ONTARIO COURT OF JUSTICE DATE: 2021 10 04 COURT FILE No.: Brampton 19-2040

BETWEEN:

HER MAJESTY THE QUEEN

— and —

DAVID SEEMANGAL

Before Justice M.M. Rahman

Heard August 24 and 25, 2021 Reasons for Judgment released on October 4, 2021

Counsel: Tara Mrejen, for the Crown Daniel Heath, for David Seemangal

RAHMAN, J.:

1. Introduction

1The defendant, David Seemangal, is charged with having excess blood alcohol within two hours of driving. Three Peel Regional Police tactical officers pulled over Mr. Seemangal after watching him do a U-turn on Hurontario Street and driving away from them at what they say was a high speed. The police followed Mr. Seemangal for a short distance after seeing this manoeuvre and noticed that his car was “weaving” and briefly straddling a lane. They eventually pulled him over after he had stopped at a traffic light. The police say that Mr. Seemangal did not immediately pull over and that they drove beside his car with their lights and sirens on. When Mr. Seemangal slowed his car, they pulled their unmarked truck in front of his car slightly to prevent him from being able to drive away. Mr. Seemangal would not look at the officer who initially approached the car, instead staring straight ahead while speaking. When the officer asked Mr. Seemangal to get out of the car, he noticed that Mr. Seemangal staggered, ostensibly because his pants were undone and falling down. The officer did a brief pat-down search and told Mr. Seemangal that he would have to give a breath sample. Another officer took over and formally demanded that Mr. Seemangal provide a breath sample into a roadside approved screening device (ASD). Because the officer did not have an ASD, he radioed police dispatch to have one brought to the scene. A fourth officer arrived with an ASD and Mr. Seemangal blew a “fail” on his first attempt. He was arrested and taken to 22 Division for Intoxilyzer tests.

2Mr. Seemangal applies to exclude his breath samples and Intoxilyzer results on the grounds that the police breached his ss. 8, 9, and 10(b) rights while investigating him. Mr. Seemangal argues that the police lacked the reasonable suspicion required to demand that he provide a breath sample into a roadside approved screening device. He alleges that the ASD was performed without lawful authority and that his detention during the traffic stop was unlawful because the police lacked reasonable suspicion. Mr. Seemangal also alleges that the police’s pat down search before his arrest was unlawful either because he was unlawfully detained or because the police lacked a basis to perform such a safety search. Finally, Mr. Seemangal alleges that his right to counsel was breached once at the roadside, because he was not permitted to speak to counsel, and again at the police division, because he was placed in the breath-test room, allowing police to gather evidence before he spoke to duty counsel.

3The Crown says that there were no Charter breaches during the police investigation. The Crown argues that Mr. Seemangal’s driving and his behaviour gave police sufficient suspicion to make an ASD demand. The Crown also says that the pat-down search at the roadside was justified in the circumstances for officer safety. Finally, the Crown says that there was no breach of s. 10(b) because there was only a short delay in the arrival of the ASD, and because the police did not try to elicit any evidence from Mr. Seemangal before he spoke to duty counsel.

4These reasons explain why I find that the police breached Mr. Seemangal’s rights, but why those breaches do not warrant exclusion of the evidence.

2. Sections 8 and 9 of the Charter

2.1. Summary of evidence about the traffic stop

5Officers Parkin, Mante, and Holmes were driving north on Hurontario Street south of Highway 407 when Mr. Seemangal’s Honda caught their attention. Mr. Seemangal had been driving south on Hurontario but made a U-turn to travel north. All of the officers testified that Mr. Seemangal’s U-turn caused the van that was driving in front of them to brake to avoid a collision. Cst. Parkin remarked that he found the manoeuvre unusual because there was very little traffic on the road, and the Honda could have waited until the van, and the officers’ truck, had passed. After completing the U-turn, the Honda swerved towards the on-ramp for Highway 407, but then swerved back into the curb lane and continued going north. All of the officers testified that Mr. Seemangal was driving fast and exceeding the 70 km/h speed limit, although their evidence was unclear exactly how fast he was going, because they did not measure his speed. Sgt. Holmes, who was driving, testified that he drove up to 110 km/h to catch up to the Honda. The officers also said that they saw the Honda “weaving,” although Sgt. Holmes clarified that it was “weaving within its lane,” and that the car only left its lane once when it was straddling two lanes.

6Eventually the officers caught up to Mr. Seemangal’s car at a red light, where they could see his license plate. When the light turned green, Sgt. Holmes decided to pull over the Honda. He turned on the unmarked truck’s lights and siren. Though the unmarked truck did not have roof lights, it did have red and blue lights elsewhere on the car, including the front window and grill. Sgt. Holmes explained that in addition to using the siren, he used a device called a “rumbler” which causes the inside of the target car to vibrate in case drivers have their music on too loud to hear the siren. All of the officers testified that, though Mr. Seemangal did slow down (Officer Holmes described it as a crawl), he did not immediately stop his car. All of the officers testified that they were concerned that Mr. Seemangal did not immediately stop. Sgt. Mante said that they pulled their truck next to the Honda. He explained that this manoeuvre was meant to ensure that the driver would know they were being pulled over and to allow the police to see the driver so they would be able to identify him if he did not stop. None of the officers gestured to the Honda while they were next to it. Officer Mante described Mr. Seemangal as having a “thousand-yard stare,” because he was looking straight ahead as the police drove next to him. All of the officers acknowledged that this stretch of Hurontario Street does not have a shoulder and that when the Honda was “pulled over” it would have to stop in a live lane of traffic. The only means of getting out of traffic would be to pull into a shopping plaza.

7Eventually, Mr. Seemangal stopped his car in the curb lane and Officer Holmes drove the truck slightly in front of the Honda to cut off one route of possible escape. Once stopped, Cst. Parkin approached Mr. Seemangal at the driver’s side of the Honda and asked Mr. Seemangal for his license and other documents. Cst. Parkin testified that Mr. Seemangal continued looking straight ahead while he spoke to the officer. The officer also could not understand what Mr. Seemangal was saying because he was not looking at him and was mumbling. This behaviour caused the officer some concern. Cst. Parkin asked Mr. Seemangal to step out of his car to ensure that Mr. Seemangal could not drive away. The officer noticed Mr. Seemangal staggered after he got out, but believed it may have been because Mr. Seemangal’s pants were undone and falling down.

8Cst. Parkin did a brief pat-down search of Mr. Seemangal after he was outside the car. Cst. Parkin explained that he did this search to make sure Mr. Seemangal did not have any weapons. He said he did the pat down because Mr. Seemangal had been slow to stop his car and was weaving and the officer did not know “what was going on in the vehicle.”

9Cst. Parkin said he caught a faint odour of alcohol which was otherwise overpowered by a strong smell of cologne. Because it was cold outside, and because the police vehicle did not have seating for a prisoner, the officer had Mr. Seemangal sit in the back seat of the Honda. He told Mr. Seemangal that someone would be taking a sample of his breath. Sgt. Mante then took over the investigation because he had more experience with drinking drivers.

10Sgt. Mante said that he could not smell any alcohol from Mr. Seemangal when he approached him. Mr. Seemangal told the officer that he had not had anything to drink. Sgt. Mante described the response as “mumbly but not quite slurring.” Sgt. Mante said that there was an overpowering smell of cologne coming from Mr. Seemangal and that was all he could smell. Sgt. Mante said that he asked Mr. Seemangal some questions to determine if his behaviour (the “thousand-yard stare” and mumbling) was due to a medical issue or fatigue. After satisfying himself that Mr. Seemangal was not suffering from a medical issue or fatigue, Sgt. Mante decided to request an ASD.

11At 12:07 am, Sgt. Mante made an ASD demand. He explained that he made the demand because he wanted to investigate whether Mr. Seemangal had alcohol in his system. He said that he suspected Mr. Seemangal had alcohol in his system because he found the overpowering smell of cologne abnormal, and in his experience, people try to mask the odour of alcohol with such fragrances. He said, in his experience, that people are not always forthcoming about the fact that they have been drinking, and he was satisfied that Mr. Seemangal was not suffering from fatigue or a medical issue. In cross-examination, Cst. Mante agreed that the “principal reason” he made the demand was that sometimes people lie to police about their alcohol consumption and he wanted to eliminate the possibility that alcohol was involved.

12After making the ASD demand, Sgt. Mante said he informed Mr. Seemangal of his right to counsel. Sgt. Mante testified that he read the demand from his notebook, but because he did not have it with him in court, he did not read out exactly what he said. He testified that Mr. Seemangal replied, “Yes, sir, I understand, I haven’t been drinking, I’m ok.” Sgt. Mante said that to make sure that Mr. Seemangal was “a hundred percent informed of his rights,” he told Mr. Seemangal, “Do you understand you’re being detained to provide a sample of your breath and you can contact any lawyer you wish?” Mr. Seemangal responded, “Yeah, yeah, I know, thank you sir.” Sgt. Mante understood Mr. Seemangal’s responses to mean that he did not wish to speak to a lawyer. Sgt. Mante said that had Mr. Seemangal asked to call a lawyer, he would have been able to at the roadside.

13Cst. Efthyvoulou arrived on scene with an ASD at 12:12 am. She explained that she spoke with Sgt. Mante who told her the grounds for the traffic stop. Cst. Efthyvoulou then made her own ASD demand of Mr. Seemangal at 12:15 am. The officer said that she smelled alcohol from Mr. Seemangal and noticed that his speech was slurred. She escorted Mr. Seemangal to the back of her police cruiser because it was cold outside. Cst. Efthyvoulou read him the ASD demand and informed him of his right to counsel before placing him in the rear seat. She showed Mr. Seemangal how the device worked by doing her own self-test. At 12:20 am Mr. Seemangal provided his first sample which resulted in a “fail.” He was arrested and searched incident to arrest. Cst. Efthyvoulou read Mr. Seemangal his right to counsel and caution at 12:28 am. She then transported Mr. Seemangal to 22 Division to have him provide breath samples into an Intoxilyzer.

2.2. Parties’ positions

14Mr. Seemangal says that he was unlawfully detained when Cst. Parkin asked him to step out of the Honda. More significantly, he says that the police lacked reasonable suspicion [1] to make the ASD demand and to detain him for that purpose. He says that Sgt. Mante’s “singular reason” for making the demand was that he did so because people often lie about their alcohol consumption and he wanted to eliminate the possibility of alcohol. He said that Sgt. Mante’s belief that people sometimes mask the smell of alcohol with fragrance does not help provide any grounds and has no weight in deciding whether his suspicion was reasonable. In addition, Mr. Seemangal says that, viewed objectively, there was nothing about his driving that would support a suspicion that he had alcohol in his body. Mr. Seemangal notes that, despite the police testimony that he was speeding, the officers did not measure his speed in any way, and can only say that they drove 110 km/h to catch up to him. He otherwise drove at a normal speed once the police had caught up to him. Moreover, he says that his failure to stop immediately was not indicative of anything given the lack of any shoulder on which to pull his car over. Further, Mr. Seemangal says that the “thousand-yard stare” described by Sgt. Mante was nothing more than Mr. Seemangal looking straight ahead as a police vehicle, which had been behind him, moved beside him. Mr. Seemangal also says that Cst. Parkin had no basis to do the pat-down search, even if his detention was lawful. He says that Cst. Parkin had no reason to think there was any safety risk and no basis to believe Mr. Seemangal had any weapons. The defence also says that the police breached Mr. Seemangal’s s. 10(b) rights because he could have been given the opportunity to consult counsel at the roadside.

15The Crown argues that the police did not commit any of the alleged breaches and that Sgt. Mante had reasonable suspicion based on Mr. Seemangal’s driving, and his behaviour. The Crown says that based on all the factors know to Sgt. Mante, the fact that Mr. Seemangal had alcohol in his body was a reasonable possibility. The fact that it was not the only possibility or even a strong possibility was not fatal. The Crown also argues that Cst. Parkin was justified in doing a protective pat-down search because Mr. Seemangal’s behaviour and the time of night gave him a reason to be concerned about safety. Regarding the alleged breach of s. 10(b), the Crown argues that the ASD arrived within the “forthwith window” meaning that Mr. Seemangal could not have completed a consultation with counsel at the roadside.

2.3. Analysis

2.3.1. Evidentiary dispute about Mr. Seemangal’s driving

16Before dealing with the substance of the defence’s Charter complaints, I will address the minor factual disputes between the parties. For the most part, the defence accepted the police officers’ evidence. However, Mr. Seemangal does take issue with the police evidence that he was driving fast, that he failed to pull over in a timely manner, and that he was weaving.

17I agree with the defence that there is no objectively reasonable basis for the court to conclude that Mr. Seemangal was speeding. While all of the officers seemed to think that he was driving over the speed limit, none of them took any steps to measure his speed, either by pacing his car or otherwise. There is no way to assess the reasonableness of their belief that he was speeding. As for Mr. Seemangal’s failure to stop immediately, I am satisfied that it took him a fair distance (75 yards) to pull over. Despite having taken a significant distance, I do not think that fact could weigh very heavily in concluding that Mr. Seemangal was either impaired or that he was a flight risk. There was no shoulder on the road on which a car could safely pull over on to. Moreover, when the police drove next to Mr. Seemangal, they made no gestures, so it would be perfectly reasonable for him to continue driving (while looking straight ahead). I say that because most drivers would expect a police car that is passing them to mean that they are not being pulled over and are free to keep driving. While the police could consider the length of time it took him to pull over as a minor factor, I cannot find that it was a compelling factor in showing that he was either impaired, or a flight or safety risk.

18Finally, I accept the police officers’ evidence that Mr. Seemangal’s driving was out of the ordinary in a few respects. First, I accept that the U-turn he made properly drew the officers’ attention and caused them concern. The manoeuvre caused the car in front of them to brake abruptly. Also, the timing of the U-turn was strange because (according to Cst. Parkin) there was little traffic on the road, and it would have made sense to wait for the Honda to wait for cars to pass instead of doing a U-turn right in front of them. In addition to the U-turn, the police were properly concerned by other aspects of Mr. Seemangal’s driving. While there may have been a reason for Mr. Seemangal abruptly moving towards and away from the Highway 407 exit, that was not the only issue with his driving. Mr. Seemangal also drove between two lanes at one point. And he was also described to be weaving within a lane, which I understood to mean not driving centred within his lane. In short, there were some unusual aspects of Mr. Seemangal’s driving that were properly of concern to the police. I will next address what the police were allowed to do based on what they saw.

2.3.2. The roadside detention and ASD demand

19The police had authority to stop Mr. Seemangal based on his driving. Indeed, they arguably had a duty to investigate why he made the abrupt manoeuvre that he did, swerved towards the exit, and appeared not to be driving within his lane, however briefly. The initial stop and detention was lawful and authorized by the Highway Traffic Act (HTA). I cannot agree with the defence that there was any additional detention, beyond this lawful HTA detention, when Cst. Parkin had Mr. Seemangal get out of his car. Cst. Parkin was entitled to continue his HTA investigation of Mr. Seemangal. The fact that Mr. Seemangal was not looking at Cst. Parkin when he spoke to him was unusual behaviour that could properly cause the officer to want to continue the driving investigation, and have Mr. Seemangal step outside the car for that purpose. Cst. Parkin was also having trouble understanding him. There was no additional detention here beyond the already lawful traffic stop and asking Mr. Seemangal to step out of his car did not breach Mr. Seemangal’s s. 9 Charter rights.

20Even though Cst. Parkin may have been justified in having Mr. Seemangal step out of his car, he was not justified in conducting a pat-down search. I cannot agree with the Crown that Cst. Parkin was entitled to conduct the search because of a valid safety concern. Cst. Parkin’s justification for the pat-down search was that Mr. Seemangal did not pull over immediately, and was not looking at him when he answered questions. While I agree that both of those things are unusual, they do not provide a basis to do a pat-down search, however brief. The law requires officers to have a reasonable belief that their safety or the safety of others is at risk. [2] Cst. Parkin’s safety concerns here fall short of being reasonable. I appreciate that traffic stops are risky, particularly when they are done late at night. But the law requires something more than an officer’s discomfort with a situation and some unusual behaviour. Moreover, I note that Mr. Seemangal’s delay in pulling over was not obviously an attempt to evade the police. He was driving slowly (almost a crawl according to Cst. Holmes) and did pull over on his own without being forced to do so. And, as mentioned above, there was no obvious place for him to pull over his car, since there was no shoulder on the road. He was otherwise co-operative during the initial stop. There was no objective safety concern that justified the pat-down search.

21As far as the ASD demand is concerned, Mr. Seemangal correctly observes that a court must assess the belief or suspicion of the officer who makes the demand. [3] In this case, it was Sgt. Mante who took over the investigation from Cst. Parkin and made the breath demand. I agree with the defence that Sgt. Mante’s basis for making the demand did not reach the level of a reasonable suspicion that Mr. Seemangal had alcohol in his body.

22Reasonable suspicion is not a high threshold. It requires only a reasonable possibility (as opposed to a reasonable probability) there is alcohol in the driver’s body. Although the smell of alcohol on a driver’s breath will usually be enough to create reasonable suspicion, it is not essential. [4] Evidence of bad driving, or other behaviour consistent with alcohol consumption, can supply the required grounds. [5]

23In this case. Sgt. Mante said that he made the demand because his observations of Mr. Seemangal’s driving gave him a reasonable suspicion that he had alcohol in his body, having satisfied himself that neither a medical condition nor fatigue explained the unusual driving and behaviour. He also agreed that his “principal reason” for making the demand was that sometimes people lie to police about their alcohol consumption and he wanted to eliminate the possibility that alcohol was involved. The factors that Sgt. Mante observed did not give rise to a reasonable possibility that Mr. Seemangal had alcohol in his body.

24I cannot agree with the Crown’s submission that the fact that alcohol was one of the possible causes of Mr. Seemangal’s driving meant that it was a reasonable possibility. If that were the case, any abrupt driving manoeuvre could give rise to a reasonable suspicion since alcohol would always be a possibility causing someone’s driving to be unusual. There must be some basis to conclude that alcohol is the cause of the bad driving, not simply that it is one of several possibilities. An officer cannot simply see some bad driving and then seek to determine whether alcohol has something to do with it, or administer the ASD to rule out alcohol. Rather, there must be some basis to find that alcohol is involved to allow an officer to reasonably suspect that there is alcohol in the driver’s body. Had Sgt. Mante smelled alcohol, or had any other reason to believe that alcohol was connected to Mr. Seemangal’s driving, his suspicion would have been reasonable. The fact that Sgt. Mante believed that the strong smell of cologne is sometimes used to mask the smell of alcohol did not reasonably provide that connection. Though an officer’s experience is a component of considering the reasonableness of his or her grounds, Sgt. Mante’s experience doing drinking and driving investigations (10 cases) was not extensive. Moreover, the overpowering smell of cologne is not a telltale sign of someone masking the smell of alcohol.

25Because Cst. Mante did not have reasonable suspicion that Mr. Seemangal had alcohol in his body, the ASD demand was not lawful. Consequently, I find that Mr. Seemangal’s ss. 8, 9, rights were violated at the roadside.

2.3.3. Section 10(b)

26Because the ASD demand was made without reasonable suspicion, Mr. Seemangal’s s. 10(b) rights were not suspended at the roadside. In this case, Cst. Mante did inform Mr. Seemangal of his right to counsel at the roadside. Cst. Mante did not explain exactly what he said to Mr. Seemangal when he informed him of his right to counsel, but said that he read him what was in his memo book and that, to ensure he understood, the officer also asked, “Do you understand you’re being detained to provide a sample of your breath and you can contact any lawyer you wish?” Sgt. Mante did not consider either of Mr. Seemangal’s responses to be requests to call counsel.

27I agree with the Crown that Mr. Seemangal did not invoke his right to counsel when he was in Sgt. Mante’s custody. Neither of Mr. Seemangal’s responses specifically invoked his right to counsel. He made it clear to the officer that he understood what the officer told him, and he did not ask to call a lawyer. The defence has the onus of establishing that s. 10(b) was breached. That means the defence has to establish that Mr. Seemangal did in fact trigger the police duty to facilitate access with counsel. The police’s implementational duty only arises once a detainee positively invokes the right to counsel. [6] Mr. Seemangal did not say anything to Sgt. Mante that would have required the officer to let Mr. Seemangal make such a call.

28However, Mr. Seemangal did later invoke his right to counsel when he was with Cst. Efthyvoulou. When she asked him if he wished to call a lawyer, he told her that he wanted to call duty counsel. Cst. Efthyvoulou did not facilitate such a call because, unlike Sgt. Mante, she said that she would not have been able to afford Mr. Seemangal with privacy at the roadside (she also would not have appreciated that the demand Sgt. Mante made was unlawful). Nonetheless, because Mr. Seemangal’s right to consult counsel was not suspended at the roadside, he was entitled to speak to counsel before the police conducted the ASD test. Therefore, Cst. Efthyvoulou, albeit unknowingly, breached Mr. Seemangal’s right to counsel.

29I will next consider the allegation that Mr. Seemangal’s s. 10(b) rights were violated at the police station.

2.3.4. Alleged section 10(b) breach at the police division

30Apart from the s. 10(b) breach that occurred at the roadside, the defence alleges that the police breached Mr. Seemangal’s right to counsel by failing to hold off questioning him when he arrived at the police division.

31Cst. Efthyvoulou drove Mr. Seemangal to 22 Division. When she arrived at the division, she could not take Mr. Seemangal in immediately for booking because another person was being booked. She had to wait in her car with Mr. Seemangal in the sally port. When they eventually entered the division, Mr. Seemangal went through the booking process. Because he had asked to speak with duty counsel, Cst. Efthyvoulou placed a call to duty counsel and left a message asking for a call back. While waiting for the call back from duty counsel, Mr. Seemangal was placed in the breath testing room. As is commonplace, the breath testing room is video and audio recorded. Mr. Seemangal was joined in the breath testing room by the qualified breath technician, Cst. Bonacci. After a short discussion where Cst. Bonacci confirmed that Mr. Seemangal had been informed of his right to counsel, the officer told Mr. Seemangal that they would not start the test until he had spoken to duty counsel. The officer said nothing more to Mr. Seemangal until Mr. Seemangal began asking him questions. The officer answered Mr. Seemangal’s questions and they engaged in what is best described as a polite conversation. At no time did the officer question Mr. Seemangal about anything relating to the offence that he was investigating. Indeed, it was Mr. Seemangal who initiated the conversation, asked most of the questions, and did most of the talking.

32The defence alleges that the police breached s. 10(b) by placing Mr. Seemangal in the audio and video recorded breath room and by engaging him in conversation before he had an opportunity to speak with counsel. [7]

33I cannot agree that there was any breach of s. 10(b) here. Cst. Bonacci did not engage in any prohibited questioning during the s. 10(b) holding-off period. As Crown counsel observes, Cst. Bonacci was simply being friendly and engaging in small talk. He was not trying to elicit evidence. Moreover, there was nothing untoward about placing Mr. Seemangal in the breath testing room. It is well known that police divisions are covered by video cameras in almost any area where a prisoner would be transported or seated. Mr. Seemangal’s walking and other movements would be captured wherever he was in the division. While his speech likely would not have been audio-recorded elsewhere in the division, it could still have been heard by any police officer he spoke to. The defence does not allege, nor does the record support, that the police somehow engineered a situation where Mr. Seemangal’s s. 10(b) rights would be undermined. Although not common, Cst. Bonaci said that detained drivers are sometimes placed in the breath testing room when the cells are full. All that happened here was that a talkative detained driver was placed in the breath testing room to wait for a call back from duty counsel, and a friendly police officer chose not to sit sphinx-like when faced with questions and small talk by a person who found himself in police custody. Cst. Bonacci’s decision to be friendly to someone in trouble did not constitute a breach of s. 10(b).

3. Section 24(2) of the Charter

34The police breached Mr. Seemangal’s s. 8 rights by obtaining a roadside breath sample without lawful authority, and by conducting an unconstitutional pat-down search. They also breached Mr. Seemangal’s s. 10(b) rights because he was detained at the roadside and not afforded an opportunity to consult counsel. Finally, the police breached Mr. Seemangal’s s. 9 rights by initially detaining him for the ASD test without reasonable suspicion. Notwithstanding, the number of breaches, in my view the evidence should not be excluded under s. 24(2).

3.1. Seriousness of the breaches

35The first step in the R. v. Grant, 2009 SCC 32 [8] inquiry considers the seriousness of the breaches. On the one hand, the fact that the police breached three of Mr. Seemangal’s rights would seem to support a finding that the breaches are on the serious end of the exclusionary spectrum and strongly favour exclusion. However, on closer examination, I find that the police’s Charter-infringing conduct here was not as serious as the number of breaches may suggest. Although Sgt. Mante’s knowledge did not rise to the level of reasonable suspicion, the police’s knowledge, as a whole, would have easily reached that level. Cst. Parkin did smell an odour of alcohol from Mr. Seemangal, albeit a faint one. Mr. Seemangal would not look at Cst. Parkin when he spoke to him and Cst. Parkin (and Sgt. Mante) said that he was mumbling. That is why Cst. Parkin became concerned and had Mr. Seemangal step out of the car. Mr. Seemangal’s driving was also concerning. Finally, when Mr. Seemangal got out of his car, his pants were undone and falling down. All of these factors, known to the police collectively, would have supported a lawful ASD demand. In short, Cst. Parkin could have made a lawful demand had he not passed the investigation over to Sgt. Mante. Those grounds also supported the police keeping Mr. Seemangal at the roadside while they investigated further. Moreover, Cst. Efthyvoulou, the officer who actually administered the ASD test, had ample grounds to support taking the test.

36Finally, when considering the s. 10(b) breach, this was not a situation where, in the face of a lawful demand, Mr. Seemangal could have realistically consulted counsel. The ASD arrived quickly, and Cst. Efthyvoulou, who took custody of Mr. Seemangal, could not afford him the privacy he needed to call counsel. Cst. Efthyvoulou did not knowingly breach Mr. Seemangal’s right to counsel. The police here also did not commit the breaches in bad faith. What happened here was three police officers seeing concerning driving late at night. They pulled over a driver who acted unusually. One of them smelled alcohol on the driver. They were concerned that he might be a drinking driver and so they detained him for a short period of time until an ASD arrived. Sgt. Mante advised Mr. Seemangal of his right to counsel and would have allowed him to make a call had he asked. The police were otherwise respectful of his s. 10(b) rights. In my view, the seriousness of the breaches is sufficiently mitigated so that the first step of the Grant inquiry favours admission.

3.2. Impact on Charter-protected interests

37The second step of the Grant inquiry considers the impact of the Charter breaches on the defendant’s Charter-protected interests. The impact on Mr. Seemangal’s Charter-protected interests for the ss. 8 and 9 Charter breaches was not significant. As the Crown observes, the impact of the s. 8 breach resulting in the seizure of breath samples, is not a significant intrusion into a defendant’s privacy interests. [9] The same goes for the brief pat-down search. It was even less intrusive on Mr. Seemangal’s privacy interests than the seizure of his breath samples. Moreover, considering all of the circumstances at the roadside, the length of Mr. Seemangal’s unconstitutional detention was not significant. Mr. Seemangal was not properly detained for the arrival of an ASD. But once he was in Cst. Efthyvoulou’s custody, and she noticed signs of alcohol consumption, his detention was justified. The period between the demand and the arrival of the ASD was only five minutes. This was not a case where Mr. Seemangal was detained without grounds for a lengthy period.

38The impact of the s. 10(b) breach was more significant than the ss. 8 and 9 breaches. Though Mr. Seemangal was not initially interested in speaking to a lawyer, he invoked his right to counsel when he was about to take the ASD test with Cst. Efthyvoulou. Depriving a detainee of the right to counsel will often have a significant impact on an accused’s Charter-protected interests because they are in a situation where “they are apt to require immediate legal advice that they cannot access without help, because of their detention.” [10] In my view, this step of the Grant inquiry favours exclusion, albeit not strongly, principally because of the s. 10(b) breach.

3.3. Effect of exclusion

39As the defence acknowledged the final step of the Grant inquiry here favours admission. The breath testing evidence is reliable, and the effect of its exclusion would be to gut the prosecution’s case. This step strongly favours admission.

3.4. Balancing the Grant factors

40After balancing the three Grant factors, I conclude that the evidence should not be excluded under s. 24(2). Only the second of the Grant factors favours exclusion. The other two factors both favour admission. I realize that the balancing of factors under Grant is not a simple matter of counting which way the majority of them points. But when the factors are balanced, the long-term repute of the administration of justice is best served by admitting the evidence. The police conduct here fell short, but it did not fall that short. Indeed, had a different officer (Parkin) taken charge of the investigation, there would only have been one breach (the pat-down search). The impact on Mr. Seemangal’s privacy and liberty interests was not significant. The impact on his right to consult counsel at the roadside counsel must be considered against the backdrop of the police’s conduct, which was not serious or neglectful of his Charter rights. I also note that the right to counsel would not have even been triggered if Cst. Parkin, rather than Cst. Mante, had carried out the investigation. I am not satisfied that the defence has established that the evidence should be excluded under s. 24(2).

41Because the Grant inquiry does not lead to the exclusion of evidence, the defence application to exclude evidence is dismissed.

4. Conclusion

42The defence takes no issue with the fact that, if the Charter application was dismissed, the evidence clearly makes out the excess blood alcohol offence. Therefore, I find Mr. Seemangal guilty of having excess blood alcohol within two hours of driving.

Released: October 4, 2021 Justice M.M. Rahman

[1] Both parties agree that, because the tactical officers did not have an ASD with them, the police required reasonable suspicion that Mr. Seemangal had alcohol in his body before making the ASD demand. [2] R. v. Peterkin, 2015 ONCA 8 at para. 44. [3] R. v. Gerson-Foster, 2019 ONCA 405 at paras. 77-78; R. v. Bakal, 2021 ONCA 584 at para. 98. [4] R. v. Walsh, 2019 ONSC 2337 at para. 18. [5] Walsh, supra, at paras 17-18: see also, R. v. Shepherd 2009 SCC 35 at para. 23, where the Supreme Court said a driver’s confusion could meet the higher threshold of reasonable belief of impairment. [6] R. v. Sinclair, 2010 SCC 35, at para. 27; R. v. Owens, 2015 ONCA 652, at para. 25. [7] The defence does not allege that the delay in Mr. Seemangal actually speaking to duty counsel violated s. 10(b). [8] R. v. Grant, 2009 SCC 32. [9] R. v. Jennings, 2018 ONCA 260 at paras. 30-32. [10] R. v. Noel, 2019 ONCA 860 at para. 23.