Court File and Parties
ONTARIO COURT OF JUSTICE DATE: 2022 11 05 COURT FILE No.: Brampton 3111 998 20 10594
BETWEEN:
HIS MAJESTY THE KING
— AND —
PIOTR PIERZCHALA
Before: Justice G.P. Renwick
Heard on: 13-15 December 2021 and 31 October 2022 Reasons for Judgment released on: 05 November 2022
Counsel: I. Osowski, for the Crown D.R. Lent, counsel for the Defendant Piotr Pierzchala
Introduction
1The Defendant was initially charged with three offences: impaired operation, having an excess blood alcohol concentration (“BAC”) within two hours of operating a conveyance, and failing to remain at the scene of an accident. During the first day of trial, the prosecutor invited the court to dismiss the count of failing to remain at an accident (s. 320.16 of the Criminal Code), given that there was no reasonable prospect of conviction for this offence.
2The Defendant brought a Charter application to exclude the results of breath tests performed by him using an approved instrument. The Defendant alleged that the police violated his s. 7, 8, 9, 10(a) and 10(b) Charter rights. The prosecutor sought to introduce statements made by the Defendant during the breath testing procedure. On agreement of the parties, these admissibility hearings ran along-side the trial evidence in “blended” voir dires.
3During the trial, the prosecution called four police witnesses (Jasneet Deol, Abdul Tahir, Taylor Halfyard, and Shoaibuddin Khan) and two civilians (Stefania Diaz and Beau Meloche) to testify. The Defendant called evidence on the Charter Application (the Defendant’s testimony and his mother’s) but he did not call any evidence on the trial itself.
Governing Legal Principles
4The onus during a criminal trial begins and ends with the prosecution to prove the guilt of the defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt by admissible evidence. The prosecution’s burden of proof never shifts during the trial. Proof beyond a reasonable doubt is a high threshold.
5A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities. See R. v. Starr, 2000 SCC 40 at para. 242. If after considering all of the admissible evidence I am sure that the Defendant committed the alleged offence I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.
6This case involves conflicting evidence and credibility assessments. In assessing witness credibility and reliability I have taken into account the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive. A trier of fact is entitled to accept some, none, or all of what a witness says while testifying.
7I have reminded myself to treat the evidence of all witnesses the same. Specifically, I am not to subject the Defendant’s testimony to greater scrutiny, or a police witness’ testimony to lesser scrutiny because of their respective roles in the proceedings. That would be unfair and it would completely undermine the presumption of innocence and the unending burden of the prosecution to prove the Defendant’s guilt beyond a reasonable doubt.
8A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are inconsequential or significant to the case. If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.
9In this case, because the prosecutor seeks to adduce evidence obtained from a warrantless search (the breath sampling procedure), I must be satisfied on a balance of probabilities that the search was authorized by law, the law is reasonable, and the search was conducted reasonably: R. v. Collins, [1987] S.C.J. No. 15 at para. 23.
10By way of a roadmap, it will be helpful to outline the Charter arguments raised and the responses to them, the evidence and my findings, an application of the law to the facts, and my conclusions on the Charter Application followed by a discussion of the evidence on the trial proper.
Positions of the Parties on the Charter Applications
11The Defendant alleged that several Charter violations occurred during the investigation, his apprehension and arrest, and the subsequent breath testing. Some arguments were made in writing while some were made during submissions. The Defendant’s Charter arguments were framed in the Form 1 APPLICATION he filed under GROUNDS TO BE ARGUED IN SUPPORT OF THE APPLICATION:
i. “…the police committed an unreasonable search, entry, and arrest of the Accused without warrant, eliciting statements and breath samples and other evidence from the Accused and thereby breaching the Accused’s right to remain silent contrary to Section 7 and 10 of the Charter of Rights and Freedoms;”
ii. “Statements were given by the Defendant to police at the scene pursuant to the legal obligations of the Highway Traffic Act. Using said statements as evidence at Trial would be a breach of Section 7 of the Charter;”
iii. “It is further submitted that the Investigating Officers completed an unreasonable stop, search, and detention of the Accused without warrant, eliciting statements, breath samples and other evidence from the Accused without reasonable and probable grounds and thereby attempted to make an unlawful search and seizure of the Accused contrary to Section 8, 9, & 10 of the Charter;”
iv. “It is respectfully submitted that the Arresting Officer and subsequent Investigating Officers failed to provide the Accused with proper reasons for his arrest and rights to counsel in accordance with the requirements of Section 10(a) and 10(b) of the Charter of Rights and Freedoms and failed to properly facilitate the giving of these rights and failed to allow for the proper exercising of these rights;”
v. “It is submitted that the Applicant’s right to retain and instruct counsel without delay and to be informed of that right, under s. 10(b) of the Canadian Charter of Rights and Freedoms had been infringed;” and
vi. “It is submitted that the Applicant’s corollary right to retain and instruct counsel of his choice [sic] been infringed.”
12In submissions, the Defendant did not address s. 7 of the Charter. This may be explained on the basis of the mid-trial voluntariness ruling. During the trial, the prosecutor sought to admit utterances of the Defendant made during the breath testing procedure.
13After arguments heard mid-trial, I ruled that the evidence and gaps in the evidence adduced on the voluntariness voir dire left me with a reasonable doubt that the Defendant’s statements to the Qualified Technician (Constable Halfyard) were voluntary. Accordingly, none of the Defendant’s utterances to police on the morning of his arrest forms any part of the evidence on this trial.
14Orally, the Defendant made overlapping, intertwined, and distinct arguments to support his remaining Applications under the Charter.
15The Defendant submitted that there were three distinct s. 9 Charter violations:
i. The police attended upon the Defendant’s porch to gather incriminating evidence against him (the “Evans” breach, referring to R. v. Evans);
ii. The police lacked objectively reasonable grounds to arrest the Defendant for failing to remain (the unlawful arrest breach); and
iii. The police subsequently lacked subjectively held, objectively reasonable grounds to believe that the Defendant had operated his motor vehicle while impaired by alcohol. Although it was imperfectly articulated, I surmise that due to the alleged unlawful arrest and continued detention of the Defendant, s. 8 of the Charter was also implicated by the subsequent unlawful search and seizure of the Defendant’s breath samples. The Defendant took issue with an improper breath demand given that the police lacked any reasonable grounds to arrest the Defendant for impaired driving.
16Section 10 of the Charter was also implicated in several respects:
i. If the police ever suspected that the Defendant was impaired by alcohol, they never articulated that to the Defendant during his detention and initial arrest (the s. 10(a) violation);
ii. The Defendant was re-arrested for impaired driving some 19 minutes after his initial arrest. Thus, his s. 10(b) rights to counsel, were equally delayed;
iii. The Defendant did not receive a reasonable opportunity to exercise his right to counsel of his choice and he was directed to Duty Counsel (the “Prosper” violation, referring to R. v. Prosper); and
iv. Duty Counsel was not initially advised of the Defendant’s entire jeopardy, which necessitated a second call to Duty Counsel. It was not expressly articulated but I also took this delay into account in considering whether s. 8 of the Charter had been violated because the police did not complete the evidential breath testing in a timely manner.
17In scant fashion, the prosecution’s written response to the Charter Application rejected any failings on the part of the police. Orally, the prosecution re-iterated its opposition to all of the Charter arguments.
18In submissions, it was obvious that the prosecutor had little to say respecting the lack of objectively reasonable grounds to arrest the Defendant for failing to stop at an accident, contrary to s. 320.16(1) of the Code. The gravamen of that offence is leaving the scene of an accident involving another person and/or vehicle. This offence clearly did not apply to the Defendant given that his vehicle had apparently left the road and crashed into an unoccupied construction. From the outset of the investigation, police never had any reason to believe that any other vehicles or individuals were involved.
19Primarily, it was argued that the police did not attend the Defendant’s home to arrest him or to seek incriminating evidence. Rather, the police were trying to learn what had caused the Defendant’s car to inexplicably leave the road and violently collide with construction barriers. The police were also understandably concerned about the health of the driver. Lastly, the formation of reasonable grounds is not time-dependent. Once the officers formed grounds for an impaired driving charge, they arrested the Defendant, provided the informational component of his s. 10(b) rights, and made a demand for his breath samples.
20Back at the police station, it is submitted that the police did all they could to facilitate contact with the Defendant’s counsel of choice. Once that option seemed futile, police offered, and the Defendant accepted, the option of speaking to Duty Counsel. Police corrected an oversight by providing a second opportunity for the Defendant to receive legal advice from Duty Counsel, which also evidenced their good faith efforts to assist the Defendant in exercising his s. 10(b) rights.
21In the end, if there were any Charter breaches, which was denied, they were of minimal significance and the breath results should be admitted in the trial.
22In the next part, I will outline some of the evidence taken during this trial and the findings I have reached. I do not propose to reiterate all of the evidence taken. It is sufficient to note that during and subsequent to the trial I have taken several opportunities to review the evidence from my notes and the digital recording of the proceedings. I came to no conclusions on the evidence until all of the submissions were received.
The Evidence and Findings
The Testimony of Constable Jasneet Deol
23Constable (“Cst.”) Deol testified about the collision scene, the poor condition of the Defendant’s Audi motor vehicle, and his role in the investigation. The evidence was not challenged in any way. Rather, the Defendant relies on this evidence to establish that his vehicle was completely inoperable.
24Given the limited context of this testimony, its acceptance by the Defendant, and no contradictory evidence, I accept the testimony of Cst. Deol as accurate in all respects.
25From this testimony I infer that it was an unusual pattern of driving that led the Defendant’s Audi to travel east off of Edenbrook Hill Drive, through a metal fence, down the boardwalk trail into the ravine, several car lengths away from the road, before knocking down a light pole and coming to rest facing the street from which it had come.
The Testimony of Stefania Diaz
26Ms. Diaz was the Defendant’s former girlfriend. She had been with the Defendant approximately two to five minutes before the Audi was demolished. In fact, the Defendant permitted her to drive the vehicle to her car, when they separated.
27This evidence helped to establish the events that gave rise to the belief of the police that the Defendant was the operator of the Audi when it crashed. Ms. Diaz testified that they had broken up several months before the morning in question. She and the Defendant had met up, attended a friend’s party in the area where the Defendant lives, and around 2:00 that morning, she asked the Defendant to take her back to her car. As indicated, after they confirmed that each was “okay” to drive, the Defendant permitted Ms. Diaz to drive his new Audi, to her car. They spoke for a few minutes and then she parted as he got into his vehicle to drive away. Minutes later, Ms. Diaz was told by the Defendant, “he had been in an accident.”
28Ms. Diaz was unable to estimate the amount of alcohol the Defendant had consumed at the party. She had seen him drinking from a beer bottle and a red cup at different points and consuming pizza and water. When the Defendant called to advise of the collision, he told her he had ‘messed’ up and he did not know where he was.
29In cross-examination, Ms. Diaz said that the Defendant was quite upset. They discussed the fact that she was seeing other people. He told her to get out of his car and he drove away quickly. She thought that the Defendant’s emotional state, rather than any impairment caused by alcohol was a factor in the collision.
30This evidence was factual and unadorned. It was balanced and credible. Ms. Diaz’ reliability was not challenged. Again, I accept this evidence as truthful, without hesitation.
The Testimony of Beau Meloche
31Mr. Meloche was a construction worker at the worksite on the early morning when he heard a big bang and came to find the badly damaged Audi vehicle in the middle of a restricted area. He saw the driver “crawl” out of the driver side of the car. The driver was pacing “frantically.” The driver, a male he could not identify, asked him not to call police. The driver took the license plates off of the car and ran away down the ravine pathway. The driver was described as a “tall, skinny, white male.” Mr. Meloche estimated that the Audi was 100’ from the roadway.
32In cross-examination it was confirmed that Mr. Meloche did not know how many occupants had been in the Audi before or after the crash. He had walked from a construction trailer, after hearing the collision, approximately 200m before he saw the male leaving the driver’s side.
33This evidence was not contradicted or challenged. It was believable and reliable. I accept this testimony as accurate in all respects.
The Testimony of Constable Abdul Tahir
34Constable Tahir told the court how he became involved in an investigation of an impaired driver at a construction site, where the person had taken off. People at the site were calling out, “Peter” while seeking the male. The officer was initially instructed to search for the driver before he was given an address where the “suspect or impaired driver may be.” The officer initially testified that he knocked on the door of the residence, he asked if anyone was driving an Audi, and the woman, who turned out to be the Defendant’s mother, indicated it was her son. At that point, the Defendant attended onto the front porch to speak with police.
35This interaction is captured from a porch camera above the front door of the Defendant’s home. The Defendant and two police officers are seen talking casually. The Defendant smokes a cigarette. Eventually, the Defendant is arrested and taken into the police car. The officers return and speak to the Defendant’s mother and two other women (the girlfriend of the Defendant’s brother and her friend) briefly before returning to the police car.
36Constable Tahir said that he asked the Defendant what had happened. The Defendant explained that he had had an argument with his girlfriend, he lost control of his vehicle, he drove into a construction site, he got scared and panicked, and that’s when he left the scene. The officer testified in chief that at this point he could smell a “strong odour of alcohol, coming from his breath…his eyes were red,” and at this point, Cst. Tahir formed grounds that he was “under the influence of alcohol” and the male was placed under arrest.
37This officer said that his “biggest concern” as he went to attend the address of the registered owner of the Audi was “if the driver was okay or not.” His goal was “to inquire and ensure the driver’s safety, to locate who was driving the vehicle.” Constable Tahir said that Cst. Khan, who had also arrived there at some point, arrested the Defendant, and he was only there for “officer safety.”
38In cross-examination, Cst. Tahir agreed that there was no information that the driver may be impaired when he first learned of the incident from his dispatcher. He also testified during cross-examination that although he was present when the Defendant was arrested he did not know for what offence Cst. Khan had arrested the Defendant. As well, he was looking for injuries on the Defendant and the smell of alcohol on his breath drew him to conclude that the Defendant was under the influence of alcohol.
39Interestingly, Cst. Tahir testified that at some point the Defendant had asked if he could smoke a cigarette and he permitted it. The officer could not say whether this was before or after the Defendant’s arrest by Cst. Khan. Constable Tahir testified that he has allowed people to smoke in the past before taking them to jail. Lastly, Cst. Tahir confirmed that the Defendant had no difficulty walking, nor did he show any signs of alcohol impairment.
40While it was certainly a probing cross-examination, it was by no means a challenging one. The answers were responsive, the witness was credible, and his reliability was not challenged. I accept this evidence as accurate in all respects.
The Testimony of Constable Taylor Halfyard
41Taylor Halfyard was the Qualified Technician that took the Defendant’s breath samples. His evidence and the breath sampling procedure video played a significant role in terms of duration and importance during this trial.
42Constable Halfyard testified about his efforts to assist the Defendant in contacting Jed Chinneck, a real estate lawyer that the Defendant wanted to speak with to exercise his s. 10(b) rights. Constable Halfyard first testified that Cst. Khan tried the phone number in the defendant’s phone without success. Then, Cst. Halfyard used “Google” to find the lawyer’s website to obtain the number 519-679-6777. He called that number at 3:49 am and left a message about the Defendant’s arrest and desire to speak to him. He also testified that he called 1-888-780-5881 at 3:51 am and left a message for Jed Chinneck to call back. At 3:54 am, Cst. Halfyard advised the Defendant that he had made those calls and “we give a reasonable period of time to call back.”
43Constable Halfyard testified that the Defendant “asked for a public lawyer at that time.” He asked Cst. Khan to facilitate that phone call.
44At 4:10 am, according to Cst. Halfyard, the Defendant finished his call with Duty Counsel. At 4:13 am, the Defendant finished using the washroom and Cst. Halfyard testified that he had Cst. Khan “make calls to his counsel of choice again,” using the cellular number (from the Defendant’s phone), and the two telephone numbers Halfyard had located. After he was satisfied that this had taken place and more messages had been left, he says he brought the Defendant into the breath room, which interaction was captured on videotape (exhibit 9 on the Charter Application and trial).
45In the breath room, when checking to see if the Defendant had understood his legal advice from Duty Counsel, Cst. Halfyard learned that the Defendant did not realise that he had been arrested for a fail to remain offence. According to the Defendant, that was not explained to him by the arresting officer. Constable Halfyard “assumed” that meant that the charge of fail to remain had not been explained to the Duty Counsel. Out of an abundance of caution, he told Cst. Khan to contact Duty Counsel a second time to advise counsel of both the impaired operation and fail to remain offence. The Defendant was taken out of the breath room at 4:30 am and returned after having spoken to Duty Counsel a second time at 4:46 am.
46At the end of his evidence in chief, Cst. Halfyard testified that he believed that the Defendant was “slightly impaired” in his ability to operate a motor vehicle, “not grossly impaired.” The Defendant’s outward appearance according to this officer was “bordering on normal symptoms.”
47The cross-examination of this witness played a significant role in this trial.
48In cross-examination, Cst. Halfyard testified that he was present when the Defendant arrived in the booking area and when he had made telephone calls to the two phone numbers he had found for the Defendant’s counsel of choice he was in the Defendant’s presence. Counsel for the Defendant never cross-examined the witness that the booking videos reveal that when the Defendant arrived in the booking area, this officer had not yet entered that area. I am satisfied that Cst. Halfyard was mistaken in this regard.
49Respecting whether the officer was in the Defendant’s presence when he made calls to reach the counsel of choice, I note that Cst. Halfyard simply agreed to the suggestion from counsel that when these calls were made, the Defendant “would’ve been present.”
50When seeing the booking area videotapes, the officer admitted that in the time period where he was apparently calling those phone numbers, he was not in the booking area with the Defendant. He was clearly wrong when he had testified that he was present with the Defendant at 3:49 and 3:51 am. Constable Halfyard explained that was simply mistaken when he said he was present with the Defendant while making those calls.
51The booking videos (exhibit 10) confirm that Cst/ Halfyard left the Defendant in the booking area at 3:47 am and returned at 3:53 am. He testified that at 3:54 am he explained to the Defendant that he had left messages for the Defendant’s lawyer to call back. The booking area video depicts Cst. Halfyard discussing something with the Defendant who is leaning on the wall at that time.
52I note that there was not a scintilla of evidence to suggest that the telephone numbers given in evidence (or apparently recorded in the officer’s notes) for Jed Chinneck were inaccurate or could not have come from that lawyer’s website.
53The only other area where this witness was challenged, was his testimony that he believed he had told the Defendant that he could call another lawyer or Duty Counsel, when he explained that he had left messages for the counsel of choice, but given the hour, counsel may not call back. This third option (the right to call another lawyer) was not recorded in Cst. Halfyard’s notes.
54The cross-examination continues and counsel points out that in the breath room video, the officer says that if the counsel of choice calls back, they would stop and permit the Defendant to speak to counsel, but at no point did the officer mention the right to consult another lawyer. Constable Halfyard testified that he “forgot” to provide that option on the breath room video, and even though there was no note of him having said this, he believed that he had told the Defendant this earlier. The officer explained that he has been “doing this for five and a half years” and while he should have noted this, it is something he is “aware of,” he “made a mistake” (in not noting it), and “I know to say this to him.”
55The breath sampling video confirmed much of this witness’ testimony.
56In the first part of exhibit 9, the Defendant spoke, presumably to another officer off-screen. Constables Halfyard and Khan discussed the latter’s difficulty calling the lawyer’s long distance number. Constable Halfyard explained how to call long distance and instructed Khan to bring the Defendant in, once that has been done. Constable Khan said that he had left a voicemail on all three [of the lawyer’s phone numbers], then corrected himself and said, “two of them.” Constable Halfyard then instructed him to call them again.
57The video also proves that Cst. Halfyard told the Defendant, “if your lawyer calls back you can talk to him” (4:28:40). At 4:31:20, Cst. Halfyard rebukes Cst. Khan, “You gotta tell the whole charges, bud,” to which Cst. Khan replies, “My bad.”
58The Defendant was relaxed, talkative, and polite with police during the breath testing procedure. The police were equally polite with the Defendant. At the end, as the Defendant leaves the breath room, Cst. Halfyard says, “Good luck to you.”
59Given the importance of this witness and the significance of his testimony, I have cautioned myself not to come to a conclusion on the veracity and value of this evidence until all of the submissions were received.
The Testimony of Constable Shoaibuddin Khan
60This officer was relatively new and inexperienced when he investigated this matter. Constable Khan testified that he was initially dispatched to the call about a collision and a driver who had fled, but then he was given an address and suspect name. The officer testified that he had attended the address of the involved vehicle’s registered owner “to gauge why he left...if he was impaired. The goal was to speak to the driver.”
61Constable Khan testified in chief that they asked the Defendant if he knew why they were there and he said that he did. He then had a cigarette, but the officer could smell an alcoholic beverage coming from his mouth. The Defendant’s eyes were bloodshot. He had information that the driver who had fled had told a witness not to call police. Respecting their initial conversation with the Defendant, the officer testified, “We were just building our grounds to see why he left the vehicle.”
62When asked why the Defendant was arrested, the witness said he did not recall exactly how the conversation went, but the failure to remain was the initial reason for the arrest. The fact that the Defendant had bloodshot eyes, a smell of alcohol, and admitted drinking “helped form the grounds for the impaired.”
63In terms of the timing and the reasons for the Defendant’s arrest, my notes of the officer’s testimony include:
-During the conversation, my notes say when I asked if he drank, he said, “four beers and one shot;” that helped form the grounds for the impaired;
-I read his rights to counsel and caution for the fail to remain; I placed him under arrest for the fail to remain; he came back to the cruiser; I did a pat-down search and he went into the back of the cruiser; I read the rights to counsel and caution at 3:00 am; and
-During our conversation, I get the update (a witness said he was the driver) and the statement of alcohol consumption, so I re-RTC him at 3:19 am in the back of the cruiser.
64When the prosecutor asked Cst. Khan what he told the Defendant at 3:19 am, he said, “the jeopardy changed. I told him he was under arrest for impaired operation of a vehicle.”
65In cross-examination, Cst. Khan appeared to answer questions carefully. When he could not recall something that was suggested to have happened he answered, “I cannot confirm that.” This phrase was used many times by Cst. Khan.
66At parts of the cross-examination, Cst. Khan seemed to be doing his best to answer truthfully. It was pointed out that during the second time he gave the Defendant rights to counsel, after the question, “Do you wish to call a lawyer now,” he also asked the Defendant, “Do you have a specific lawyer you would like to contact.” He admitted that this question was not asked when he first gave the Defendant his rights to counsel after the initial arrest.
67In cross-examination it was suggested that “things changed” by 3:19 am. Defence Counsel suggested that he received further information, including that the Defendant had been placed behind the wheel by a witness. The officer agreed to both of these suggestions.
68The only other area of the lengthy cross-examination I feel compelled to mention is the area where Defence Counsel asked, “You told us yesterday, the reason you called Duty Counsel three minutes later at 3:50 am is because the accused had to speak to Duty Counsel before the breath tests could be completed.” The witness agreed. Further, Cst. Khan was asked, “You direct the client to walk down the hall to speak to the [Duty Counsel] lawyer in this private room,” and “He follows your direction to walk down to the room.” These questions were answered affirmatively.
69To be accurate, Cst. Khan was asked in chief why Duty Counsel was called. He answered, “As we were unable to get a hold of his personal lawyer, Jed, we cannot proceed with doing his tests with Cst. Halfyard, without Peter speaking to a lawyer.”
70While this statement is not legally correct, breath testing may proceed in the absence of someone exercising their right to counsel, it underscores the officer’s intention to have the Defendant speak with “a lawyer” before breath testing. It does little to support what counsel was suggesting, that the police subverted the Defendant’s choice to speak with his own lawyer by having directed the Defendant to speak with Duty Counsel.
71Overall, I was satisfied that Cst. Khan was truthful and reliable. He did not overstate his recollections, he was consistent, he recognized the limitations of his memory, he did not guess, and he appeared to have made genuine efforts to recall and testify accurately.
72Moreover, in terms of his efforts to leave messages or attempts made to reach the Defendant’s counsel of choice, they were consistent Cst. Halfyard’s testimony and the breath room video that captured where he was directed to make further attempts.
The Testimony of the Defendant
73The Defendant testified solely on the Charter Application.
74He is now 29 years old, he lives at the address where the police located him, with his parents. He is a junior aircraft maintenance engineer for Air Canada. The Defendant is tall, good looking, and instantly likeable.
75The Defendant testified that he heard the police ask about his whereabouts as the driver of his car and if they could come inside. He testified, “I stop them, and I head towards the door and tell them it is me they’re looking for.” He testified, they asked if he was the driver who had fled and he said he was. The Defendant testified as he was smoking a cigarette on the front porch the police said that they “sensed or smelled alcohol on my breath.” He then explained that he was arrested for failing to remain and placed into handcuffs.
76The Defendant testified that he was patted down and the police left his phone on him and put him into the cruiser. While in the back of the police car, the Defendant testified that he was given his rights to counsel. When asked what happened after that, he testified, “After that I believe he had gotten some information over dispatch. The radio was on in the police cruiser. I just remember him reading me my rights a second time.
77There was some confusion, but the Defendant confirmed he was arrested for the impaired operation and given his rights to counsel a second time in the back of the police cruiser, as Cst. Khan had testified.
78At the police station, the Defendant confirmed that Cst. Khan went through his cell phone to retrieve the phone number for his real estate lawyer, Jed Chinneck, someone he was comfortable dealing with. He testified that after Cst. Khan attempted the first call, he told the Defendant “there was no answer.” This confirmed Cst. Khan’s recollection of his first attempt as well.
[79] The testimony of the Defendant continued: There was no failure to gain access to my lawyer. They were unable to reach him, Jed Chinneck. At this point, I was directed to Duty Counsel, which I had no idea what that was. The officers phoned Duty Counsel and directed me into this room to speak to Duty Counsel.
80When asked, “Did you ask to speak to Duty Counsel,” the Defendant answered, “I did not.” When asked, “Why did you walk back and go back into this room,” he answered, “I was directed to by Officer Khan.” Further, when asked if he had still wanted to speak with Jed Chinneck, the Defendant testified, “Yes, I did, however, if I knew I was able to have another option to find another lawyer, I would’ve preferred that, however, I knew Jed Chinneck was not answering.”
81There were other questions and answers about what the Defendant would have done had he been told he could try to call someone to assist him to find a lawyer.
82In cross-examination, the Defendant was asked about the interactions on the front porch. When asked, “They were asking about the whereabouts of the driver, you volunteered that it was you,” he answered, “Right.” The Defendant testified that before his arrest, he "felt comfortable” enough to ask the police “if it was possible to smoke.”
83The prosecutor asked the Defendant about the rights to counsel at 3:00 am in the police cruiser. Initially the Defendant said that he may have asked a follow up to the questions he answered, “if it was possible to speak to a lawyer.” Then he admitted that he did not actually recall asking that question.
84The Defendant agreed that he was arrested a second time for “impaired operation,” and the first arrest was for “fail to remain.” When asked if he was confused about this he responded, “I may have been. Everything was so fast…ton of shock. I was in the back of a cruiser for the first time in my life. So much was going through my mind. I was just agreeing.”
85When it was suggested to the Defendant that it was “clear that you could call a lawyer” he agreed. He also agreed he was told that “twice.”
86The Defendant tried to explain how he felt at the police station, although he appeared comfortable on the booking video, “I was out of my element, but yes, I was trying to be as comfortable as possible.” He was unsure if the video had captured him laughing. He answered that when he was smiling, it was him “trying to be positive.” When the prosecutor pointed out that the interaction with the booking officer was positive, and they even fist-bumped as he left, the Defendant disagreed. He explained, “I have respect for officers. I didn’t want to be disrespectful to them. My cousin was an officer in Peel. I didn’t want to make their job any more difficult.”
87The most compelling part of the cross-examination was when the Defendant testified that he had a conversation with police about a “public lawyer,” but he asked the prosecutor if that meant the Duty Counsel. Further, if he had known that there was an option besides Duty Counsel, he would have exhausted that option. The only reason he spoke with Duty Counsel was that it “thought it was necessary.”
[88] The following exchange then took place: Q: Your evidence is that you thought it was necessary to speak to Duty Counsel? A: Yes. Q: Had you known, you wouldn’t have spoken to Duty Counsel? A: Yes. Q: But you were aware that you had the right to speak to a lawyer? A: Yes. Q: You were aware you had the right to speak to a lawyer other than Duty Counsel? A: Yes. I tried. That was the only option I had at that point. It was the only lawyer I know. I was aware, but we tried. Q: Tried and failed? A: Yes. Q: At no time did Khan say you could only speak to one lawyer? A: He did not say anything like that.
89In the end, while I accept the Defendant at his word that he thought he had no option but to reach his own lawyer or speak with Duty Counsel, I do not accept that he was directed to speak with Duty Counsel, that he thought it was “necessary,” or that there was any difficulty understanding his rights to counsel.
90The rights to counsel provided to the Defendant clearly indicated that he could speak with any lawyer. Moreover, these rights had been read to him twice. He was asked or he volunteered that he had a lawyer he wished to call. Every reasonable effort was made to call his counsel of choice. The Defendant admitted that he realised given the hour of morning, it was unlikely that his counsel of choice would call him back. This explains why he availed himself of the option to speak with Duty Counsel, not some pressure, lack of choice, or some deficiency with the informational component of the provision of s. 10(b) rights.
91The Defendant’s evidence did nothing to undermine the evidence of Cst. Halfyard respecting the efforts he made to advance the Defendant’s exercise of his s. 10(b) rights.
92Despite the officer’s mistaken belief that he had called the Defendant’s counsel of choice in the Defendant’s presence, I am satisfied that Constable Halfyard left messages on two phone numbers that he had located for the lawyer for the following reasons:
i. The telephone numbers and the evidence the officer gave respecting a website for Jed Chinneck were never challenged. I accept as fact that the numbers located and recorded by Cst. Halfyard were accurate;
ii. I am satisfied that Cst. Halfyard went above the requirements of s. 10(b) to ensure that any counsel of choice would be contacted. He was not the officer in charge, yet he involved himself, he took initiative in looking for the lawyer’s contact numbers, and he repeatedly directed Officer Khan to contact counsel of choice. Constable Khan’s evidence confirms that he made several attempts and left messages twice for counsel of choice;
iii. When Cst. Halfyard learned that Cst. Khan may not have accurately advised Duty Counsel of both charges, he instructed Cst. Khan to call Duty Counsel back and he gave the Defendant a second opportunity to speak to Duty Counsel. After both calls, Cst. Halfyard confirmed that the Defendant had spoken to a lawyer and he understood his legal advice;
iv. The officer quickly admitted when he learned that he was mistaken. Respecting where he was when he called the lawyer’s numbers, the timing of his departure and return to the booking area coincide with his evidence that he made those calls. The video evidence supported his testimony that he told the Defendant about the phone messages he had left at 3:54 am;
v. The officer testified that he even provided the direct number to the booking area. This level of detail satisfies me that the officer earnestly wanted to assist the Defendant by having his counsel of choice call him back;
vi. Constable Halfyard was not argumentative in cross-examination. Rather, when it was suggested that he did not hand the phone to the Defendant to leave voicemail messages he said “Honestly, I’ve never thought of that before. It’s not a bad idea;”
vii. Constable Halfyard did not guess to enhance his evidence. When it was fairly obvious on the silent booking video that the Defendant was providing Cst. Khan with the phone number of his counsel of choice from his cell phone and that officer was writing it down, Cst. Halfyard did not guess as to what Cst. Khan was doing; and
viii. Constable Halfyard was a balanced witness. He did not seek to paint the Defendant in a negative light, to exaggerate the outward signs of alcohol intoxication, or to diminish his mistakes and shortcomings in his note-taking.
93Though the Defendant’s mother testified, her evidence was almost completely irrelevant. She could have given the Defendant the phone number of one of her clients, who was a lawyer, if he had requested it, but he never did.
Analysis of the Charter Arguments
The Section 9 Allegations
94Obtaining reasonable grounds does not demand perfection or even perfect accuracy. Police officers embarking on an investigation are entitled to be wrong. As long as their grounds are objectively reasonable rather than based on vague suspicions, intuitions, hunches, or worse, improper motives, they need not be found to be correct.
95The standard of reasonable grounds is credibly-based probability. See Canada (Combines Investigation Acts, Director of Investigation and Research) v. Southam Inc.. Reasonable grounds to believe an offence has been committed must be articulable, subjectively held by the officer, and objectively reasonable. See R. v. Storrey at para. 17. The officer is entitled to rely on hearsay, unless she has a reason to doubt the truth of the information.
96Constable Khan testified that he believed the Defendant had failed to remain at the scene of an accident and arrested the Defendant for that offence. A careful reading of s. 320.16 makes it plain that the gravamen of the offence is a collision with another vehicle or another person. In that situation, the driver must stop, remain, and render information and assistance. On the facts of this case, there was no duty to remain.
97Thus, though Cst. Khan had a subjective belief that an offence had been committed, he was wrong in law. There were no objectively reasonable grounds to arrest the Defendant. His initial arrest was unlawful. When the Defendant was handcuffed, walked to the police cruiser, and patted down and placed in the rear, his s. 9 Charter right was violated.
98In respect of the alleged “Evans” breach, I am not satisfied that the police attended the Defendant’s home with the sole aim to gather evidence. I say this for several reasons:
i. Initially, the police had no way to know if the vehicle’s driver was the owner. The evidence is unclear when the police spoke with Stefania Diaz at the collision scene and when they would have known that the Defendant was both the owner and alleged driver of the Audi;
ii. Initially, the police had no way to know if the vehicle, missing its license plates, had been stolen;
iii. The police had a duty to investigate the collision and the extensive property damage to determine if someone was in need of medical assistance.
99I find that at least one of the aims when the police went to the Defendant’s home was to investigate the cause of the motor vehicle collision and determine who the driver was. This is a legitimate reason to knock on the door of the vehicle’s registered owner to communicate with the owner about the collision that was discovered. I am fortified in this view because I accept the police testimony that the first question that was asked was about the driver of the Audi.
100I also accept the testimony of the Defendant’s mother that the police first asked to speak to her son. Again, this makes sense. They knew he was the registered owner of the Audi. That would be a natural starting point to investigate who may have operated the vehicle, whether they needed assistance, and whether he was aware that his vehicle had been driven into a construction site.
101At the point that the Defendant was first arrested at 3:00 am, neither officer had a subjective belief that he was impaired in his ability to drive, although even on the Defendant’s evidence, it was obvious to police that he had been drinking alcohol. Had Cst. Khan been more experienced, he may have developed grounds to believe that the Defendant had alcohol in his body within two hours of operating a conveyance, which would have given him the right to make an approved screening device demand.
102I have found that the Defendant was unlawfully detained for 19 minutes while the investigation continued and Cst. Khan learned that a witness had put him behind the wheel of the Audi. Also, in this intervening period, the Defendant admitted to having consumed five drinks of alcohol. The officer testified that armed with this information, he now believed that the Defendant was impaired in his ability to operate the Audi and he arrested the Defendant for that offence.
103The Defendant’s evidence also supports Cst. Khan’s testimony in respect of the chronology and substance of the information conveyed to the officer.
104Accordingly, this third aspect of the s. 9 Charter Application also fails.
The Section 10 Allegations
105I do not accept that at the point the police first spoke with the Defendant there were any suspicions that he may have consumed alcohol. There would be no reason to advise the Defendant that he was also being investigated for possibly drinking and driving when the police and the Defendant first spoke on his porch. It was clear to the Defendant that the police were investigating the crash of his Audi. Before too long, it was clear to the police that the Defendant was the involved driver. Within two or three minutes of the police attendance at the residence, the Defendant was being arrested for failing to remain at an accident. There was no s. 10(a) violation at this point.
106Once Cst. Khan had witness information that confirmed that the Defendant was the driver, and he knew that the Defendant had consumed a significant amount of alcohol, it appears that there was no delay in the arrest of the Defendant and the provision of the informational component of his s. 10(b) rights.
107The evidence did not establish why the second arrest occurred at 3:19 am, rather than some earlier time. It is unknown how much time it took to handcuff the Defendant walk to the cruiser, submit to a pat-down search, get lodged in the back of the cruiser, go through the initial rights to counsel, discuss his alcohol consumption, and have the officer receive more information about the collision (that a witness could identify the Defendant as the driver).
108In the absence of more detailed evidence, I am not satisfied that there was any delay of the provision of s. 10(b) rights following the second arrest.
109The right to consult counsel of choice, like all rights, is subject to reasonable limitations. A detainee has to be reasonably diligent in pursuing their right. While waiting for counsel to call back, the police must hold off their investigation until the detainee has had a reasonable opportunity to exercise their right. See R. v. Willier, 2010 SCC 37 at paras. 33-35.
110Constable Khan testified that they arrived at 22 Division at 3:42 am. He told the court that he first called the lawyer’s number from the Defendant’s cell phone at 3:47 am. This is similar to the time that Cst. Halfyard had for his first attempt to reach the same lawyer on another phone number (3:49 am).
111The Defendant was candid with police that given the early hour, it was unlikely they would hear from his lawyer. I accept that the Defendant changed his mind and decided that Duty Counsel was better than having no legal advice prior to submitting to breath testing.
112In this case, the evidence established that three minutes after Cst. Khan first attempted to reach Jed Chinneck, he left a message for Duty Counsel.
113The Defendant’s final argument in favour of finding fault with the conduct of the police was that there was a failure to provide a Prosper warning once the Defendant had changed his mind, abandoned the desire to consult with his counsel of choice, and sought Duty Counsel.
114This submission rings hollow.
115The “Prosper warning” is meant to equip persons under arrest with information they should know before giving up their right to counsel. See R. v. Fountain, 2017 ONCA 596 at para. 27. It is not required in all cases. It is required when a detainee has asserted the right to counsel and then apparently changes his mind after reasonable efforts to contact counsel have been frustrated.
[116] I can do no better in responding to this argument than to quote our Supreme Court: The concerns animating the provision of a Prosper warning do not arise when a detainee is unsuccessful in contacting a specific lawyer and simply opts to speak with another. In no way did Mr. Willier attempt to relinquish his right to counsel and thus any opportunity to mitigate his legal disadvantage. He made no attempt to waive his s. 10(b) right. Instead, unsuccessful in contacting Mr. Royal, he exercised his right to counsel by opting to speak with Legal Aid. As such, the police were under no obligation to provide him with a Prosper warning, and its absence fails to establish a Charter breach. See R. v. Willier, 2010 SCC 37, supra, at para. 39.
117In my view, a Prosper warning is not required when a defendant changes his mind and decides to exercise his right to counsel in a different manner.
118I would also note that Cst. Halfyard made it clear to the Defendant that the police had a duty to hold-off and give him a reasonable period of time to exercise his right to counsel before proceeding with the breath test. Moreover, the evidence established that the first breath sample was not taken from the Defendant until 4:52 am. This was more than one hour after Cst. Halfyard had first attempted to call the two numbers he personally located for the Defendant’s counsel of choice.
119I find that 30 minutes would have been a reasonable amount of time for the police to hold off their investigation while they waited for the Defendant’s counsel to call, in the circumstances. Given that business hours had not yet begun for the day, it was unlikely that counsel was occupied with another client, or otherwise temporarily unavailable. It was appropriate after more than half an hour to assume that counsel would not be available until the start of the business day, hours later. It would not have been reasonable for the police to have waited more than they did for counsel to call back, given the time of day, the several and successive efforts that they made to reach the lawyer, and the fact that the Defendant had spoken to Duty Counsel.
120I have also reached this conclusion in light of the type of investigation involved. The police were required to take samples of the Defendant’s breath “as soon as practicable.” Though the exigencies of an investigation can never override the reasonable opportunity that must be given to a detainee to exercise their s. 10(b) right, I am entitled to consider the entire context of the investigation in coming to a conclusion about the reasonableness of the opportunity given to the Defendant to exercise his right to counsel. See R. v. Wijesuriya, [2020] O.J. No. 855 (S.C.) at para. 89.
121The evidence that Cst. Khan mistakenly forgot to advise Duty Counsel that the Defendant had also been arrested for failing to remain at an accident was most unfortunate. I accept that this was truly an inadvertent mistake. However, this failure was significant in that it delayed the Defendant’s ability to fully exercise his s. 10(b) right. The irony that this provided more time to await a call back from the Defendant’s counsel of choice is not lost on me.
122Given that the prosecution relies upon the Defendant’s decision to opt for Duty Counsel once he realised that his own lawyer was unavailable, the police were bound to assist in the provision of Duty Counsel without delay.
123This Charter violation (the delay of the implementational component of s. 10(b)) affected the timing of the completion of the breath testing. Consequently, s. 8 of the Charter was also violated by Cst. Khan’s inadvertence.
Section 24(2) of the Charter
124The results of the Defendant’s breath tests were the only evidence sought to be excluded by the Defendant.
125Having found that there were separate s. 8, s. 9, and s. 10(b) Charter violations, 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.
126The parties agree that the three-prong test from R. v. Grant, 2009 SCC 32 governs the exclusion of evidence under s. 24(2) of the Charter.
127Section 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.
128To 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.
129The 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.” See R. v. McGuffie, 2016 ONCA 365 at para. 62.
Seriousness of the Charter-Infringing State Conduct
130This case involves a violation of three distinct Charter rights that bookend the police interactions with the Defendant.
131The evidence established that the police failed in a fundamental way by arresting the Defendant for an offence that had not been committed.
132Though I do not conclude that the violation of the right was deliberate, Cst. Khan’s mistake was ill-informed, it was exacerbated by Cst. Tahir’s acquiescence, and insofar as the unprovable charge proceeded, the failure went unrecognized until mid-trial.
133In respect of the delay in giving Duty Counsel the proper information about the Defendant’s charges to ensure the provision of appropriate legal advice, this error was compounded when it delayed the taking of the Defendant’s breath samples. This error also demonstrated poor judgment or carelessness on the part of the police rather than intentional conduct that was constitutionally deficient.
134The violations in this case are of more than modest seriousness. The failure to know when an offence arises on the evidence learned during an investigation is of fundamental significance. Carelessness in providing information to Duty Counsel is less serious, but not insignificant. The delays caused had a cascading effect in terms of the conclusion of the investigation of the Defendant and his ultimate release from custody.
135In these circumstances, I find that this factor pushes strongly toward the exclusion of the breath analysis results.
The Impact of the Breaches Upon the Defendant’s Charter-Protected Interests
136In this case, the Charter violations were avoidable.
137At the front end, had the police taken a moment to think about things, they may have realised that in addition to having an erroneous belief about the fail to remain charge, the Defendant was detainable for the purposes of determining the extent of his prior alcohol consumption. This may have mitigated the unlawful arrest.
138Given that the Defendant ultimately admitted to having consumed a significant amount of alcohol, within a few minutes, the impact of the s. 9 violation is reduced. There can be no doubt that once the police had information about the Defendant’s alcohol consumption, though he was not displaying any outward signs of alcohol impairment, the fact of the unusual collision and the extreme damage would have provided objectively reasonable grounds to believe that the Defendant was impaired by alcohol in his ability to drive a motor vehicle.
[139] Respecting the s. 10(b) violation, it bears observing that: The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated. See R. v. Rover, 2018 ONCA 745 at para. 45.
[140] In R. v. Suberu, 2009 SCC 33, [2009] SCJ no. 33 at para. 41, our highest court spoke of what is meant by the words, “without delay,” found within s.10(b) of the Charter: A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.
141The Defendant wanted legal advice from his own lawyer. He willingly gave up on that given the time of day, and he diligently chose to speak with a “public lawyer” (Duty Counsel). It is not insignificant that he could not possibly receive complete and accurate legal advice respecting his legal jeopardy, when the police failed to advise Duty Counsel of both charges he was facing. Fortuitously, the breath sampling had not begun before the Defendant had an opportunity to receive complete legal advice.
142Situating the impact of the Charter violations also involves a consideration of the effect of the breaches. At both the start and toward the end of his time while detained, the Defendant was delayed in the ultimate receipt of his legal rights and the provision of breath samples for analysis. That said, the breath sampling 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. For a list of authorities, see R. v. Jennings, 2018 ONCA 260 at paras. 27-32.
143These violations although not deliberate, do not establish good faith. See R. v. Singh, [2020] O.J. No. 985 (S.C.J.) at para. 24. I find in the Defendant’s circumstances, and in light of any real explanation for the failures in this case, this factor also strongly favours exclusion of the breath testing results.
Society’s Interest in the Adjudication of the Case on its Merits
[144] In R. v. McGuffie, 2016 ONCA 365, 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. McGuffie, supra, at paras. 62-63.
145The breath testing results are reliable and necessary to prove one of the two counts before the court. This militates in favour of admitting the breath analysis.
146The prosecutor submits that the breaches in this case are minor and technical. I disagree. I have assessed these violations as moderately serious and entirely preventable. The court must denounce police conduct which is incompatible with the protection and enjoyment of fundamental constitutional rights. To be informed of the reason for arrest is foundational. This information must be accurate. Moreover, one’s right to counsel without delay is fundamental and at the core of protecting the autonomy, liberty, and security of our residents from the authority of the state.
147There is no evidence that the failures of Cst. Khan are long-standing, widespread, or systemic within the Peel Regional Police. Nonetheless, I tend to the view that mere disapprobation of his conduct is incommensurate with the misbehaviour occasioned. I find that the long-term effect of admitting the breath readings in the circumstances of this case would bring the administration of justice into disrepute.
148Before leaving this section, I feel compelled to add that Cst. Halfyard’s efforts to assist the Defendant with the exercise of his rights to counsel were exemplary. Were the Defendant not held for an additional 17 minutes before he received adequate legal advice respecting both charges he was facing, I would have had no hesitation in admitting the breath sampling results in this case.
Analysis of the Trial Evidence
149In the absence of the breath readings, the charge of excess BAC, cannot be proven.
150The evidence in support of the impaired operation count is almost non-existent. There was a terrible car crash through a metal construction fence with enough force to knock down a light post, demolish a new car, and send it approximately 100’ off the roadway and facing in the opposite direction. In the absence of the Defendant’s utterances to police, there is no admissible evidence as to the cause of the collision.
151While I am satisfied that the Defendant had been drinking alcohol on the night in question, Ms. Diaz could hardly say how much. The smell of alcohol standing alone, in the absence of any other outward indicia of alcohol intoxication, simply does not lead inexorably to the conclusion that the Defendant’s ability to drive was impaired by alcohol. To the contrary, the testimony of every witness was that the effects of alcohol upon the Defendant, if any, were slight.
Conclusion
152The breath testing results were excluded due to several Charter violations.
153I have a reasonable doubt that Piotr Pierzchala committed the offence of impaired operation of his conveyance on 11 October 2020. I suspect that his alcohol consumption did not help his driving, but there is an insufficiency of evidence to establish beyond a reasonable doubt that it caused him to be even slightly impaired in his ability to drive that very early morning.
154Accordingly, both remaining charges are dismissed.
Released: 05 November 2022 Justice G. Paul Renwick