ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
HARJEET KAUR
Before Justice P.T.O’Marra
Heard on October 7,14, November 9, 2020 and September 9, 10, October 7, 2021
Reasons for Judgment released Orally on December 22, 2021
T. Mrejen counsel for the Crown
A. Little and A. McQuaig counsel for the accused Harjeet Kaur
P.T. O’MARRA J.:
1Harjeet Kaur stood trial for the offence of operating her motor vehicle with excess blood alcohol on July 5, 2019, contrary to section 320.14(1)(b) of the Criminal Code of Canada.
2The Crown elected summarily.
3Ms. Kaur argued that she was subjected to several Charter violations under section 8, 9, and 10(b) by and including the delays surrounding the Alcohol Screening Device (ASD). Ms. Kaur also alleged that her section 10(b) right was infringed because the police channelled her to speak to duty counsel rather than providing her with a reasonable opportunity to speak to her counsel of choice. A further violation of Ms. Kaur's right not to be subject to an arbitrary detention was alleged to have occurred as result of Ms. Kaur being overheld for approximately 5.5 hours after she provided her breath samples. As a result, Ms. Kaur seeks the exclusion of the breath samples, pursuant to s. 24(2) of the Charter.
4The matter proceeded by way of a blended voir dire. The parties agreed that the evidence adduced at the voir dire would apply to the trial proper.
Evidence surrounding the delay and information provided at the roadside: Charter ss. 8, 9, 10 (a) and (b)
Constable Huntington's evidence:
Direct Examination:
5At approximately 3:03 am, police received a call regarding a possible impaired driver in the area of North Park Drive and Torbram Drive that had jumped a curb.
6Constable Huntington was dispatched to attend the location. At 3:04 am he arrived on scene and positioned his vehicle behind Ms. Kaur's 2009 Nissan Altima which was parked in the curb lane of Torbram Road. Ms. Kaur was seated in the driver's seat. There was a passenger beside her in the front seat.
7Constable Huntington approached the driver's side. Ms. Kaur was upset that her car could not start. Constable Huntington observed that Ms. Kaur's eyes were watery. He detected a slight odour of alcohol along with the scent of perfume.
8Constable Huntington asked Ms. Kaur to exit her car and go to the sidewalk as it was much safer for both. Constable Huntington decided to leave Ms. Kaur and walk approximately 200 feet to speak to the complainant, Christopher Connelly. Mr. Connelly confirmed that nobody had exited the car and switched positions before the police arrived.
9Constable Huntington called for an ASD. At 3:13 am Constable Breitenbach was dispatched to bring an ASD to the scene.
10Constable Huntington could not recall the exact time that he formed his reasonable suspicion other than it was formed before he called for the ASD.
11According to Constable Huntington he did not read to Ms. Kaur her rights to counsel. He called the omission a "lapse in judgment.”
12At 3:17 am, Constable Breitenbach arrived with the ASD. After Constable Huntington explained the situation to Constable Breitenbach, he administered the ASD to Ms. Kaur which registered a "fail."
Cross-examination:
13Constable Breitenbach testified that based on the call information he believed that he was investigating a possible impaired driver.
14He did not have an independent recollection of the conversation that he had with Ms. Kaur through her open window. He estimated that he spoke to Ms. Kaur for approximately two to three minutes before he left to speak to Mr. Connelly for a further couple of minutes.
15Constable Breitenbach did not express to Ms. Kaur why she was asked to exit her car.
16Constable Breitenbach agreed that at 3:06 or 3:07 am he formed a reasonable suspicion that Ms. Kaur had alcohol in her body before he spoke to Mr. Donnelly. Before the ASD had arrived at 3:17 am, he did not make an ASD demand nor read Ms. Kaur the right to counsel. Constable Breitenbach admitted that he "made a mistake" by not doing so.
Constable Breitenbach's evidence:
Direct Examination:
17On July 5, 2019, Constable Breitenbach was a field training office on general patrol when he received a call at "very close to 3:17 am" that Constable Huntington required an ASD.
18After he arrived on scene at 3:17 am Constable Breitenbach spoke for a few minutes with Constable Huntington. Constable Breitenbach found Ms. Kaur seated in the driver's seat. He received her driver's licence. He testified he tried to smell alcohol on her breath but could only smell her perfume, and asked Ms. Kaur to step out of her vehicle. Constable Breitenbach observed that Ms. Kaur had watery and glossy eyes, slightly slurred speech and had the smell of alcohol on her breath.
19At 3:20 am, Constable Breitenbach formed his reasonable suspicion.
20At 3:26 am, he read the ASD breath demand to Ms. Kaur.
21He found Ms. Kaur argumentative and difficult to deal with. He felt that she attempted to delay the process.
22At 3:27 am, Constable Breitenbach self-tested the device in front of Ms. Kaur.
23It took Ms. Kaur (4) four to (5) five attempts to provide a suitable breath sample into the ASD.
24At 3:29 am, Ms. Kaur registered a "fail." At the same time, Constable Breitenbach placed Ms. Kaur under arrest for excess blood alcohol.
25At 3:30 am, Constable Breitenbach read the rights to counsel to Ms. Kaur from his notebook. When Ms. Kaur was asked if she wanted to speak to a lawyer she answered, "I will find one".
26At 3:34 am, Constable Breitenbach read the formal breath demand to Ms. Kaur. She was handcuffed.
27At 3:41 am, they left the scene and arrived at 21 Division at 3:46 am.
28At 3:52 am, Constable Breitenbach contacted duty counsel and at 4:06 am, duty counsel called back.
29Ms. Kaur spoke to duty counsel. Constable Breitenbach could not recall if Ms. Kaur expressed dissatisfaction with her call to duty counsel.
30At 4:28 am, Ms. Kaur was turned over to the breath technician. Constable Breitenbach remained in the breath room throughout the breath testing process.
31At 4:43 am, Ms. Kaur provided her first breath sample which registered 176 mg. of alcohol in 100 ml. of blood. Her second sample was taken at 5:07 am registered 174 mg. of alcohol in 100 ml of blood.
Cross-examination:
32Constable Breitenbach testified that after the second sample of her breath was provided, Ms. Kaur was placed in a holding cell at 5:20 am.
33Constable Breitenbach did not recall if he contacted the registered owner; however, he testified that the standard practice was for the officer that arranged for a car to be towed, was usually responsible to contact the registered owner.
34Constable Breitenbach testified that he never asked Ms. Kaur if there was anyone who could pick her up, nor was it ever conveyed to him that there was someone that had attended the division to pick up Ms. Kaur.
35Constable Breitenbach could not recall if he decided to call duty counsel on Ms. Kaur's behalf. He confirmed that there was nothing in his notes that Ms. Kaur asked for duty counsel to be contacted. However, he testified that it was "unlikely that I decided for her that she should speak to duty counsel." Constable Breitenbach agreed that he should have recorded that conversation in his notebook.
36Ms. Kaur was asked at the roadside if she had a lawyer. After she responded, "I can find one,” Constable Breitenbach confirmed that there was no follow up conversation either at the scene or at 21 division.
37Constable Breitenbach conceded that he did not record in his notebook any discussion if Ms. Kaur was satisfied with her conversation with duty counsel. He testified that it was common practice for the breath technician to confirm that on video. He was certain that was done in this case.
38Constable Breitenbach initially testified that he smelled alcohol on Ms. Kaur's breath once she stepped out of her car; however, his notes reflected that he smelled alcohol when he started the ASD procedure at 3:26 am.
Affidavit of Baljinder Dhillon:
39On consent counsel filed an affidavit sworn on September 6th, 2021 from Baljinder Dhillon, Ms. Kaur's roommate. The Crown declined to cross-examine on the contents of the affidavit.
40Dhillon has known Ms. Kaur for approximately 9 years.
41On July 5, 2019, Ms. Kaur lived with Mr. Dhillon and a third roommate at a residence located at 136 Bunchberry Way, located in Brampton. They lived approximately (7) seven or (8) eight minutes away from 21 Division.
42Mr. Dhillon was the registered owner of the motor vehicle that Ms. Kaur drove that morning.
43At 3:30 am, Mr. Dhillon recalled receiving a call from a police officer. Mr. Dhillon was told the Ms. Kaur was under arrest.
44Mr. Dhillon was told that he could attend the division to pick up Ms. Kaur.
45At approximately 4:15 or 4:30 am he attended 21 division. He was told that Ms. Kaur was not ready to be released. He waited until 5:30 am.
46At 5:30 am, he asked if Ms. Kaur was ready to be released. He was advised that she was not ready and told to return at 7:00 am.
47At 7:00 am, Mr. Dhillon returned to 21 Division; however, was advised to return sometime after 8:00 am. Mr. Dhillon became agitated.
48For every 15 minutes, Mr. Dhillon attended the front desk to inquire when Ms. Kaur was going to be released.
49At approximately 10:30 am, Ms. Kaur was finally released.
50After Ms. Kaur was released, they immediately attended a lawyer's office in Toronto to discuss what had happened.
51Mr. Dhillon was aware that whenever Ms. Kaur was going to be released, she was not permitted to drive.
52Mr. Dhillon's evidence as to what he was told is hearsay and inadmissible.
Constable Bowes' Evidence:
Direct Examination:
53Constable Bowes was the qualified breath technician in this matter.
54Constable Bowes received Ms. Kaur at 4:25 am to commence the breath testing procedure.
55That morning he was operating the Intoxilyzer 8000C, serial number 80-005093 an approved instrument.
56At 3:51 am, he found the instrument in "standby mode." He pressed the "start test" button.
57At 3:54 am, the instrument was ready for the quality assurance check.
58At 3:56 am, he conducted the system calibration check. He verified that that the instrument simulator was operating at 34 degree Celsius. According to Constable Bowes the instrument was in in proper working order since the calibration check registered 94 milligrams which was in between the acceptable parameters of 90 to 100 milligrams.
59The calibration check indicated #8 which according to Constable Bowes meant that the solution had not expired and had been used 8 times.
60The calibration check registered 93 milligrams of alcohol in 100 ml of blood.
61At 3:58 am, Constable Bowes conducted a self breath test which registered 0 milligrams.
62At 4:42 am, the system blank test registered 0.
63Constable Bowes testified that the first sample of Ms. Kaur's breath taken at 4:43 am registered 176 mgs of alcohol.
64After the first result, Constable Bowes testified how the instrument conducted the same air blank, system, and calibration tests to ready itself for the second test.
65At 5:07 am, the second sample of Ms. Kaur's breath registered 170 mgs of alcohol.
66At 5:09 am, Constable Bowes ended his involvement with Ms. Kaur.
Cross-examination:
67During the breath testing process, Constable Bowes asked Ms. Kaur several questions. He confirmed that she understood his questions.
68Ms. Kaur advised Constable Bowes that there was someone that could pick her up. She further suggested that she could take an Uber home. Constable Bowes never relayed Ms. Kaur's suggestions to the Staff Sergeant.
69According to Constable Bowes, aside from the high readings, he felt that there was no other reason that Ms. Kaur could not have been released after she was served with the Intoxilyzer documents at 5:30 am. However, that was not his decision, but rather the Staff Sergeant to make that morning.
70Constable Bowes testified that he believed that it was permissible for detainees to take an Uber once they are released from the division. However, that decision is based on "how impaired the person is."
71Constable Bowes did not think that Ms. Kaur was intoxicated but felt that her ability to operate a motor vehicle was impaired by alcohol based on the readings. However, that opinion was conspicuously absent in his notes.
72Constable Bowes testified that he was taught as part of his training that calibration check parameters are 90 to 110 milligrams. If, the calibration check registered below or above that parameter, the instrument emitted a beeping sound and the instrument will not permit the test to proceed.
73Constable Bowes believed that the alcohol concentration solution standard was 100 milligrams of alcohol.
74Constable Bowes agreed that he did not take any independent steps to confirm the accuracy of the alcohol standard solution was indeed 100 milligrams.
Voir Dire regarding the admissibility of the test record:
75As was his prerogative, counsel insisted that the Crown demonstrate compliance with section 320.22 of the Code for the test record to be admitted into evidence.
76After hearing the evidence on the voir dire, I ruled that the statutory pre-requisites had been met by the Crown and the test record was admissible, subject to the Charter Application.
My previous ruling:
77After the Crown initially closed its case and relied on the certificate of analysis, counsel argued that the Crown had not met that the statutory pre-requisites of service and reasonable notice to Ms. Kaur that the Crown was intending to produce the certificate at her trial, pursuant to section 320.32(2) of the Code.
78I ruled that the Crown had failed to comply with section 320.32(2) of the Code and the certificate was ruled inadmissible. (See: R. v. Kaur, 2020 ONCJ 538, [2020] O.J. No. 5161) However, I permitted the Crown to re-open its case and call Cst. Bowes on the trial proper.
The Evidence of Staff Sergeant Miller
Direct Examination:
79Staff Sergeant Miller has held this rank for the last 2 ½ years. Previously, he was a Sergeant for (5) five years. Overall, he as been a police officer for approximately (25) twenty-five years.
80After reporting for duty on July 5, 2019, he attended the cell area at 5:17 am to meet Ms. Kaur. He was told that Ms. Kaur was charged with the offences of "impaired and excess blood alcohol."
81Staff Sergeant Miller asked several wellness questions. There were no immediate concerns raised regarding her mental or physical health.
82Ms. Kaur was released from custody at 10:32 am on a Promise to Appear Notice.
83The decision to release Ms. Kaur and any other detainees was Staff Sergeant Miller’s prerogative. He was called by the Crown in response to the over holding issue raised in the Charter Application and asked to explain the factors that were at play in making that decision.
84Staff Sergeant Miller was familiar with Ms. Kaur's readings. He asked her if there was anyone that could pick her up. He testified that she "did not want to call the people that she lives with to come pick her up and that she wanted to take an Uber home."
85Staff Sergeant Miller's primary concern was if she was released at that time, she could potentially drive again and cause an accident. Specifically, he was not content to let her leave in an Uber as he did not know if she could access another vehicle at home to drive again.
86He mentioned that another consideration in releasing Ms. Kaur early was whether she could understand her promise to appear notice.
87According to Staff Sergeant Miller using what he described the "depletion of the blood alcohol concentration" of 15 milligrams per hour, he calculated that by 10:00 or 10:30 am Ms. Kaur's BAC would be much lower.
Cross-examination:
88Staff Sergeant Miller was adamant had Ms. Kaur indicated that there was someone who could have picked her up, such as a co-worker or a family member, he would "have entertained that idea…but in this case here, she was unwilling to do that."
89He believed that either the breath technician or the arresting officer advised him that Ms. Kaur was charged with both offences even though the detailed property report indicated that Ms. Kaur was only charged with excess blood alcohol.
90When Staff Sergeant Miller attended the cell area at 5:17 am, he never asked Ms. Kaur any questions to determine if she would have understood the terms of her release.
91Normally, if someone attended the division to pick up a detainee, the front desk personnel should notify the Staff Sergeant. Staff Sergeant Miller was never told that anybody attended and was available to drive Ms. Kaur home. He testified that had he been made aware of that fact; he would have released Ms. Kaur. However, he testified that given her high readings he may not have been prepared to release her at 5:30 am.
92Staff Sergeant Miller testified that based on his brief conversation with Ms. Kaur and her readings he believed that Ms. Kaur was "impaired." He confirmed that his observations regarding her impairment were not written in his notebook.
93He had a further conversation with Ms. Kaur at 8:00 am and continued to believe that she was still impaired.
94Staff Sergeant Miller denied that the singular reason for detaining Ms. Kaur was her high blood alcohol concentration. There were other factors, however, those other factors were not noted in his notebook at 5:17 am.
95When he was asked to describe the signs of "intoxication," and the paucity of notes on the issue, Staff Sergeant Miller recalled the following observations:
Ms. Kaur had the odour of alcohol on her breath.
Ms. Kaur was agitated and in an "excited state."
Ms. Kaur displayed "typical impaired observations."
96Staff Sergeant Miller confirmed that the Peel Regional Police Service has a Directive on the factors to consider when a decision has to be made to continue the detention of a person charged with a drink drive offence or release that individual. The policy indicates that the decision maker must document in his or her notes reasons why someone is released or held. In this case, Staff Sergeant Miller did not follow the Directive. He also testified that he did not have an independent recollection for the reasons behind Ms. Kaur’s continued detention.
97At 8:00 am, Staff Sergeant Miller spoke to Ms. Kaur but did not recall that Ms. Kaur wanted someone to contact her work to let them know that she was not coming into work that morning.
98The cell surveillance video was played for Staff Sergeant Miller, which did not have any audio. The video was played at 5:17am for a period of (5) five minutes. Staff Sergeant Miller confirmed that it appeared that Ms. Kaur was not in an agitated or excited state or displayed any obvious signs of intoxication; however, he qualified his answer by suggesting that the picture quality was not "great."
99Staff Sergeant Miller confirmed that Ms. Kaur did not have slurred speech or red, watery, or glossy eyes or unsteadiness on her feet. He testified that if, Ms. Kaur displayed that indicia, he would have noted it.
100At 8:00 am, according to his notes, Staff Sergeant Miller returned to the cell area, to explain the release procedure to Ms. Kaur and to see if a ride could be arranged. He also confirmed that his notes indicated that at this time Ms. Kaur showed "less signs of impairment," which still did not hasten her release. He could not recall, nor did he document the signs of impairment that he observed.
101According to Staff Sergeant Miller, Ms. Kaur indicated to him that she did not want her friends to come and get her, as that would take longer for her to be released. She pleaded to be released at that moment and take an Uber home rather than waiting for someone to show up which would delay her release.
102Staff Sergeant Miller testified that based on his "depletion rate" that at 8:00 am Ms. Kaur's blood alcohol concentration would have been approximately 125 mgs of alcohol. Even at that level, Staff Sergeant Miller would not have permitted Ms. Kaur to leave on her own and to take an Uber home. He testified that he was concerned that if she left the division, she could access another vehicle and drive while her BAC was above the legal limit. However, he never inquired with Ms. Kaur if she had access to other vehicles. His standard practice was only to release a detainee charged with a drinking and driving offence if his or her BAC was below 100 mgs.
103Staff Sergeant Miller agreed that if he had known that someone had attended the division between 5:30 and 8:00 am to drive her home that he may have released Ms. Kaur.
104Staff Sergeant Miller testified that it was possible that he denied Ms. Kaur’s request to access her cellphone in order that she could call her work.
105Counsel played (11) eleven video clips that seemed to show Ms. Kaur emphatically talking and pleading with cell officers. Staff Sergeant Miller was never advised about any their conversations or any of the concerns expressed by Ms. Kaur.
106Staff Sergeant Miller confirmed that he was aware that Ms. Kaur was served with the 90 day driver's licence suspension, the vehicle that she had been operating had been impounded and that she did not have a criminal record or any outstanding charges. He did not have any concerns regarding her ability to comprehend questions and conversations.
107Staff Sergeant Miller was aware that the police were not to unreasonably detain individuals after their breath tests and can be expected, according to the policy, to articulate the reasons an accused was not immediately released after breath testing. There was nothing in his notes to articulate his reasons for not immediately releasing Ms. Kaur.
Harjeet Kaur's Testimony:
Direct Examination:
108Ms. Kaur is a permanent resident originally from India. She arrived in Canada eleven years ago. Currently, she is 33 years old.
109On the date of her arrest, Ms. Kaur was employed as a customer service representative. Three months earlier she was promoted to a senior position within her company. She was renting a room in a three-bedroom house in Brampton, from her friend and co-worker, Baljinder Dhillon. There was a third tenant, Anjali. She no longer resides at this address, but at the time her home was approximately a 10-15-minute drive from 21 Division.
110Ms. Kaur recalled that after the breath samples were provided, she was taken to a cell. She was shown several video clips during her direct examination. She confirmed that at 6:01 am she was crying because she was anxious and worried about her work. She was afraid that if she did not show up to work that morning that she would be fired.
111At 6:45 am, she stood at the bars trying to get the police officers' attention so she could make a call to her work.
112She testified that had she been released earlier she would have called her roommate to come and get her. But at 8:00 am, when Staff Sergeant Miller offered to call someone for her, she just wanted to take an Uber home rather than wait any longer.
113At 10:18 am, when she was released from her cell, she signed the release papers and saw Mr. Dhillon waiting for her in the lobby. She did not expect to see him since no one ever told her that he was waiting while she was in the cell. Had the police advised her at 8:00 am that he was waiting for her, she most definitely would have gone with him.
114After Ms. Kaur left the division with Mr. Dhillon, they immediately drove to a lawyer's office in Toronto to discuss this matter.
115With respect to exercising her right to counsel, Ms. Kaur maintained that she had the name and number of a lawyer, Jonathan Rosenthal in the contacts in her iPhone. She was given his name by her immigration lawyer.
116When asked by the police if she had a lawyer Ms. Kaur responded, "I can find one," which was never followed up by the police. As a result, she was taken to a private room and put in contact with duty counsel. She was not satisfied with the conversation with duty counsel. She did not express her dissatisfaction to the police. Asked why she did not, Ms. Kaur stated the following:
Because being first time there and I, I thought that's a part and - it's a procedure and it's a procedure to be in - like, at the booking office and after that I have to go through this. Like, I thought this is a procedure to be followed.
117Ms. Kaur testified that it was not her decision to speak to duty counsel.
Cross-Examination:
118Ms. Kaur testified that on the night of her arrest she did drink some wine, however, could not recall how much she consumed. She may have taken an Advil too. She was drove that morning to pick up her friend and roommate, Anjali because she missed her Uber pick up somewhere in Brampton.
119She confirmed that she told the breath technician that she wanted her roommate and owner of the house contacted in order to pick her up. She also recollected telling the Staff Sergeant that she wanted to take an Uber home later.
120She did not recall the police asking her if she wanted to speak to duty counsel.
Issue #1: Was the ASD demand made forthwith or immediate pursuant to section 320.27(1) of the Code?
Forthwith v Immediacy:
121Section 320.27 of the Code requires that a person comply with a screening demand "immediately." The prior provision required compliance "forthwith." In R. v. Woods, 2005 SCC 42, [2005] S.C.J. No. 42, the Supreme Court held at paragraph 13 that the "forthwith" requirement in the prior s. 254(2) meant, "immediately" or "without delay." The prior case law concerning the "forthwith" requirement applies to the immediacy requirement as the terms are equivalent. See: R. v. Bali, 2021 ONCJ 128, [2021] O.J. No. 1127, at para. 8; R. v. Speers, 2020 SKQB 199, [2020] S.J. No. 319, at para. 9, R. v. Garland, 2020 NSPC 47, [2020] N.S.J. No. 431, at para. 13.
122The use of "immediately" instead of "forthwith" in the context of s. 320.27 is simply a modernization of the language without any change in meaning. This view is supported by the use of the same term "immediately" ("fournir immédiatement") in the French version of s. 254(2) and in the current section 320.27(1). See: R. v. Kuznetsoff, 2021 ONCJ 124, [2021] O.J. No. 1125, at para. 6.
123The section does not explicitly require that the police officer's demand be immediate, rather, it only specifically requires that the motorist comply immediately. However, it is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body. That is the only interpretation that would be consistent with the limit on the s. 10(b) right to counsel in that section. See: R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779, at para. 25.
124The immediacy requirement in s. 320.27 necessitates the courts to consider five things:
125First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
126Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.
127Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).
128Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.
129Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met. See: Quansah, at paras. 45-49.
130In the context of the old s. 254(2) provision, the Quebec Court of Appeal held that for an ASD demand to be valid, the officer must have the device in hand. The section does not authorize a delay for a device to be brought to the scene. The court overruled their prior 2005 finding to the contrary in Petit c. R., 2005 QCCA 687, [2005] No. 9804. See: Breault v. R., 2021 QCCA 505, [2021] No. 2793, at para. 46, application for leave [2021] S.C.C.A. No. 173.
131Where a police officer is not in full control of a situation, delay in making an ASD demand or breath sample because an individual is uncooperative is justified. See: R v Friesen, 2012 SKQB 4888, at paras. 7-9.
The application of facts to this case:
132Based on the following testimony it was clear from Constable Huntington's evidence that he formed a reasonable suspicion at 3:06 or 3:07 am:
QUESTION: Okay. So on my math a delay from when you would have formed your reasonable suspicion at 3:06 or 3:07 to the time that the officers are on-scene at 3:17 is, unless my math is wrong, 10 or 11 minutes, you agree with that?
ANSWER: Agree.
QUESTION: Okay. And throughout that entire time period we've now established you don't make an approved screening device demand?
ANSWER: I do not make a demand.
133Based on his training, Constable Huntington was aware that he must make a demand when he formed his reasonable suspicion forthwith or immediately. He acknowledged that that he has both the experience and training to deal with a situation when the ASD must be brought to him. Constable Huntington recognised that he overlooked not providing Ms. Kaur her right to counsel while he waited approximately 11 or 12 minutes for Constable Breitenbach to bring the ASD. He called it a "lapse in judgment." (page 26 line 12)
134The circumstances were further compounded upon Constable Breitenbach's arrival at 3:17 am. Constable Breitenbach did not read the breath demand until 3:26 am. He formed his suspicion at 3:20 am according to the following evidence:
QUESTION: And do recall what time you formed your suspicion?
ANSWER: I can give you a rough time of 3:20.
QUESTION: And did you do anything as a result of your suspicion?
ANSWER: Yes.
QUESTION: And what was that?
ANSWER: I read Ms. Kaur, Ms. Kaur the ASD demand at 3:26. (page 62, lines 1-13)
135Unfortunately, after the police formed a reasonable suspicion, the breath demand was not read to Ms. Kaur for approximately 19 or 20 minutes.
136There was no explanation offered for the further 6 or 7 minute delay.
137The Crown argues that the delay was reasonable. According to Constable Breitenbach's evidence Ms. Kaur was “very argumentative; it was pretty difficult to get through the stages of the testing and explain the process that we were going through." (page 62)
138I have two concerns with the Crown's argument. First, if I accept that Ms. Kaur's demeanour may have accounted for a moderate delay after Constable Breitenbach's arrival, it did not explain why the Constable failed to read the demand at 3:20 am. Moreover, that was not the testimony regarding the reason for the delay. According to Constable Breitenbach, Ms. Kaur only became confrontational when he eventually read the breath demand and the rights to counsel at 3:26 am. Constable Breitenbach testified to the following:
QUESTION: And did you do anything as a result of your
suspicion?
ANSWER: Yes.
QUESTION: And what was that?
ANSWER: I read Ms. Kaur the ASD demand at 3:26.
QUESTION: And what was the accused's response to that
demand, if any.
ANSWER: Again, I just have my notes that she was
argumentative, and from my own memory, I can just remember she was loud, asking a lot of questions, and it seemed as though she was trying to delay the process.
139Second, Constable Breitenbach cannot speak to Ms. Kaur's conduct before he arrived. There was no evidence to support that Ms. Kaur was argumentative before his arrival. Similarly, this was not Constable Huntington's justification or explanation for failing to read the breath demand to Ms. Kaur.
140There were no officer safety concerns articulated aside from moving to the side of the road to continue the investigation, that should have delayed the demand.
141This was not an accident investigation that justified a pre-demand delay under the powers of section 48 of the Highway Traffic Act. see: R. v. Guenter, 2016 ONCA 572, R v Fildan [2009] OJ No 3604 para. 41 and R v. Shen, [2020] O.J. No. 1868.
142Section 48 of the HTA has been interpreted by the Ontario Court of Appeal as implicitly authorizing a police officer "to require a driver who he suspects is impaired to undertake coordination tests prior to being advised of the constitutional right to retain counsel without delay". See: R. v. Saunders, 1988 CanLII 197, 41 C.C.C. (3d) 532 at p. 545 C.C.C. (Ont. C.A.); see also R. v. Milne, 1996 CanLII 508 (Ont. C.A.). As well, this implied power supports the conclusion that s. 48(1) remains available even after a driver has already brought his or her vehicle to a stop. See: R. v. Lam, 1999 CarswellOnt 4277 (CJ) at paras. 28-29.
143However, the facts here were very different. There was nothing in these circumstances that warranted the police delaying the breath demand while they investigated a car that jumped the curb. Constable Huntington testified that when he was called for service, he was advised that the driver was possibly impaired. (page 14, lines 6-9) At approximately, 3:06 am, Constable Huntington was no longer sorting out a highway traffic matter but had reasonable grounds to suspect Ms. Kaur had alcohol in her body. His HTA powers had ended and he was obligated to fulfill his duties under section 320.27((1) of the Code. Therefore, I am not satisfied that Ms. Kaur was lawfully detained by the police pursuant to their powers under s. 48(1) of the HTA, such that her detention triggered an implied suspension of her right to be informed of her s. 10(b) Charter right to counsel.
144Applying the law to the facts of this case, in my view there can be no doubt that the ASD demand was not made forthwith. It was the case that Constable Breitenbach formed his own grounds and made the demand 6 or 7 minutes after he formed his suspicion but, in my view, that is not the appropriate way to view this case or the requirements of the statutory scheme under s. 320.27(1). As indicated by the Court of Appeal in Quansah, at para. 45, the forthwith analysis must always be done "contextually" and bearing in mind "Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual rights." The context and circumstances here were as follows: Constable Huntington formed his suspicion under s. 320.27(1) at 3:06 or 3:07 am and detained Ms. Kaur on that basis for the purpose of having her provide a sample into an ASD, but made no demand was made. There was no reason at all to delay 19-20 minutes in making the ASD demand after the suspicion was first formed by Officer Huntington. There were no unusual circumstances which would justify the delay. If Constable Huntington was going to detain Ms. Kaur on the basis of his suspicion under section 320.27(1) and for the purpose of making an ASD demand, he should have made the ASD demand at 3:06 or 3:07 am even though he did not have the device with him. Constable Huntington's failure to make a forthwith demand could not be cured by having Constable Breitenbach show up and form his own suspicion and make his own demand and then try to argue that the demand was made forthwith by the officer who ultimately made the demand and that therefore s. 320.27(1)(a) was complied with in some overall way.
145In my view, Officer Huntington was obligated to make the ASD demand immediately if Ms. Kaur was going to be detained on that basis. Indeed, as I have already stated, Constable Huntington acknowledged that he knew he was obliged to make the ASD demand as soon as he formed the suspicion at 3:06-3:07 am and he really had no legitimate reason for having failed to do so, aside from his unacceptable explanation that it was a lapse in judgment.
146In this case, the demand having not been made immediately, the police were operating outside the parameters of s. 320.27 and there was no suspension of the Ms. Kaur's Charter rights. Ms. Kaur was clearly detained from the time that she was asked to exit her vehicle. By detaining Ms. Kaur by the side of the road for 11-13 minutes without making an ASD demand and without telling her why she was being detained and without giving her rights to counsel, there was a violation of ss. 9, 10(a) and 10(b) of the Charter. See: R. v. George, 2004 CanLII 6210 (ON CA), [2004] O.J. No. 3287, at paras. 50-51
147The subsequent ASD demand that was made at 2:26 am was not made forthwith and therefore, there was a s. 8 Charter violation. In fact, there may have been no obligation to comply with it. In my view, if Ms. Kaur had refused to provide a sample of her breath in response to this demand, she would not be guilty of any crime: see R. v. Grant, 1991 CanLII 38 (SCC), [1991] 3 S.C.R. 139, at paras. 19 and 21 and R. v. Nithiyananthaselvan, [2016] O.J. No. 3752, at paras. 46 and 47.
Issue #2: Did the officer form the requisite belief that Ms. Kaur committed a criminal offence?
148Constable Breitenbach gave the following testimony as to what his belief was after Ms. Kaur failed the ASD starting at page 66, line 30;
QUESTION: And did you form any belief as a result of the ASD?
ANSWER: That Ms. Kaur had been consuming alcohol.
THE COURT: Sorry, what was that?
And he says it again:
ANSWER: That Ms. Kaur had been consuming alcohol.
QUESTION: And what time did you form your belief?
ANSWER: It would have been at 3:29 when the machine registered a fail.
QUESTION: And what did you do as a result of this belief?
ANSWER: Ms. Kaur was placed under arrest in the rear of the cruiser and eventually driven back to 21 Division after she was read her additional breath sample demand.
149Counsel argued that based on this belief Constable Huntington did not have reasonable and probable grounds to arrest Ms. Kaur and make a breath demand. The Crown submitted that the "sprinkled in" argument has no merit as Constable Breitenbach's grounds for an arrest did not need to be described in any particular way or in words that track the exact wording of a section of the Criminal Code.
150With respect to the reasons for an arrest and a subsequent breath demand, in my view, it is not necessary for a police officer to parrot the precise words of the subsection. Moreover, the presence of the requisite belief, and reasonable grounds for that belief, may be inferred from circumstantial evidence. See: R. v. Clarke (2000), 1 M.V.R. (4th) 298 (Ont.S.C.J.); R. v. Milanovski (2003), 41 M.V.R. (4th) 82 (Ont.S.C.J.); R. v. Subramaniam (2004), 50 M.V.R. (4th) 161 (Ont.S.C.J.)
151The preconditions of s.320.27(1)(a) must be found in the evidence before the court, whether direct or circumstantial. But if they are present, the demands under section 320.27(1) will have been satisfied.
152While Constable Breitenbach never used the words that after the failed ASD, "reasonable suspicion" or "reasonable grounds to suspect" that Ms. Kaur had alcohol in her body, he located Ms. Kaur in the driver's seat and frustrated that the engine would not turn on. He could smell the odour of alcohol on her breath. Her eyes were very watery and glossy eyes. Her speech was slightly slurred. In other words, there was clearly evidence that indicated that Constable Breitenbach had a subjective belief that Ms. Kaur had alcohol in her body.
153The testimony of Constable Breitenbach, taken as a whole, included evidence that indicated not only that Constable Breitenbach had a suspicion that Ms. Kaur had consumed alcohol, but numerous observations were objectively and reasonably capable of giving rise to that suspicion. Moreover, the Constable's testimony expressly linked his suspicion to such observations, justifying a reasonable interpretation and/or inference that the Constable addressed his mind to the requirements of section 320.27(1). See R. v. Shortall, [2002] O.J. No. 1447 (O.C.J.), at para. 17, and R v Buehlmann, 2018 ONSC 1665, at para. 27.
154It was not necessary during his testimony for Constable Breitenbach to employ "magic words" when he described his reasonable suspicion.
155In the result, there was no merit for finding a breach of Ms. Kaur's section 8 Charter right based on a warrantless search due to Constable Breitenbach expressing his belief of the meaning of the failed roadside test.
Issue #3: Did the police fail to advise Ms. Kaur the scope of her rights under section 10(b) of the Charter and fail to provide Ms. Kaur sufficient information to properly facilitate access to counsel?
156Cst. Breitenbach testified that after he read Ms. Kaur her rights to counsel from his notebook, Ms. Kaur's response to whether she wanted to speak to a lawyer was "I can find one." A call was eventually placed to duty counsel at 3:52 a.m. At 4:06 am duty counsel called back, and Ms. Kaur was put on the call. Constable Breitenbach could not recall if Ms. Kaur expressed dissatisfaction with her call to duty counsel. But if she did express that, his standard practice would have been to make a note of it.
157Cst. Breitenbach said he did not remember if Ms. Kaur requested to speak to duty counsel or any follow-up conversations because he had nothing in his notes. He explicitly disagreed with counsel that he unilaterally made the decision to call duty counsel; he could not say anything more because he did not remember nor had notes about that. Seemingly based on his practice, he told the court, it was unlikely he decided for her.
158Ms. Kaur testified that it was not her decision to speak to duty counsel. She never expressed her dissatisfaction to the police regards to her call with duty counsel. She said that the police made that decision for her and that the she was just going along as she believed that this was "a procedure to be followed," and that she had never been in police custody before. Ms. Kaur did not recall if she was asked if she wanted to speak to duty counsel. However, she did have the name and number of a criminal lawyer in her phone.
159Counsel asserted that despite the onus to establish a breach of section 10(b) on Ms. Kaur, courts have recognized that the failure of police officers to take proper notes on important subject as the administration of the rights to counsel can standing alone amount to section 10(b) breach. See: R. v. Hegedus, 2015 ONCJ 34; R. v. Gladstone, [2016] ONCJ 249; R. v. Ellies, [2015] O.J. No. 4231.
160If, I find that the paucity of notes on this subject did not amount to a breach, counsel submitted that there was a breach of the informational component of section 10(b). Ms. Kaur never understood that she could have contacted counsel of choice rather than opting to speak to duty counsel.
161The Crown submitted that the dearth of details in Constable Breitenbach's notes does not discharge Ms. Kaur's burden. Furthermore, Ms. Kaur never asked to speak to counsel of choice, nor did she ask for assistance in locating the name and number of a lawyer. Her response "I can find one" the Crown argued was ambiguous and vague. The police are not mind readers. R. v. Ghotra, 2020 ONCA 373, at para. 41.
Application of the facts to this case:
162It was uncontroversial that after Ms. Kaur failed the ASD, Constable Breitenbach read to her the rights to counsel. When asked if she had a lawyer, Constable Breitenbach testified and recorded in his notebook that Ms. Kaur responded, "I can find one." However, for completeness and context the following was his testimony:
QUESTION: Did the accused request to speak to a
lawyer?
ANSWER: Yes.
QUESTION: Do you recall who she requested to speak to?
ANSWER: She said: I can find one. And I believe we
contacted duty counsel, at the division. At three....
163After Ms. Kaur indicated that she could find one, nothing further was discussed and no supplemental action was taken by the police aside from placing the call to duty counsel. He testified that once in the booking area of 21 Division, "the next thing that happened with respect to speaking to a lawyer is a call was placed to duty counsel." Constable Breitenbach did not make any notes nor have any recollection if it was Ms. Kaur who wanted to speak to duty counsel.
164I accept Ms. Kaur's evidence that she was nervous and unfamiliar with the process. However, I believe that she was not as naïve as she wished to be portrayed. She did seem to understand the advice provided to her by duty counsel, as evidenced by her statement to PC Bowles in the breath room that the lawyer "said not to say anything" when asked if she understood the caution. She had no reservations in speaking up and asked questions regarding her vehicle and asking for water.
165But that is not the test to determine if the police fulfilled their obligations to ensure that Ms. Kaur understood the full scope of right to counsel. The quality of the advice or the failure to protest is not the issue. How can a detainee protest something that they are not fully aware of?
166I disagree with the Crown that Ms. Kaur exercised her right to counsel and was attentive to the right as she parroted the advice provided by duty counsel to the breath technician. The point should not be overlooked that counsel of choice may have provided advice based on an understanding of the unacceptable delay at the pre-demand delay at the roadside.
167The question was very clear about whether Ms. Kaur had a lawyer to speak to. Her response required further investigation and follow up questions and her responses noted. Constable Breitenbach did not display a casual approach to the provision of the right to counsel but, in my view, complete indifference.
168While Ms. Kaur did not communicate her confusion about her understanding of the right to counsel that did not invalidate the inadequate police assistance. Constable Breitenbach was an experienced police officer, whose training should have alerted him that Ms. Kaur was confused with her "I can find one" response. In fact, on this occasion he was a training officer. Constable Breitenbach had an obligation to explain to Ms. Kaur that if she had a lawyer in mind, that arrangements could be made to find that number on her phone, a lawyers' directory, the internet or through a family member or a friend. Constable Breitenbach should have explained that the right to counsel has immediacy and the scope of the right includes speaking to counsel of choice before the breath testing rather than duty counsel. These facts were different than the facts in R. v Ruscica, 2019 ONSC 2442 where the court made findings that the detainee understood his rights to counsel and specifically said he did not have a specific lawyer and instead wanted to call duty counsel: at para. 9. There was no confusion on the part of the detainee, and the detainee made an informed decision. There was no ambiguity in the responses unlike here. This case is more in line with the decisions in R. v. Mannucci, [2020] O.J. No. 4379 at paras. 58-67 and R. v. McFadden, 2016 ONCJ 777, [2016] O.J. No. 6932 at paras. 111-112.
169I am concerned about the lack of notes regarding the arrangements on the administration of the right to counsel. But the lack of notes and the lack of independent recollection simply tells the court that the officer did not do what his training taught him and that is to make complete and accurate notes on important issues such as the right to counsel. Having said that, he did record the important response "I can find one." But his lack of follow up on that statement is the point that is important in this case more so than on who decided to call duty counsel. That is because Ms. Kaur was not fully informed regarding her right to call a lawyer of her choice as an option which is a critical component of the informational and implementation aspect of the right to counsel.
170The analysis in R. v. Jhite, [2021] O.J. No. 2178 instructive on this issue. Jhite was a drinking and driving case where the trial judge found no s. 10(b) violation which was reversed on appeal and the evidence of the breath samples were excluded under s.24(2) of the Charter. Mr. Jhite was provided complete and unambiguous information about his rights and invoked them without confusion by asking to speak with his brother (a paralegal) to obtain his lawyer's information. Ultimately, the police obtained a number for his chosen lawyer and left a message to have him return their call. In the interim, a call had also been placed to duty counsel. Mr. Jhite spoke with duty counsel and did not get a chance to speak with his chosen lawyer despite police efforts of leaving a message. On appeal, Stribopoulos J. held the trial judge erred in not finding a s. 10(b) violation because the police interfered with his right to counsel of choice, in part because Mr. Jhite did not forego his right to choose his lawyer and did not choose to speak with duty counsel. Mr. Jhite was acquitted.
171In R. v. Willier, 2010 SCC 37 the Court also indicated that there is a positive duty on the detainee to exercise his or her rights with diligence. As well there is a corresponding duty of police to afford those detained a reasonable opportunity to contact a lawyer of their choosing and imposes a positive duty to enable contact. As Stribopoulos J. noted, the Court of Appeal has rejected claims that police violate s. 10(b) where detainees after asserting their right to speak with a specific lawyer choose to instead speak with duty counsel, but have found s. 10(b) violations where the detainee asserts their right to counsel of choice, but then speaks with duty counsel because the police steer the detainee in that direction and effectively left the detainee with the erroneous impression that [they] had no other option: Jhite, at paras. 44-45. In other words, the police cannot interfere with the right by choosing duty counsel on the detainee's behalf.
172Based the evidence and the circumstances in this case, Ms. Kaur has demonstrated that her section 10(b) right to counsel of choice was infringed.
Issue #4: Did the police over hold Ms. Kaur and thereby arbitrarily detained her after the breath testing procedure had been completed?
173Ms. Kaur gave two breath samples into an approved instrument at 4:43 am and 5:07 am. At 5:09 a.m., Ms. Kaur was escorted out of the breath room. The decision to release individuals from the police station was made by the staff sergeant at the station. Staff Sergeant Miller was on duty when Ms. Kaur was in custody. He met with her at 5:17 a.m. He was advised of the results of her breath samples which were 176 and 174 milligrams of alcohol.
174Staff Sergeant Miller canvassed Ms. Kaur' health and well-being in the cells by asking her a series of health-related questions such as whether she had injuries, was on medication or enrolled in any addiction programs. Ms. Kaur was released from custody at 10:32 am on a Promise to Appear Notice.
175During the approximately 5.5 hours that Ms. Kaur was in the detention cell, she made repeated efforts to gain the attention of various police officers. She indicated that these efforts were geared at securing her release. She was desperate to inform her workplace that she would not be able to make in that day. Despite her persistence she managed to engage different officers on at least 12 occasions.
176Upon being released she was greeted by her friend and roommate, Baljinder Dhillon, and was advised that he had been attending the police station throughout the early morning hours in an effort secure her release (his affidavit indicates he attended the police station at approximately 4:15 am, 5:30 am, 7:00 am, 8:15 am, and thereafter approximately every 15-20 minutes until approximately 10:30 a.m. when she was released.) Despite his efforts, Staff Sergeant Miller gave evidence that he had not been made aware of Mr. Baljinder Dhillon's repeated attendance that morning.
The Law on Overholding:
177Section 498(1) of the Criminal Code is the law which governs the police powers of release when dealing with a person arrested without a warrant. This section mandates that a detainee in police custody shall be released as soon as practicable. The word "shall" highlights the mandatory nature of this provision. An officer may only continue to hold a detainee based on one of the exceptions outlined under s. 498(1.1):
498 (1) Subject to subsection (1.1), if a person has been arrested without warrant for an offence, other than one listed in section 469, and has not been taken before a justice or released from custody under any other provision of this Part, a peace officer shall, as soon as practicable, release the person, if
(a) the peace officer intends to compel the person's appearance by way of summons;
(b) the peace officer issues an appearance notice to the person; or
(c) the person gives an undertaking to the peace officer.
(1.1) The peace officer shall not release the person if the peace officer believes, on reasonable grounds,
(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) ensure the safety and security of any victim of or witness to the offence;
(Emphasis added)
178The courts have been tasked with considering s. 498 (1.1) in the context of holding individuals charged with drinking and driving related offences. In the 2010 summary conviction appeal of R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (S.C.J.), Durno J. considered this section of the Criminal Code in the context of an allegation of a breach of s. 9 of the Charter. In that case, the accused had been held in a cell for approximately 6.5 hours after providing his last breath sample. His Honour ultimately found that a decision to hold a detainee could not be based solely on a person's blood alcohol concentration ("BAC") level, but instead needed to be grounded in a consideration of the circumstances as a whole. In coming to this conclusion, Durno J., at para. 93, provided a list of non-exhaustive factors that needed to be determined. Absent a consideration extending beyond a person's breath readings, a s. 9 violation would likely follow:
The officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include: the accused's blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused's vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all of the factors, the officer determines that the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not be established.
(Emphasis added)
179Since Price, breaches of s. 9 have been found in multiple cases dealing with overholds. Indeed, to list only a few: R. v. Suyat-pavalaraj, [2017] O.J. No. 5108 (O.C.J.) approximately 4.5 hours; R. v. Sakhuja, 2020 ONCJ 484, approximately 2.5 hours; R. v. Rahman, [2016] O.J. No. 6326 (O.C.J.) approximately 7 hours; R. v. Kim, unreported decision of Erlick J., January 28, 2021 (O.C.J.) approximately 4 hours; R. v. Klimenko, [2018] O.J. No. 7122 (O.C.J.), approximately 8.5 hours; R. v. Lorenzo, [2016] O.J. No. 5517 (O.C.J.) approximately 6 hours; and R. v Singh, [2020] O.J. No. 494 (O.C.J.), approximately 8 hours.
180However, it is not sufficient to establish an overhold breach by simply pointing to the time of the release. See: R. v. Garrido-Hernandez, 2017 ONSC 2552, [2017] O.J. No. 1961, at para. 40. The issue is not when the police ought to have released a detainee, but rather did the police act reasonably in the decision to detain and not release "as soon as practicable."
181In an overholding case after a prime facie case has been established, the burden may shift to the Crown, but only after the accused has established a prima facie case. See: R. v. Iseler, 2004 CanLII 34583 (ON CA), [2004] O.J. No. 4332, at para. 25.
182The case of Kim which is somewhat analogous to the case here, found an overhold breach where the police testified that the detainee would have been releasable to a responsible adult, but nevertheless made insufficient efforts to ascertain whether this was a real possibility. The accused was held for four hours after the breath testing procedure had concluded. However, despite the staff sergeant's testimony that he would have released the accused to a responsible adult, he did not bother to relate this information to another sergeant who was dealing with the issue.
183At pp. 20-21, Justice Erlick stated the following:
Despite the fact that an officer at 23 Division was aware that Mr. Kim was willing to pick Ms. Kim up, this information was not conveyed to Staff Sergeant Swackhamer. The lack of communication between Staff Sergeant Swackhamer and another officer within the division for which he was responsible deprived Staff Sergeant Swackhamer of information which according to him, would have resulted in Ms. Kim's release. I find that the police assessment of Ms. Kim's suitability for release was inadequate. There was no meaningful consideration given to whether someone was able to pick her up until after 7 a.m., more than three hours after the investigation was complete and related documents had been served.
(Emphasis added)
The application of the facts to this case:
184The Crown took the position that Ms. Kaur's blood alcohol readings on their own, constitute a sufficient reason for continued detention so as to render the detention lawful and not arbitrary. The Crown cites the subsequent summary conviction appeal court decision in R. v. Kavanagh, 2017 ONSC 637. In that case, Heeney R.S.J. concluded, relying on R. v. Sapusak, [1998] O.J. 4148 (C.A.) that high blood alcohol concentration levels alone could constitute a sufficient basis for an accused's detention.
185The law was fairly summarized by Kurke J. in the summary conviction appeal decision in R. v. Larocque, 2018 ONSC 6475, at para. 45:
In the context of impaired driving cases, high blood alcohol concentrations alone can constitute a sufficient reason for continued detention, so as to render detention lawful and not arbitrary, so long as an assessment is made of the particular accused and other available options are considered: R. v. Sapusak, [1998] O.J. No. 4148 (C.A.); R. v. Kavanagh, [2017] O.J. No. 430 (Sup.Ct.), at paras. 36-43; R. v. Waisanen, 2015 ONSC 5823, at paras. 12, 23; Isler, at para. 18; R. v. Price, 2010 ONSC 1898, [2010] O.J. No 1587 (Sup.Ct.), at para. 93.
186The readings are an important factor but not the only factor for a Staff Sergeant to rely on. An individualized assessment must be taken of the circumstances of the detainee to ensure that they are not held any longer "than is necessary for their safety and the safety of the public". See: See R v Brar, [2020] O.J. No. 3439, at para. 44.
187When Staff Sergeant Miller met with Ms. Kaur at 5:17 am, he observed her to exhibit signs of impairment. He did not make any notes, nor did he have any independent recollection of those observations. Admittedly, he did not observe any signs of intoxication when the cell video was played in court. However, he cited the poor quality of the video and the lack of audio recording as reasons that no signs of Ms. Kaur's impairment were visible.
188I am mindful of the hundreds of detainees that any Staff Sergeant during his or her career have encountered. Not having an independent recollection of an individual is not surprising and for the lack of a better word, understandable, however, when a Staff Sergeant has significant release power, it is inexcusable and contrary to the Peel Police Directive not to have notes in order to adequately articulate the reasons for continued detention.
189Staff Sergeant Miller claimed that another consideration for a detainee's continued detention was an individual's inability to comprehend the release documents. It was clear from the evidence that Staff Sergeant Miller never canvassed that issue with Ms. Kaur to determine, that when she was released that she would appreciate and understand her legal obligation to attend court and for her fingerprints and photos to be taken.
190In my view, the singular and most important factor in Staff Sergeant Miller's mind as to when it was appropriate to release Ms. Kaur was her breath readings. He could not point to any meaningful signs of impairment but focused on a mental calculation of Ms. Kaur's blood alcohol depletion rate of 15 mg per hour. He pointed out that it was his "standard practice" of holding a detainee until their BAC was below 100 mgs. I also noted that it was Staff Sergeant Miller's "standard practice" of not releasing anyone over 100 mg unless someone was going to pick up that person.
191He raised a concern that if Ms. Kaur was released on her own or into someone else's care earlier, the officer would lose control over her. I agree that should be a valid concern. However, in this case, he did not ask any questions regarding if she had access to another vehicle.
192I have no reason to disbelieve Ms. Kaur's testimony that when she was asked at 8:00 am that if a friend could be called on her behalf, that she answered it was preferable to take an Uber as she did not want to wait any longer and wanted to be released "now." In fact, Staff Sergeant Miller's agreed that was a possibility.
193There was a breakdown in communication as well that further aggravated the situation. Although he did not canvass if there was a person that could pick her up prior to 8:00 am, Ms. Kaur indicated in the breath room to Constable Bowes and to Constable Breitenbach who was observing, that there was someone who could have picked her up. Neither officer conveyed that information to their Staff Sergeant.
194I am also disturbed that Staff Sergeant Miller was not advised about the 12 occasions Ms. Kaur attempted to convince various officers that she needed to be released and or call her work.
195I also found it unacceptable that Mr. Dhillon attended the division on multiple occasions that morning to pick up Ms. Kaur, and no one told Staff Sergeant Miller that Ms. Kaur had a ride home. I am not taking into consideration as admissible evidence what Mr. Dhillon was told by a front desk officer since it was inadmissible hearsay. However, I reject the Crown's submission that the affidavit should be given little weight since Mr. Dhillon was never subjected to cross-examination. The Crown decided not to question Mr. Dhillon. Since Staff Sergeant Miller was not made aware of any of this, in my view, reflected an utter failure on the part of the police to communicate crucial information which would have assisted in Ms. Kaur's release.
196In my view, since Staff Sergeant Miller never canvassed with any police officer or Ms. Kaur to determine if there was someone who could pick her up before 8:00 am, the driving force behind her continued detention for approximately 3 hours was her BAC.
197From 8:00 am until approximately 10:30 am, there was no reason for Ms. Kaur's continued detention except the Staff Sergeant's rudimentary calculation of Ms. Kaur's BAC which would have been between 80-100 mg of alcohol.
198The simple reality was that the police were required to turn their minds to all the circumstances that were present, and in appropriate cases, high blood-alcohol readings may be sufficient. However, the important thing was that there must be a thoughtful inquiry made by the police officer into the existing circumstances so that a careful assessment and consideration was made before further detention is decided to be necessary.
199There was nothing in the evidence before me that raised the possibility of Ms. Kaur driving with an elevated BAC beyond the same level of risk that any intoxicated individual detained or arrested for a drinking and driving offence poses. In the absence of some evidentiary foundation for the existence of such a risk, a police officer cannot simply choose to detain an individual because they "might" choose to drive again. As high as the readings were, they did not amount to a justification for Ms. Kaur's further detention based on a risk that she might choose to drive another vehicle.
200There was no exigent, legitimate, or justifiable reason for Ms. Kaur to have been detained as long as she was. Therefore, I find that her s. 9 Charter right not to be arbitrarily detained was breached.
Section 24(2) of the Charter:
201Section 24(2) of the Charter reads:
Where, in proceedings under subsection (1) a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
202Once a breach of a Charter-protected right has been established, the sole question in deciding if the evidence obtained as a result of the breach should be excluded from trial is whether, in the circumstances, the admission of the evidence would bring the administration of justice into disrepute.
203The burden of establishing that "the administration of justice would be brought into disrepute" by the admission of the evidence sought to be excluded rests with the accused. The onus of proof is on a balance of probabilities (See: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173).
Overhold and evidence obtained in the manner:
204If the over hold was the only breach, I may not exclude the breath readings; however, this was one of several breaches of Ms. Kaur's Charter rights. In approaching the exclusion of evidence as one of several remedies (there could be a reduction in the sentence or a stay of proceedings), I have decided that the evidence was obtained as result of a breach for the following reasons.
205In R. v. Pino, 2016 ONCA 389, the Court stated that there need not be such a causal link, and that a breach that occurred after the obtaining of the evidence can nonetheless result in the exclusion of the evidence, so long as the breach is part of the entire transaction.
206Pino stands for the proposition for taking a broad and liberal approach to the factors that are to be considered when determining whether evidence can be excluded as a result of a breach of an individual's Charter rights.
207I agree with the approach taken in Pino. If there is a Charter right without access to a remedy in the event of a breach of that right, then the right is somewhat hollow. Therefore, a consideration of the s. 24(2) availability as a remedy should be a broad and liberal one.
208The breath results were temporally and contextually connected to the breath tests and the section 9 breach. The breath tests were therefore "obtained in manner", as required by the Charter.
209The chain of events was as follows: Ms. Kaur was found in the driver's seat of her vehicle. She was suspected of driving with alcohol in her body. The officer made (eventually) a lawful demand for a sample of her breath. Ms. Kaur failed roadside screening. The officer made a demand pursuant to section 320.27(1) of the Code. Ms. Kaur was taken to 21 division and provided two suitable samples of her breath. She was charged with excess blood alcohol.
210There was a contextual connection between the breath test results and her continued unlawful detention. If Ms. Kaur passed both tests, she would not have been charged, and there would have been no reason for the police to detain her.
211The was also a strong temporal detention. Approximately, 7 ½ hours passed between Ms. Kaur's first contact with the police and her release from custody. She was approached just after 3:00 am and was released at 10:30 am.
212The three factors as set out in Grant are as follows:
the seriousness of the breach(es);
the impact of the breach(es) on the Charter-protected interests of the individual; and
society's interest on an adjudication of the case on its merits.
The Seriousness of the Charter Violation:
213This first inquiry raises the concern that the respect for the Charter may be undermined if by admitting the evidence the court appears to condone the deliberate or negligent acts or omissions that fall below the standard of conduct expected of police officers, particular regarding fundamental rights, such as this case. See: R. v. Gunarasan, [2020] O.J. No. 1215, para. 45.
214With respect to the forthwith or immediacy issue, this led to a cascade of breaches at the roadside. There is little doubt since 1988 that the ASD must be administered immediately with the expectation that the demand will be made forthwith, so as not to offend the right to counsel. That was not done in this case. Constable Huntington admitted that he "made a mistake" which was caused by a "lapse in judgment" when he did not read the ASD demand after he formed his suspicion and failed to read to Ms. Kaur her rights to counsel. This mistake was compounded by Constable Breitenbach’ s failure to read the demand for another 6 minutes. These "mistakes" were good faith errors according to the Crown. In my view, this was negligence and must be measured against the police training.
215Furthermore, the police, following George, should have given the right to counsel and offered an opportunity to contact counsel by cell phone. This has been the law since 2004 and has been followed in a number of other cases in this province: See: R. v. Murphy (2005), 16 M.V.R. (5th) 245 (Ont. S.C.), at paras. 9-10; R. v. Ruck, 2013 ONCJ 527, 53 M.V.R. (6th) 323, at paras. 27-28, 39; R. v. Parkes, 2007 ONCJ 43, at para. 39; R. v. Mulroy, [2006] O.J. No. 5176 (C.J.), at paras. 16-17; R. v. Styra, 2006 ONCJ 113, at paras. 1-2, 5; R. v. McKernan, 2005 ONCJ 509, at paras. 38-42; and R. v. Muscat, 2005 ONCJ 415, 28 M.V.R. (5th) 179, at paras. 66-70.
216The right to counsel should have been provided. In my view, there was ample time to do so and a reasonable opportunity for Ms. Kaur to call counsel on her phone from the roadside.
217The section 8 and 9 breaches were serious and added an element of gravity to the officers' conduct. The invasion of Ms. Kaur's privacy on the ASD and the formal breath testing were not insignificant but should not be given undue weight. The Court of Appeal in R v Jennings 2018 ONCA 260, at paras. 29-30 stated that the taking of breath samples are minimally intrusive on the privacy interests.
218But the section 9 breach was very serious. The duration of the breach commenced at the roadside and extended to Ms. Kaur's eventual release. She was handcuffed, searched, and held in a detention cell for 5 ½ hours. The arbitrary detention was neither fleeting nor momentary. The breach was not trivial, it was substantial.
219With respect to the breach of Ms. Kaur's right to counsel of choice. On the serious side of the ledger, the right to counsel of choice there has been a lot of paper and ink dedicated to explaining to police officers the scope of this right. In my view, there should be no uncertainty or ambiguity given the number of reported appellate decisions about channeling a detainee to duty counsel.
220In the end, Ms. Kaur did receive legal advice and mostly followed it. She did comment that "my lawyer told me not to answer any question." She did not express dissatisfaction with the advice she did receive. However, she did have the name and number of a senior member of the criminal bar that may have provided a more meaningful advantage to Ms. Kaur had she had the opportunity to speak to counsel of choice.
221It may be preferable to speak to counsel of choice to increase that comfort level. As well, speaking to counsel who will be able to defend the charge down the road, is more comforting than to speak to "an unfamiliar and somewhat disembodied voice on the phone, who is effectively anonymous". See: R. v. Gao, [2018] O.J. No. 2334.
222Police are trained to be alive to this issue. Constable Breitenbach was an experienced officer that should have known better. Good faith cannot be claimed on the basis of ignorance of the right.
223On balance, therefore, I find that the seriousness of the multiple breaches' favours exclusion.
The impact of the breach(es) on the Charter-protected interests of Ms. Kaur:
224While it is distinct from the first branch, the second branch has to be influenced by the circumstances and the situation described in the first branch. This was a case of multiple breaches: The delay in the arrival of the ASD, the delay of the demand, the failure to provide the right to counsel during that 19-20-minute delay, the channelling to duty counsel and the unreasonably long and arbitrary over hold.
225The consequences that accrued included the towing and impoundment of Mr. Dhillon's car. However, that is not included in my calculus. But the 20-minute delay and detention without the benefit of legal advice was unnecessary and avoidable, to the extent that Ms. Kaur had a reasonable opportunity to call counsel from the police cruiser while she waited for the ASD demand. Furthermore, the stress and anxiety of not being able to call her work and leave a message for her work, was preventable. Finally, the over holding of Ms. Kaur for 5 ½ was capricious and the failure to conduct an individualized assessment in accordance with the Peel Police Service Directive unacceptable.
226The impact was not fleeting nor technical, but much more intrusive and unnecessary.
227Had the police followed well established and proper procedure and thereby not committed multiple breaches the matter could have been handled more efficiently. I find that this is a case where there is a risk that admission of the evidence may signal to the public that Charter rights, as stated by the Supreme Court of Canada, however high-sounding, are of little actual avail to citizens. This factor favours exclusion of the impugned evidence.
Society's interest on an adjudication of the case on its merits:
228I must determine whether the truth-seeking function of the trial process would be better served by the inclusion or the exclusion of the evidence. I am mindful of the seriousness of the case, the reliability of the evidence and its importance to the Crown's case.
229The exclusion of the breath samples in an "over 80" case would prove to be fatal. This favours inclusion.
230Drinking and driving has potentially deadly and life altering consequences. The carnage that it creates is a scourge to our society. See: R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254. But I am also aware of the fact that the seriousness of the offence should not take on a disproportionate significance. See: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494.
The Balancing:
231In balancing the above mentioned factors, the public's interest in the prosecution of drinking and driving offences, the multiple and cumulative breaches of Ms. Kaur's Charter rights, the importance of these fundamental rights, I believe that in order to best serve the long-term repute of the administration of justice the breath test results should be excluded.
Conclusion:
232As a result, the breath results are excluded and the charge against the Applicant is dismissed.
Released Orally: December 22, 2021
Signed: Justice P. T. O’Marra