubt may be based on the evidence, or absence of evidence. Proof of probable or likely guilt does not satisfy the standard of proof beyond a reasonable doubt.
Circumstantial Evidence
176This case involves circumstantial evidence. When assessing circumstantial evidence a court must consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt: R. v. Villaroman, 2016 SCC 33, at para. 37; R. v. Khan, 2019 ONCA 81, at para. 5.
177Inferences consistent with innocence do not have to arise from proven facts. However, “a mere possibility that alternative explanations are true does not raise a reasonable doubt. Reasonable doubt depends upon reasonable possibility, not conjecture”: R. v. R.A., 2017 ONCA 714, at para. 62; appeal dismissed, 2018 SCC 13, [2018] 1 SCR 307.
Impaired Driving
178Under s. 320.14(1) of the Criminal Code, a person commits a criminal offence when they operate a motor vehicle while their ability to do is impaired to any degree by alcohol.
179Section 320.11 provides that “operate” means, in respect of a motor vehicle, “to drive it or to have the care or control of it.”
180Section 320.35 provides that if it is proved that the accused occupied the driver’s seat, the accused is presumed to have been operating the motor vehicle unless they establish that they did not occupy that seat for the purpose of setting the motor vehicle in motion.
181As previously stated, to prove an impaired driving charge, the Crown must establish beyond a reasonable doubt that an accused person’s ability to operate a motor vehicle was impaired – even slightly – by alcohol at a time he was driving his car: Stellato, supra, at p. 384.
182Where circumstantial evidence, by itself, or equivocal evidence is relied upon to establish impairment, and the “totality of that evidence indicates only a slight deviation from normal conduct it would be dangerous to find proof beyond a reasonable doubt of the ability to drive”: R. v. Andrews, 1996 ABCA 23, at para. 23.
183The Crown is not required to demonstrate “bad driving” on an impaired operation prosecution: R. v. Grant, 2014 ONSC 1479, at para. 61.
Analysis and Conclusion
184After considering all of the evidence that is admissible on the trial proper, I see no other reasonable inference than Mr. Manning’s ability to drive was impaired by the consumption of alcohol. More than one witness noticed that Mr. Manning was slurring his words and that there was a heavy odour of alcohol coming from his mouth. Constable McNamee observed, on more than one occasion, that Mr. Manning was unsteady on his feet. She also saw that Mr. Manning’s eyes were red and watery. Mr. Rashad testified that Mr. Manning appeared to be “out of it, like he was lost.”
185The evidence clearly establishes more than a “slight deviation from normal behaviour”. I am satisfied beyond a reasonable doubt that Mr. Manning’s ability to operate a motor vehicle was impaired by the consumption of alcohol.
186Turning to the issue of whether Mr. Manning had care or control of the car.
187Given all of the circumstances, including the location of the car, the fact that Mr. Manning was the only person with the car, and the fact that there was no alcohol (or empty bottles of alcohol) in the car, I am satisfied that the only reasonable inference is that Mr. Manning drove the car to that location and, at the time, his ability to do so was impaired by alcohol.
188As previously stated, I accept Constable McNamee’s evidence that Mr. Manning was sitting in the driver’s seat when she arrived at the scene. Therefore, Mr. Manning is presumed to have been operating the car unless it is established that Mr. Manning did not occupy that seat for the purpose of setting the car in motion. When Constable McNamee arrived at the scene the key was in the car’s ignition. The dashboard lights were on.
189It is apparent that there was some problem with Mr. Manning’s vehicle. I have taken into account that Mr. Manning did not move the vehicle after Mr. Rashad arrived at the scene. However, based on all of the evidence, I am satisfied beyond a reasonable doubt that Mr. Manning’s car was operable. Constable Noh started the vehicle’s engine. The defence has not established that Mr. Manning did not occupy the driver’s seat for the purpose of setting the car in motion.
190Mr. Manning’s car was on a “very narrow shoulder” on Highway 401 in Toronto. I am satisfied, beyond a reasonable doubt, that there was a realistic risk that Mr. Manning could have caused the car to become a danger by, intentionally or unintentionally, putting it in motion (even for a short distance): R. v. Boudreault, 2012 SCC 56, [2012] 3 SCR 157, at paras. 41-46.
191On the trial proper, I have not relied on Mr. Manning’s statement to Constable McNamee that he ran out of gas in support of the conclusion that he had been operating the car while he was impaired. However, I have considered whether, after taking into account this statement, I had a reasonable doubt. When considering this statement, I applied the principles set out in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742. The principles in W.(D.) are not restricted to cases in which an accused testifies and their evidence conflicts with that of Crown witnesses: R. v. Marki, 2021 ONCA 83, at para. 23. I am not left in a reasonable doubt by Mr. Manning’s statement (when considered together with all of the other evidence and absence of evidence).
192The evidence establishes, beyond a reasonable doubt, that Mr. Manning had care or control of the car.
193The evidence also establishes, beyond a reasonable doubt, that Mr. Manning’s blood alcohol level was over 80 milligrams of alcohol per 100 millilitres of blood at the time he operated the motor vehicle.
194I am satisfied, beyond a reasonable doubt, that the Crown has established all of the essential elements on both counts.
195For the reasons given, Mr. Manning is guilty of both counts.
NORTH J.
Footnotes
- He also described it as “slightly” slurred speech.
- Constable McNamee did not have this card with her when she testified. However, during his testimony, Constable Noh read what is written on the standard OPP rights to counsel card.
- During the course of the trial, defence counsel indicated that there was “no issue” with respect to the wording of the demand.
- There was no audio-recording.
- The defence did not contest Constable Choe’s qualifications as a breath technician. The defence also took no issue with respect to the working order of the instrument.
- I will consider Constable McNamee’s evidence regarding her understanding of the grounds required to arrest a person for impaired operation when I address Mr. Manning’s s. 8 claim.
- For the reasons set out in the next section, I have not relied on Constable Noh’s evidence regarding his observations of Mr. Manning to corroborate Constable McNamee’s testimony.
- After all of the evidence had been introduced, Crown counsel was asked whether the Crown would be relying on the evidence of Constable Noh that he observed Mr. Manning “sway” while standing and sitting while in the booking room. Crown counsel responded, “I don’t see how his evidence really pertains to the Charter to s. 8. But with respect to his evidence on impairment, I – I can advise I probably won’t stress that point. But again, the officer was clear in his evidence that this is what he saw and this is how he interpreted it, and I’ll leave it at that.”
- G.T.D., supra, at para. 4.
- See also: Le, supra, at para. 141.