ONTARIO COURT OF JUSTICE

CITATION: R. v. Kaler, 2021 ONCJ 727

DATE: 2021 21 10

COURT FILE No.: Brampton 3111 998 19 30339

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JAI KALER

Before: Justice G.P. Renwick

Heard on: 19-20 October 2021

Reasons for Judgment released on: 21 October 2021

Counsel: I. Osowski............................................................................................. counsel for the Crown R. Patel.......................................................................... counsel for the defendant Jai Kaler

REASONS FOR JUDGMENT ON CHARTER APPLICATION AND TRIAL

RENWICK J.:

INTRODUCTION

[1] This was a very brief and focussed trial. The Defendant was charged with having an excess blood alcohol concentration (“BAC”) within two hours of operating a conveyance, contrary to s. 320.14(1)(b) of the Criminal Code. The trial included a Charter Application to exclude the evidence gathered subsequent to the Defendant’s arrest on the basis of alleged violations of ss. 8, 9, 10(a) and 10(b).

[2] A patrol sergeant of the Peel Regional Police encountered the Defendant in the care and control of his father’s Honda Civic in a remote parking lot adjacent to a park, at night. The sergeant investigated the vehicle given concerns for illicit drug use, alcohol consumption, and indecent acts, which are known to occur in that location. The Honda had three occupants. While investigating the Defendant for a possible drink-driving offence, the sergeant developed fears for his safety. This was used to justify a delay to inform the Defendant of the reason for his detention, the sergeant’s intention to require a roadside breath screening, and the provision of the rights to counsel.

[3] The issues for my determination of the Charter Application are whether the Defendant’s Charter rights were violated, and if so, should evidence be excluded from the Defendant’s trial. On the trial proper, the only issue is whether it is established beyond a reasonable doubt that the Defendant’s BAC exceeded the legal limit within two hours of operating a motor vehicle.

GENERAL LEGAL PRINCIPLES

[4] Subsection 320.27(1)(b) of the Criminal Code authorizes a peace officer to require a motorist to submit to a breath screening using an approved screening device (“ASD”), if within three hours of operating a conveyance the officer reasonably suspects that the motorist has alcohol in his body.

[5] This subsection requires the motorist to “immediately” provide such samples as are necessary for the ASD screening.

[6] Recently, Justice Monahan of this court held that the immediacy requirement did not change when the Criminal Code drink-driving provisions were amended.[^1] Although I am not bound by His Honour’s decision on this issue, it is persuasive and I completely adopt the reasoning employed therein.

[7] The immediacy requirement has long been held to apply to both the making of the demand for breath screening and the motorist’s obligation to comply.[^2]

[8] An immediacy analysis must be contextual. “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.”[^3]

[9] The law respecting the obligation of the police to inform individuals of the reason for their detention is equally well settled. Ordinarily, the start of an investigative detention engages an individual’s s. 10(a) Charter right to know the reason for the state’s interference with one’s autonomy and liberty interests.[^4]

[10] Generally, s. 10(b) rights are also engaged the moment a detention arises. As the subsection itself makes clear, everyone has the right to retain and instruct counsel “without delay.” The requirement to promptly inform detainees of their rights to counsel is only attenuated by “concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.”[^5]

[11] However, s. 10(b) rights, have been found to be suspended during drink-driving investigations given the important public purpose of these investigations, the minimal interference with liberty generally involved, and the brief nature of roadside sobriety investigations.[^6]

[12] In the next part, I will outline some of the evidence and provide an assessment of the testimony, with references to specific portions of the evidence. Although I will not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and the witness’ ability to recall and communicate.

EVIDENCE AND FINDINGS

[13] I do not propose to recapitulate all of the evidence received during this trial. Suffice it to note that I have used ample and many opportunities during the trial and subsequent to the completion of the submissions to review my notes, and to listen to parts of the digital recordings of the proceedings. I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, I came to no conclusions about any of the testimony I heard until all of the closing submissions were made, and my review of the evidence was complete.

[14] I heard from three police witnesses during the trial: Sergeant Gary Mackin (the original investigating officer), Constable Monika Corriveau[^7] (the officer who attended the scene with an ASD and made the breath screening demand and subsequently arrested the Defendant), and Constable Feasby (the qualified technician).

[15] Given the Defendant’s concessions and the focus of his challenge to the evidence led by the prosecution, save for one issue (his putative BAC within two hours of operating a motor vehicle), if the evidential breath sampling results are admissible, the result of the trial is practically a foregone conclusion. As such, I need not refer to the evidence of the qualified technician in any meaningful way.

[16] The Defendant effectively concedes that the qualified technician operated the approved instrument appropriately, the approved instrument was operating properly, and the approved instrument accurately measured the Defendant’s BAC 126 minutes after the Defendant was found in the driver’s seat of a motor vehicle.

The Evidence of Sergeant Gary Mackin

[17] During submissions on the Charter Application, counsel for the Defendant essentially conceded the truth of the investigating officer’s evidence: “Sergeant Mackin was an honest officer. [There are] no issues with how his evidence came out.” Rather, the Defendant challenges the sergeant’s approach and the tactical decision the sergeant made to delay the provision of the Defendant’s s. 10(a) and 10(b) rights, and to notify the Defendant that he would be required to submit to a breath screening for alcohol.

[18] I accept the Defendant’s concession. I too found that this witness was credible and reliable.

[19] I find that Sergeant Mackin held an honest belief that there were genuine officer safety concerns at play given the time of night, the poor lighting in the area, the remote location (some 300m from the road in an empty parking lot), the number of occupants in the Defendant’s vehicle, the fact that the sergeant was alone, the presence of a bat in vehicle, the open liquor in the vehicle, the possible intoxication of the driver and occupants of the vehicle, the reaction (or lack thereof) of the occupants when the sergeant first aimed his “takedown” lights into the vehicle, and the sergeant’s lack of familiarity with the vehicle’s occupants or knowledge of their character.

[20] The sergeant also believed that if he said or did anything that might indicate his intention to detain and investigate the driver, this might cause the driver to drive away. The risk of the Honda driving off would then implicate public safety if the sergeant’s suspicion that the driver was impaired by alcohol proved to be true.

[21] Sergeant Mackin’s fears that the driver could simply engage the motor of the car and drive off arose because of the position of the Honda in the parking lot. The sergeant could not box in the vehicle with his police vehicle or otherwise prevent the vehicle from leaving that area while he was alone.

[22] The sergeant made it clear during cross-examination that this investigation was unusual given the number of occupants, the remote location, the time of day and lighting in the area, and the fact that the Defendant could easily drive away. He testified that if he had stopped a sole occupant, driver, upon coming to his suspicion of alcohol in the driver’s body, he would have made an ASD demand, asked the driver to accompany him to his police cruiser, and provided the driver with his s. 10(b) rights and cautions to remain silent [while awaiting the arrival of an ASD].

[23] Sergeant Mackin testified why he believed that this approach “wasn’t an option.” If he removed the driver, the other two occupants (one of which, according to the Defendant, was “drunk”) could possibly decide to drive away, which would also pose a danger to the public. The sergeant further testified that he believed that the three had cooperated and provided him with their identification documents precisely because they did not know that this had become a criminal investigation and they may have believed that the sergeant would simply check their licenses and then “they’d be on their way.”

[24] I accept all of Sergeant Mackin’s testimony as credible and accurate for the following reasons:

i. The Defendant conceded that the sergeant was an honest witness;

ii. The Defendant conceded that the sergeant’s concerns were not unreasonable;

iii. There was no issue taken with the content of the sergeant’s testimony nor was any evidence led to contradict it;

iv. The sergeant testified consistently throughout his testimony;

v. The sergeant’s evidence was reasonable and made sense;

vi. The sergeant’s evidence was balanced – he never claimed that the occupants of the vehicle were anything but polite and cooperative;

vii. The sergeant admitted things that potentially hurt his position – he did not inquire how long it would take to receive an ASD;

viii. The sergeant was candid respecting the withholding of information from the Defendant and temporarily disguising the nature of his investigation;

ix. The sergeant knew that he ought to have made an ASD demand once his suspicion (of alcohol in the driver’s body) had crystallized;

x. The sergeant was candid that he never told the Defendant that he was being investigated for a criminal offence; and

xi. The sergeant admitted at the end of cross-examination that even though the circumstances made it obvious that he was investigating the three occupants for drinking alcohol in public, in hindsight he should have told the occupants why he was detaining all of them.

Section 10(a) of the Charter Was Violated

[25] The prosecutor denied that the Defendant’s s. 10(a) rights were breached when the sergeant failed to advise the Defendant why he was being detained. It was argued that the circumstances would have made it plain to the Defendant why he was being detained.

[26] While it is accurate to say that the Defendant would have been well aware that he was being investigated for having open liquor in his car (a reasonable conclusion given the sergeant’s request for identification of all of the vehicle’s occupants), neither the sergeant’s comments about the smell of alcohol in the vehicle, nor his request for everyone’s identification would have given the Defendant any indication that he was also being investigated for a criminal offence.

[27] I find that one of the main purposes of s. 10(a) is to alert an individual to the potential jeopardy they are facing in light of the power imbalance vis-à-vis their interactions with the state. Although it is not the case that Sergeant Mackin exploited the situation caused by his misdirection (the appearance that the Defendant was only being investigated for having an open container of alcohol in the car), the Defendant was still vulnerable to incriminating himself. At the very least, he ought to have been advised that he was suspected of having alcohol in his body.

[28] In submissions, the Defendant conceded that an ASD demand could fulfill the s. 10(a) requirement to notify a motorist of the reason for his detention, because the nature of the investigation and the potential jeopardy of the motorist would become apparent. Here, the ASD demand did not occur until approximately 15 minutes after the detention began.

[29] I have no difficulty finding a s. 10(a) Charter violation in the circumstances:

i. The sergeant admitted that he never told the Defendant why he was being detained; and

ii. I accept that until Constable Corriveau arrived with the ASD, Sergeant Mackin never told the Defendant that he believed that the Defendant had consumed alcohol and that he would be required to submit to breath screening.

Section 10(b) of the Charter Was Not Violated

[30] The Defendant argued that the sergeant was required to provide the informational and implementational components of the rights to counsel once he recognized that it may take some time for an ASD to arrive at the scene. The Defendant places emphasis on four features in the evidence: i. the sergeant made no attempts to learn how long the delay would be, thus, he would not be in a position to know whether the right to counsel could be facilitated before the arrival of the ASD; ii. the actual delay was approximately 15 minutes; iii. the Defendant had a cellular telephone; and iv. the Defendant would have had the privacy afforded by his vehicle with which to speak to a lawyer.

[31] Generally, as indicated in paragraph 11 above, the law does not require police to provide either the informational or the implementational components of s. 10(b) during breath screening investigations. This is generally the case because of the anticipated brief nature of roadside drink-driving investigations. However, where the circumstances are such that the police might reasonably anticipate that the motorist could consult counsel before the arrival of an ASD, the suspension of s. 10(b) cannot be justified.[^8]

[32] Respectfully, this argument is moot. In this case, Sergeant Mackin did not hold-off providing the Defendant with his s. 10(b) rights because he anticipated the arrival of the ASD before there was a realistic opportunity to consult counsel. The evidence is clear that Sergeant Mackin never considered giving the Defendant his s. 10(b) rights until another officer arrived at his location.

[33] Again, the sergeant’s concerns for his own safety and the potential of the Defendant to flee if he knew that he was under criminal investigation, drove the decision to keep the Defendant in the dark with respect to his s. 10(b) rights.

[34] I find that Sergeant Mackin purposefully delayed providing the Defendant with his s. 10(b) rights because the sergeant believed it would be unsafe to himself and possibly the public if he revealed that the Defendant was being detained for a criminal investigation.

[35] In R. v. Rover,[^9] our Court of Appeal considered the possible exceptions to the “without delay” requirement applicable to s. 10(b) rights:

26 The s. 10(b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety, or the preservation of evidence. For example, in R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying access to counsel until the warrant is executed: see e.g. R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at paras. 71-75.

27 These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel: see e.g. R. v. Patterson, 2006 BCCA 24, 206 C.C.C. (3d) 70, at para. 41; R. v. Soto, 2010 ONSC 1734, at paras. 67-71; Learning, at para. 75; R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78.

28 Wu, at para. 78, provides a helpful summary of the law. That summary includes the following:

The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. The case law on this issue reveals some general guiding principles that provide a framework for this assessment:

a. The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety.

e. Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate. [Emphasis added by the Court of Appeal.]

[36] The Defendant did not dispute the veracity of the sergeant’s claim of officer safety. Rather, the Defendant argued that the claim was not justified because there were alternatives to withholding important information from the Defendant, the claim of officer safety was generalized, and the cooperation and behaviour of the Honda’s occupants established that the risks to officer safety were exaggerated.

[37] I reject the Defendant’s arguments for several reasons.

[38] As indicated, there is no issue that the sergeant had a genuine fear that his safety could be compromised if the Defendant and the vehicle’s other occupants took exception to his investigation. The sergeant was alone, outnumbered, at a visual deficit (it was dark), in a situation of unknown risk (were there weapons in the vehicle, would the occupants cooperate or try to harm the sergeant), and in a remote location. The occupants had been drinking alcohol, at least one occupant was reported to be intoxicated, they had access to at least one potential weapon (a baseball bat), they had access to a means of escape, the occupants reacted strangely when the sergeant put his vehicle’s lights directly into their car, and they had not provided a response to the sergeant’s initial inquiry about their purpose for being there.

[39] As well, it is inappropriate to assess the reasonableness of a claim of officer safety from the position of hindsight. At the time that the sergeant made a tactical decision not to provide information relating to the criminal investigation of the Defendant, the sergeant had only dealt with the Honda’s occupants for approximately 2-3 minutes. He did not know if any of the occupants were wanted by the police, whether they had outstanding charges, if there were other weapons in the vehicle, or if there would be resistance if he was transparent with his concerns about the driver’s sobriety. Although it is easy to say in hindsight that the sergeant’s fears were not borne out, many police officers are harmed during investigations like this one, even after the vehicle’s occupant(s) initially appear(s) to be compliant.

[40] Although they were made in a completely different context (the use of dynamic entry in executing a search warrant), our highest court has cautioned against ex post facto reasoning and questioning tactical decisions made by the police:

23 First, the decision by the police must be judged by what was or should reasonably have been known to them at the time, not in light of how things turned out to be. Just as the Crown cannot rely on after-the-fact justifications for the search, the decision about how to conduct it cannot be attacked on the basis of circumstances that were not reasonably known to the police at the time: R. v. DeWolfe, 2007 NSCA 79, 256 N.S.R. (2d) 221, at para. 46. Whether there existed reasonable grounds for concern about safety or destruction of evidence must not be viewed "through the 'lens of hindsight' ": Crampton v. Walton, 2005 ABCA 81, 40 Alta. L.R. (4th) 28, at para. 45.

24 Second, the police must be allowed a certain amount of latitude in the manner in which they decide to enter premises. They cannot be expected to measure in advance with nuanced precision the amount of force the situation will require: R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 73; Crampton, at para. 45. It is often said of security measures that, if something happens, the measures were inadequate but that if nothing happens, they were excessive. These sorts of after-the-fact assessments are unfair and inappropriate when applied to situations like this where the officers must exercise discretion and judgment in difficult and fluid circumstances. The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement, not to become a Monday morning quarterback.[^10]

[41] Based on what was known to Sergeant Mackin, what remained unknown about the vehicle’s occupants, and given the potential for harm both to the sergeant, and to the public if the vehicle drove off, I am satisfied that it was reasonable to hold-off providing the Defendant with s. 10(b) rights before Constable Corriveau arrived, some 12 or 13 minutes following the sergeant’s formation of a reasonable suspicion that the Defendant had been consuming alcohol while in the care and control of his vehicle.

[42] Once Constable Corriveau arrived, there was no realistic opportunity for the Defendant to consult with counsel before the breath screening could take place and the continued suspension of the Defendant’s s. 10(b) rights was entirely justified on that basis until the screening had been completed.

[43] Before moving on, one final point should be made. The Defendant suggested several alternatives to reduce the risks of harm to the sergeant or the potential for flight. Sergeant Mackin candidly accepted that there were other strategies he had not employed that night. Respectfully, without having been in the sergeant’s position that night, I feel less qualified to second-guess alternative strategies. This is the precise activity the court in Cornell advised against. The court is well placed to consider the reasonableness of the sergeant’s actual decision-making in the circumstances.

[44] Sergeant Mackin was thoughtful, conscientious, and aware of his obligations under the Charter. He made a reasoned decision to minimize risk until his safety concerns diminished. Respecting s. 10(b), I find that the sergeant’s conduct was appropriate, justified, and constitutionally compliant.

Sections 8 and 9 of the Charter Were Not Violated

[45] During submissions, it appeared to be common ground that the Defendant’s Charter rights were inter-related in this case.[^11] If, for example, s. 8 of the Charter were violated by a failure to comply with the statutory regime for breath screening, the continued detention of the Defendant would become arbitrary.

[46] The Defendant conceded in argument that if the court found that the police complied with the statutory regime governing breath screening, there would be no s. 8 violation. As well, if there were no s. 8 violation, the detention, which began lawfully, would not otherwise have become arbitrary or contrary to s. 9 of the Charter.

[47] In Quansah, our Court of Appeal provided guidance for a contextual consideration of the immediacy requirement to demand breath screening once an officer formed the requisite suspicion.

[48] Generally, the statute governing breath screening requires a prompt demand and an immediate response. The timing of the demand (after the formation of the reasonable suspicion) and the response to the demand “must be no more than is reasonably necessary to enable the officer to discharge his or her duty…”[^12]

[49] However, the analysis must consider:

…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.[^13]

[50] Sergeant Mackin did not have an ASD with him. This is not contested. It is not suggested by the Defendant that it is unusual or automatically problematic that not all police officers have access to an ASD at all times.

[51] It is apparent on the evidence that very soon after the sergeant formed the requisite suspicion, he attended his police vehicle and sent a radio call for an officer with an ASD to attend his location.

[52] I find that there was a delay of 1-2 minutes from the sergeant’s formation of a reasonable suspicion of alcohol in the Defendant’s body until he went to his police car and called for an ASD to be brought to him. In the circumstances facing him, the sergeant was completely justified in seeking the presence of another officer before making the ASD demand. I also find that even if the sergeant had made the ASD demand of the Defendant upon the formation of a reasonable suspicion of alcohol in the latter’s body, there would have been a justifiable delay until the ASD arrived.

[53] The sergeant formed a reasonable suspicion within 1-2 minutes of approaching the Defendant’s vehicle. He spent another one to two minutes retrieving the identification documents of all of the vehicle’s occupants. At 9:01 pm, Sergeant Mackin made the radio call for an ASD. At 9:12 pm, Constable Corriveau arrived with one.

[54] I am satisfied that the delay from the formation of the reasonable suspicion until the ASD demand took place was approximately 15 minutes (8:58 or 8:59 pm until 9:13 pm). I am further satisfied that the safety concerns of Sergeant Mackin were well-founded and well explained. They were reasonable. It was reasonably necessary to delay the breath screening demand until another officer arrived. It was also reasonably necessary to delay the breath screening demand until an ASD was actually available.

[55] The Defendant also sought to rely on a perceived unexplained delay on the part of Constable Corriveau.

[56] This officer testified that she received the radio call for an ASD at 9:01 pm. Constable Corriveau testified that she was the closest officer to the sergeant with an ASD. That evidence was never contested or undermined and I accept it.

[57] Constable Corriveau testified that when she received the radio call requesting an ASD, she was in the middle of a traffic investigation of her own, an unquantified distance away. In cross-examination, Constable Corriveau testified that she “finished the traffic stop and drove straight to the location.” It was never clarified whether this meant that the officer completed what she was doing before departing for the sergeant’s location or she abruptly ended what she was doing in order to depart with an ASD for the sergeant. At the end of her cross-examination, Constable Corriveau testified that she felt the call for the ASD was “urgent” and time was “important,” “in order to get proper breath tests.”

[58] There was some issue made during submissions that Constable Corriveau’s actions before she “finished” her traffic stop and headed for the sergeant’s location delayed the breath screening. On the evidence, which was not challenged or contested, I am satisfied that Constable Corriveau understood the urgency to bring the ASD promptly and she responded with appropriate haste. I do not find that she caused there to be any additional delay in advancing the investigation of the Defendant.

[59] In the end, I am not satisfied that the delay of approximately 15 minutes before the ASD demand was made was unreasonable or inappropriate in any way. The police officers took appropriate measures at all times to mitigate risk, perform their duties, and comply with the requirements of s. 320.27(1)(b) of the Code.

[60] Consistent with the holding in Quansah, I do not find that there was a s. 8 Charter breach in making the breath screening demand 15 minutes after the requisite suspicion was formed, given the absence of an ASD and legitimate officer safety concerns.

[61] As no other basis was advanced to justify a finding of a s. 9 Charter violation, I am not satisfied that there was a breach of this constitutional right.

Section 24(2) Charter Analysis

[62] The evidence sought to be excluded from the Defendant’s trial includes the results of the Defendant’s evidential breath sampling analysis.

[63] Having concluded that there was a violation of s. 10(a) of the Charter, I will now turn to whether or not the admissibility of the breath sample results in the Defendant’s trial would bring the administration of justice into disrepute.

[64] The parties agree that the three-prong test from R. v. Grant[^14] governs the exclusion of evidence under s. 24(2) of the Charter.

[65] Section 24(2) recognizes that if evidence gained by constitutional infringements is regularly admitted in criminal trials this may weaken public confidence and bring the administration of justice into disrepute. This subsection seeks to mitigate the negative effects of inappropriate state conduct by requiring a qualitative analysis of the long-term effect tainted evidence has upon public confidence in the criminal justice system.

[66] To perform the balancing exercise required by s. 24(2) of the Charter, I must consider:

i. The seriousness of the Charter-infringing state conduct;

ii. The impact of the breach(es) on the Charter-protected interests of the Applicant; and

iii. Society’s interest in the adjudication of the case on its merits.

[67] The first two factors serve to mitigate the loss of civil liberties by requiring exclusion of evidence when the Charter-infringing conduct is serious and the impact upon Charter-protected interests is great. The third factor “pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.”[^15]

Seriousness of the Charter-Infringing State Conduct

[68] This case involves a violation of a Charter right at the front end of police interactions with the Defendant.

[69] The evidence established that Sergeant Mackin made a calculated, tactical decision to avoid fulfilling the Defendant’s s. 10(a) Charter right. Perhaps to his credit, the sergeant did not compound the failure by misrepresenting to the Honda’s occupants that he was only investigating a Liquor License Act violation.

[70] Nonetheless, it is obvious that the Charter violation was deliberate. And although the Defendant characterized the sergeant’s actions as “not in bad faith,” I cannot find that this equates to good faith. Good faith cannot possibly equate to failing to fulfil a positive obligation (informing the Defendant of the actual reason for his detention), while possibly misleading the Defendant into believing that his jeopardy was much less than it actually was, even if he had good reason.

[71] One other observation is appropriate. Despite the allegation to the contrary, the police did not violate the Defendant’s Charter rights in any other way. In fact, the Defendant conceded that the period after Constable Corriveau arrived, which addressed the sergeant’s perceived force deficit, until the Defendant’s release from police custody, was marked by police conduct that was beyond reproach.

[72] The violation in this case was of modest seriousness. Within 15 minutes, a breath screening demand was made. As conceded by the Defendant, the breath screening demand would immediately fulfil the s. 10(a) right.

[73] In these circumstances, I find that this factor pushes minimally toward the exclusion of the breath analysis results.

The Impact of the Breach Upon the Defendant’s Charter-Protected Interests

[74] In this case, the Charter violation was avoidable, but not without significant risk. I find that Sergeant Mackin mitigated the impact of the Charter violation by candidly indicating that he could smell alcohol in the Honda, by remaining at or in his police vehicle while awaiting for the ASD, and by refraining from gathering evidence from the Defendant or other occupants during the 15 minutes when the Defendant was most vulnerable.

[75] Though the Defendant may have been expecting a provincial offences ticket or a warning, rather than a demand for breath screening, the delay was not inordinate for a provincial offence detention, it was somewhat obvious that the Defendant was at the very least being investigated for having open alcohol in his vehicle, the Defendant submitted to the detention and did not ask any questions or seek to end the detention prematurely (and there is no evidence respecting a compromised psychological state), and the sergeant did not charge the Defendant for the Liquor License Act violation. These circumstances served to mitigate the impact of the s. 10(a) violation upon the Defendant.

[76] That said, the impact was not infinitesimal. The Defendant was detained for 15 minutes with little information, and no likely sense of the next steps, or his jeopardy, or his entitlements before he learned what was going to happen to him. Until he was given the breath screening demand, he would not have known whether he was being charged, what other investigative steps could follow, or whether he would be released from the scene.

[77] The prosecutor submitted that the impact of the s. 10(a) breach was reduced because the Defendant would have known his potential jeopardy in the same way that all drivers know that police routinely and aggressively investigate drink-driving matters. Respectfully, that misses the point. Police are obligated to inform detainees of the actual reason for their detention, in order to alert the individual to the fact of an investigation, to permit the individual to choose whether and to what extent they will participate in any investigative steps, and to assuage any concerns of arbitrary police treatment.

[78] The effect of not being able to know the reason for the detention would undoubtedly have impacted upon the Defendant’s sense of autonomy (the right to be left alone by the state) and liberty.

[79] Situating the impact of the Charter violation also involves a consideration of the effect of the breach. In this case, the Defendant was required to submit to breath screening for analysis. This process has repeatedly been found to be “minimally intrusive,” despite the attendant costs to the detainee’s liberty, security of the person, and psychological well-being.[^16] After the 15 minute delay, the Defendant would have been fully aware of the true nature of his jeopardy and the police investigation.

[80] I find in the Defendant’s circumstances, and in light of the actual explanation for the failure in this case, which I have found was reasonable and justified, this factor only slightly favours exclusion of the breath testing results.

Society’s Interest in the Adjudication of the Case on its Merits

[81] In McGuffie, the Ontario Court of Appeal court spoke about the tension between the three considerations:

The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case.

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.[^17]

[82] The breath testing results are reliable and necessary to prove the sole charge before the court. This militates in favour of admitting the breath analysis.

[83] The prosecutor submits that the breach in this case, if it is made out, was minor and technical. I agree. I have assessed this violation as slightly serious. While I accept that Sergeant Mackin did not plan to violate the Defendant’s constitutional right, he was certainly aware that this would be the result.[^18]

[84] There is no evidence that the failure in this case was the result of poor training, poor policy, or mala fides. I tend to the view that disapprobation of the sergeant’s strategy is commensurate with the loss suffered.

[85] In balancing all three Grant factors, I find that the long-term effect of admitting the breath readings in the circumstances of this case would not bring the administration of justice into disrepute.

[86] For these reasons, the Charter Application to exclude evidence is dismissed.

JUDGMENT ON THE TRIAL

[87] The parties agree that the evidential breath sampling began 6 minutes outside of the general two-hour statutory window. In this case, s. 320.31(4) is engaged:

For the purpose of paragraphs 320.14(1)(b) and (d), if the first of the samples of breath was taken, or the sample of blood was taken, more than two hours after the person ceased to operate the conveyance and the person’s blood alcohol concentration was equal to or exceeded 20 mg of alcohol in 100 mL of blood, the person’s blood alcohol concentration within those two hours is conclusively presumed to be the concentration established in accordance with subsection (1) or (2), as the case may be, plus an additional 5 mg of alcohol in 100 mL of blood for every interval of 30 minutes in excess of those two hours.

[88] The prosecutor submitted that the Defendant’s lowest BAC result was 120 mgs of alcohol in 100 mL of blood. Given that the BAC was well in excess of 20 mgs %, 5 mgs can be added to give the Defendant a presumptive BAC of 125 mgs of alcohol in 100 mL of his blood during the two-hour period after he ceased operation of the vehicle.

[89] The Defendant made no submissions respecting this calculation or the applicability of the presumption found within s. 320.31(4).

[90] In the end, I am satisfied beyond a reasonable doubt that all preconditions are met for presuming the Defendant’s BAC at the operative time was well in excess of the legal limit.

CONCLUSION

[91] The Charter Application was a partial success; however, I am not satisfied on a balance of probabilities that the evidential breath testing results ought to be excluded from the Defendant’s trial.

[92] I am satisfied that it is proven beyond a reasonable doubt that the Defendant had an impermissible BAC within two hours of operating a motor vehicle on 27 September 2019. Specifically, the Defendant’s blood alcohol concentration was 125 mgs of alcohol in 100 mL of his blood.

[93] Accordingly, I find Jai Kaler guilty as charged.

Released: 21 October 2021

Justice G. Paul Renwick

[^1]: R. v. Bali, 2021 ONCJ 128, [2021] O.J. No. 1127 (C.J.) at paras. 6-8 and 14.

[^2]: R. v. Pierman, 1994 CanLII 1139 (ON CA), [1994] O.J. No. 1821 (C.A.) at para. 5 and R. v. Woods, 2005 SCC 42, [2005] S.C.J. No. 42 at para. 44.

[^3]: R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779 (C.A.) at para. 45.

[^4]: R. v. Roberts, 2018 ONCA 411, [2018] O.J. No. 2279 (C.A.) at para. 63.

[^5]: R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33 at para. 2.

[^6]: R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] S.C.J. No. 31 at paras. 15-19.

[^7]: Constable Corriveau’s surname has changed since the date of the alleged offence – it was Burgess.

[^8]: R. v. Torsney, 2007 ONCA 67, [2007] O.J. No. 355 (C.A.) at paras. 8-13.

[^9]: 2018 ONCA 745, [2018] O.J. No. 4646 (C.A.).

[^10]: R. v. Cornell, 2010 SCC 31, [2010] S.C.J. No. 31 at paras. 23-24.

[^11]: At the end of defence submissions, I asked the Defendant whether it was being alleged that a s. 10(a) violation could also support a finding that s. 9 of the Charter was breached. That is to say, if I found a s. 10(a) violation, would that turn a lawful detention into an arbitrary one. The Defendant suggested that this would be the case but did not produce any jurisprudence to support this argument.

[^12]: Quansah, supra, at para. 47.

[^13]: Quansah, supra, at para. 48.

[^14]: R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32.

[^15]: R. v. McGuffie, 2016 ONCA 365 at para. 62.

[^16]: For a list of authorities, see R. v. Jennings, 2018 ONCA 260 at paras. 27-32.

[^17]: McGuffie, supra, at paras. 62-63.

[^18]: I have not considered that it could possibly be argued that the sergeant’s decision to withhold information from the Defendant was proven to be prudent: the fact that nothing untoward occurred, may well have resulted from his tactical decision to keep the Defendant at an informational deficit until Constable Corriveau arrived.