ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
ANURAG VAIDYA
Before: Justice G.P. Renwick
Heard on: 06 and 07 May 2024
Reasons for Judgment Released on: 08 May 2024
Counsel: N. Jaswal, counsel for the prosecution B. Daley, counsel for the Defendant Anurag Vaidya
REASONS FOR JUDGMENT FOLLOWING A TRIAL
INTRODUCTION
1The Defendant faces two counts of drinking and driving (impaired driving and having an excess blood alcohol concentration while driving), contrary to ss. 320.14(1)(a) and 320.14(1)(b) of the Criminal Code. The prosecution proceeded summarily.
2The Defendant brought a generic written Charter Application to challenge the admissibility of the evidential breath readings taken from the Defendant by police. It was initially baldly alleged that the police violated the Defendant’s ss. 8, 9, and 10(b) Charter rights. During oral submissions, the s. 9 argument was not addressed by either party.
3The parties agreed to hear the evidence on the trial alongside the evidence of the Charter Application during a “blended” voir dire. At the conclusion of the prosecution’s case, the Defendant did not call any additional evidence on the Application, nor did he lead any evidence on the trial.
4On the trial proper, the Defendant asserted that his identity as the driver of the motor vehicle was not proven beyond a reasonable doubt. Moreover, although the Defendant became seated in the driver’s seat upon arrival of the police, there is no evidence with which he could be found guilty of having care or control of the motor vehicle while impaired by alcohol.
GOVERNING LEGAL PRINCIPLES
5The Defendant applies for Charter relief. Generally, the Applicant has the onus to establish his allegations on a balance of probabilities. However, the parties agree that the breath sample testing was a warrantless search purportedly authorized by statute. In this case, the prosecutor must establish on a balance of probabilities that the police complied with the statutory regime authorizing the breath sampling. If the Defendant’s Charter rights have been violated, the exclusion of evidence is not automatic. In order to have the breath test results excluded from his trial, the Defendant must establish that it is more likely the case than not that the admission of this evidence in the circumstances of one or more Charter violations would tend to bring the administration of justice into disrepute.
6The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a 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. The prosecution’s burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of an offence charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the Defendant was the operator of the motor vehicle at the relevant times, he will be acquitted of these charges.
7A 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. R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242. If after considering all of the admissible evidence I am sure that the Defendant committed an 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.
Evidential Considerations
8Below, I will outline some of the evidence and provide an assessment of the evidence, with references to specific portions of the testimony. Although I will not refer to all of what a witness said, I listened to each witness carefully, I have taken detailed notes, I have reviewed the exhibits, I have had access to the digital audio recording of the proceedings, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and the witness’ ability to recall and communicate.
9This case involves 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 a witness’ testimony.
10A valuable means of assessing the credibility of any witness is to examine 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.
11I 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 recording. I have thoroughly reviewed the evidence in this case, including the video evidence, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, despite any of the exchanges with counsel during submissions, I came to no conclusions about any of the evidence received until all of the closing submissions were made and my review of the evidence and the law was complete.
THE IMPAIRED OPERATION COUNT
The Identification and Related Presumption of Operation Issue
12The Defendant argued that his identity as the driver of the motor vehicle that had left the roadway and crashed into a mound of dirt is not proven beyond a reasonable doubt. The prosecution responded that the direct evidence of the civilian witness, Kenneth Varughese, established beyond a reasonable doubt that the Defendant was the driver of the motor vehicle. Alternatively, the prosecution argued that when the Defendant was seen by police to sit in the driver’s seat and close the driver’s door, he is presumed to have been operating the vehicle and he failed to rebut the presumption created by s. 320.35 of the Code.
13Kenneth Varughese testified for the prosecution. He testified in chief for approximately 14 minutes and he was cross-examined for about eight minutes.
14Mr. Varughese appeared earnest while testifying, however, this consideration merits little weight.
15He testified that he and the Defendant were work colleagues in North York. The Defendant normally drove Mr. Varughese home from work. On this occasion, they decided to go to Cooper’s Pub in Mississauga on the way home. He testified that they each drank three to four drinks of whiskey and one to two shots of “Jager.” I took this to mean “Jagermeister,” a well-known alcoholic beverage. Mr. Varughese had a vague memory of which road they were on and exactly what had happened. He believed that a car overtook them and then the Defendant “lost control” and they “derailed” and ended up on the “barren land.”
16Mr. Varughese also had a “vague” memory respecting what had happened next. He remembered a tow-truck driver speaking to them and then the police arrived. He was unsure what eventually happened to the Defendant’s car.
17In cross-examination, Mr. Varughese was first asked about whether he had discussed his evidence with anyone. He admitted that he “panicked” about having to testify and he had called the Defendant. He told the court that the Defendant told Mr. Varughese that he was not supposed to talk to him and suggested that Mr. Varughese call his lawyer. Mr. Varughese testified, “He was very kind about it. He chose not to speak to me.” The witness said that he did not call or speak to anyone about his evidence.
18Mr. Varughese was then asked if he would describe himself that night as “drunk.” He said that he was not, however, he did not know if he “wasn’t in my state of mind.” He was asked if he would have driven that night. Mr. Varughese testified that he would not have driven for two reasons: he did not have a licence and he did not have insurance. As an example, he testified that although his brother had left Mr. Varughese with a car while he was in India, Mr. Varughese did not drive it for these reasons.
19Mr. Varughese was unsure if he had been asked by police who was driving. He testified that it was not possible that he had driven there. He knew that he was not driving and he was “200% sure” of this.
20I find that Mr. Varughese was apparently truthful while testifying. His uncontradicted testimony was not diminished or seriously undermined in any way during his cross-examination.
21Mr. Varughese’s testimony is not contradicted by the interactions captured on Sergeant Sablic’s body-worn camera (“BWC”) video (exhibit #1). The parties agreed that only the first 34 minutes and 44 seconds of the sergeant’s BWC video was admissible. At the point where this video ends (for my purposes), the timestamp on the video is 21:01:29 (9:01 p.m.).
22I have reproduced the dialogue and my observations of the first few minutes of exhibit #1, below. The prior consistent statements of Mr. Varughese cannot support his testimony and will not be used as such. The audio of the recording begins at 0:00:30 (or 30 seconds after the video begins) and the following occurs:
0:00:30 Sergeant Sablic: [Officer walks toward two males in a field off the roadway. The Defendant walks toward the vehicle] You guys okay? Kenneth Varughese: I’m okay. S: You the driver? KV: I was not driving. S: ‘Kay, what happened? KV: ..the country. S: Huh? KV: I don’t have a license. I’m new to the country. I was not driving. S: Okay, can you put your hands down? Ahh, I’m not doing anything to ya. ‘Kay, just relax. Were you in the car? KV: [Pointing] Ya, I was in the passenger seat. S: Well, what happened? KV: We, we had a couple of drinks. And he said he was fine to drive. S: Oh, God. Okay. KV: And then he’s my colleague, we work in the same company. S: Okay. [Officer walks over to driver’s side of the vehicle] Hey boss, get out of the car. Anurag Vaidya: Ya. S: Come on out. AV: [Defendant exits the driver’s door] Sorry. Hi sir. S: How you doing? Why dontcha come on out? What happened? AV: Sorry. Ah yes. [Defendant closes driver’s door] Sorry about that. S: ‘Kay, get your hands out of your pockets. You been drinkin’? AV: Not much. S: How much? AV: Not much. S: Okay. Put your hands here for me [Officer taps car] [Officer speaks to KV] No, just stay there. Actually, you stay in front of the car here where I can see you. KV: Put my hands on top? S: Just leave it there. Don’t, relax. You’re not in custody, okay? I told you that. Leave your hands there, where I can see them. [Officer speaks to the Defendant] You, just keep your hands there for me, okay? You have anything on you, you shouldn’t have? AV: No. You can check me. S: [Officer empties items from Defendant’s pockets and places them on the roof of the car. He continues to pat-down the Defendant] Okay, put your hands behind your back, you’re under arrest. Behind your back. Hey, don’t be stupid. Relax. [Officer handcuffs the Defendant] AV: Sir. Sir? S: What? AV: I don’t want to be under arrest. S: You don’t want to, but you are. What you want and what’s happening is two different things. Okay? Right now, just be quiet, okay. [Officer goes on the police radio to advise that he has “one in custody for impaired.” Officer requests a check on the vehicle’s license plate] S: [Officer speaks to the Defendant] Relax, relax. KV: But he didn’t do anything. S: [Officer speaks to KV] Just relax. [Officer gives license plate number and requests another unit to his location] AV: Sir, sir, sir? S: Ya? AV: I’m, I’m going to be cooperating with you. S: Okay, listen. I’m telling you right now, okay? I don’t want you to say anything that’s gonna get you in further trouble. Okay? So, just relax. AV: I’m silent. I’m silent. I’m silent. S: Okay good. 0:03:32
23The video evidence (exhibit #1) does not contradict Mr. Varughese’s testimony that he was not the driver. I have reviewed exhibit #1 several times. The Defendant never claimed that he was not the driver. The Defendant never asserted that Mr. Varughese was the driver. The closest he came to exculpating himself is that he mentioned that he “will” sit in the passenger seat at 0:04:57 of exhibit #1. The officer clarified that the Defendant was simply stating that if he was released he would sit in the passenger seat and refrain from driving. In my view this did not establish or raise a reasonable doubt that the Defendant had been in the passenger seat at any time before the officer’s arrival.
24In fact, at 0:05:16 of the BWC video of Constable O’Reilly (exhibit #2), the Defendant said, “Sir. Can I please plead guilty and I’m sorry.” This statement is only being used to consider whether there is evidence contradicting the testimony of Mr. Varughese.
25I have considered the reliability of Mr. Varughese’s testimony. As a newcomer, if he had been driving after consuming alcohol, he would have had a significant motive to implicate the Defendant in order to avoid detection, apprehension, possible prosecution and any immigration consequences that may ensue.
26While testifying, Mr. Varughese was candid that he had panicked and called the Defendant before testifying. This admission bolstered his reliability.
27Although during cross-examination Mr. Varughese was asked several times if he had been driving the vehicle when it left the road, he was clear that he had not been driving. During his brief cross-examination, it was never suggested that he had driven and the two men had lied to or misled Sgt. Sablic in order to avoid any criminal liability or immigration consequences for Mr. Varughese.
28After a consideration of all of the evidence, there is not even a suspicion on my part that the Defendant was not the driver when the car had been cut off.
29As a result, I am satisfied beyond a reasonable doubt that Mr. Varughese had no motive to lie to the police, because he had done nothing wrong. It is also clear on the evidence that Mr. Varughese, like the Defendant, did not believe that the Defendant had done anything wrong. From their perspective, they were blameless; they had been cut-off and that is why their vehicle had left the road and mounted a dirt hill.
30On the basis of all of the evidence, I am satisfied that Mr. Varughese was a reliable and credible witness. I accept his evidence as truthful and accurate as a result.
31Given the resolution of the identity issue (it is established beyond a reasonable doubt that the Defendant operated the vehicle before it left the highway), I do not find it necessary to deal with the prosecutor’s alternative argument that the Defendant was presumed to have operated the vehicle because he went and sat in the driver’s seat upon the sergeant’s arrival.
32The Defendant conceded that if I find beyond a reasonable doubt that he was the driver of the vehicle, his appearance and behaviour on the BWC videos would ground a conviction for impaired operation due to alcohol consumption.
THE EXCESS BLOOD ALCOHOL COUNT
Section 8 of the Charter
33The Defendant alleged that the police did not comply with s. 320.28(1) of the Code which requires the police to make a breath demand “as soon as practicable” after forming reasonable grounds to believe that a drink-driving offence has taken place.
34Sergeant Sablic’s BWC video established that during their approximately thirty minutes of interaction, the officer never gave the Defendant a breath demand. I find that the sergeant became distracted by the Defendant’s behaviour and his many interruptions and questions and the officer simply overlooked this statutory requirement.
35The prosecutor responded that this was cured by Cst. O’Reilly’s demand commencing at 0:17:08 of his BWC video. I note that the Defendant was placed in Cst. O’Reilly’s police cruiser at 0:02:00 (two minutes after the start of the video). I find that Cst. O’Reilly’s breath demand, made more than fifteen minutes after he took custody of the Defendant, does not meet the statutory requirement of s. 320.28(1).
36By failing to make a demand to take his breath samples as soon as practicable after formation of the grounds to arrest the Defendant, the police did not comply with the statutory regime which authorized the warrantless seizure of evidence.
37This breach of the Charter is established.
Section 10(b) of the Charter
38The Defendant alleged that the implementation of his right to counsel was violated because although Sgt. Sablic promised that he would put the Defendant in touch with Duty Counsel before the Defendant was taken to the police station, this never occurred. Moreover, this promise was never communicated to the transporting officer, Cst. O’Reilly. Lastly, the Defendant did not get to speak to Duty Counsel until 10:15 p.m., which was almost two hours after his arrest at 20:29:17 according to Sgt. Sablic’s BWC video.
39To be clear, Cst. O’Reilly testified that he called Duty Counsel at 9:35 p.m., which was within six minutes of their arrival at 11 Division. Constable O’Reilly’s BWC video showed 0:02:40 at 21:00:00 (9:00 p.m.). He left the scene at 0:19:58 or approximately 21:17:18 (9:17 p.m.). He arrived inside the police sally-port at 11 Division at 0:32:02 or approximately 21:29:22 (9:29 p.m.). Duty Counsel did not call back. At 10:08 p.m., Cst. O’Reilly made a second call and left a second voicemail message. This call was returned at 10:11 p.m., and the Defendant spoke with Duty Counsel from 10:15 until 10:26 p.m.
40It must be remembered that facilitating the Defendant’s s. 10(b) Charter right was just one of the many duties required of Sgt. Sablic while he awaited another officer to attend his location. The sergeant was required to deal with his arrestee (the Defendant), Mr. Varughese, the tow-operator, the paramedic who briefly attended, and his police dispatcher. He had to ensure the safety of the Defendant and anyone else present, including himself. The sergeant testified that he was operating a supervisor’s cruiser that did not have a plexiglass partition between the rear seat on the driver’s side and the front compartment where a firearm was being stored. The plexiglass partition for the rear passenger side seat is clearly visible in the sergeant’s BWC video at 0:21:18 or 20:48:03. At 20:38:40 (8:38 p.m.), the sergeant asked the Defendant to leave the rear seat area in order to move the Defendant to the other side of the cruiser.
41It is obvious from the police BWC evidence that the Defendant decided that he was in control of the situation and he would not permit the sergeant to direct him to the other side of the cruiser. The Defendant became belligerent, challenging, and rude. Though the evidence is not direct in this regard, I infer that the failure of the Defendant to move to the other side of the cruiser, as requested, actually prevented Sgt. Sablic the opportunity to make good on his offer to have the Defendant contact Duty Counsel at the scene. Even though he was handcuffed, it would have been completely inappropriate to leave the Defendant unattended in the police cruiser (to offer privacy during a call to Duty Counsel) proximate to a firearm. I find that it was appropriate to attempt to move the Defendant to the other side of the police vehicle where the Defendant could safely be left alone.
42It became obvious that the Defendant’s conduct did little to reassure the officer that it was safe and prudent to attempt to move him without another officer present. In fact, when the sergeant asked the Defendant to provide his name (20:52:11) the Defendant questioned the request and failed to give his name. I find that it was not safe for Sgt. Sablic to deal with a clearly intoxicated, unknown individual with an unknown friend nearby at the side of a busy highway, all alone, at night. It is an understatement that this officer faced a situation of unknown risk in those circumstances.
43In R. v. Rover, 2018 ONCA 745, [2018] O.J. No. 4646 (C.A.), 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] 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.]
44In cross-examination, the Defendant did not challenge the veracity of the sergeant’s claims that the Defendant’s position in his vehicle and the Defendant’s behaviour prevented him from providing the Defendant the opportunity to exercise his right to counsel.
45As indicated, the sergeant was alone, outnumbered, at a visual deficit (it was dark), in a situation of unknown risk, and in a remote location. The Defendant had been drinking alcohol, he was significantly intoxicated, he was at times belligerent and physically imposing, and he consistently challenged the officer’s authority over him and his status as an arrestee.
46As well, it is inappropriate to assess the reasonableness of a claim of officer or public safety from the position of hindsight. At the time that the sergeant made a decision not to move the Defendant, the sergeant had only dealt with the Defendant for less than an hour. He would have no way of knowing why the Defendant insisted on coming out of the car to talk to him, whether there was an outstanding warrant for the still unidentified male, whether he had outstanding charges, if Mr. Varughese was armed, if there were weapons in the Defendant’s vehicle, or if there would be resistance if he decided to move the Defendant while the officer was alone. Although it is easy to say in hindsight that these considerations 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.
47Although 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. R. v. Cornell, 2010 SCC 31, [2010] S.C.J. No. 31 at paras. 23-24.
48Based on what was known to Sgt. Sablic, what remained unknown about the Defendant and Mr. Varughese (who was acting suspiciously throughout), and given the potential for harm both to the sergeant and to the public if the Defendant attempted to escape or resist at the roadside, I am satisfied that it was reasonable to hold-off providing the Defendant with access to Duty Counsel before Cst. O’Reilly arrived at 20:57:57, some 28 minutes following the sergeant’s formation of reasonable grounds to believe that the Defendant had been operating a motor vehicle while his ability was impaired due to alcohol consumption. At 20:59:45, Sgt. Sablic described Mr. Varughese’s actions as “very bizarre” when asked by Cst. O’Reilly.
49Once the Defendant had been safely moved into Cst. O’Reilly’s vehicle, I accept that it was no longer Sgt. Sablic’s decision whether the Defendant could safely exercise his right to counsel at the roadside.
50Constable O’Reilly lodged the Defendant in the back of his vehicle and received the sergeant’s grounds for arrest and re-entered his own cruiser at approximately four minutes into his BWC video. The constable had to receive and store the Defendant’s property and identify the Defendant (to begin his note-taking), before providing the rights to counsel and breath demand. The constable began the rights to counsel at 0:11:20. At 0:16:36, the Defendant said, “I wish to urinate” and he was told that could happen back at the police station. The officer made the breath demand at 0:17:08. They left the scene at approximately 0:19:55 or 9:17 p.m.
51Given the Defendant’s request to urinate, it would not have been practical to consider facilitating his right to counsel at the roadside. Constable O’Reilly’s decision to take the Defendant to the police station was reasonable in light of the location (on a busy highway), the Defendant’s behaviour with Sgt. Sablic (which was communicated to Cst. O’Reilly), the fact that the Defendant was legally required to accompany the police for the purpose of providing a breath sample, and the Defendant’s request to urinate.
52I agree with the Defendant that a significant amount of time had already elapsed from the time of his arrest at 8:29 p.m. until he was put in touch with Duty Counsel at 10:15 p.m.
53Although the Defendant was arrested promptly, it took from 8:29 p.m. until 8:57 p.m. for Cst. O’Reilly to arrive. It took him another twenty minutes to receive the Defendant’s property, to identify the Defendant, to provide the Defendant his rights to counsel, to caution the Defendant, to make a breath demand, to confirm the location of the qualified technician, and to leave the scene. There was very little delay in driving to 11 Division or commencing the process to put the Defendant in touch with Duty counsel. A message was left at 9:35 p.m. However, Duty Counsel did not respond initially and Cst. O’Reilly called them back at 10:08 p.m.
54I am satisfied that Cst. O’Reilly took a few extra minutes than a more senior officer may have taken to receive the Defendant’s information and property and to provide him his rights and breath demand before leaving the scene. The officer was hired in December 2021 and had only about 17 months experience before this investigation. As well, I noted that Cst. O’Reilly seemed to require extra time to think and answer questions while testifying. I took this as a sign that he is careful and deliberate in performing his duties. This is not unusual. He struck me as someone who understands the need to be precise as a witness. Some people think, speak, and move more instantaneously than others. I can hardly fault Cst. O’Reilly for the pace at which he works. I cannot fault the police service for adding to the diversity of its members by hiring people of different skill-sets and efficiencies. I would also note that the Defendant’s interjections and questions of Cst. O’Reilly also added to the time it took to get him from the scene to the police station.
55Beyond the delay on the part of the Ontario Legal Aid plan (in responding to the initial call for Duty Counsel) I find that there was no unaccounted or wasted time from the Defendant’s arrest until he was put in contact with Duty Counsel.
56Regardless, in all of the circumstances, I am satisfied that it is proven on a balance of probabilities that there was a breach of the Defendant’s s. 10(b) implementation rights during this investigation.
Section 24(2) Analysis
57The only evidence sought to be excluded from the Defendant’s trial were the results of the breath sampling analysis.
58Having dealt with the Defendant’s arguments concerning the nature of the s. 8 Charter violation and the police conduct leading up until his s. 10(b) rights were facilitated, 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.
59The parties agree that the three-prong test from R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 governs the exclusion of evidence under s. 24(2) of the Charter.
60Section 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.
61To 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.
62The 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.” R. v. McGuffie, 2016 ONCA 365 at para. 62.
Seriousness of the Charter-Infringing State Conduct
63This case involves a violation of two distinct Charter rights that bookend the police interactions with the Defendant before he provided his breath samples for analysis.
64The evidence established that the police failed to demand a breath sample from the Defendant in a timely way. Though I do not conclude that the violation of the right was deliberate, it is notable that a senior officer forgot this important step. Sergeant Sablic was candid about this unintentional failure, which mitigates the seriousness. The Defendant’s conduct and interruptions played a significant role in this unintended Charter violation.
65The delays in putting the Defendant in touch with Duty Counsel are also serious. The Defendant was always clear on both BWC videos that he wanted to exercise his right to access counsel before speaking to police.
66The violations in this case are of more than modest seriousness. The seriousness of the s. 10(b) violation is amplified because it followed a clear s. 8 violation on the part of the police to follow the statutory regime for the warrantless seizure of breath samples.
67In 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
68In this case, the Charter violations were avoidable.
69I find that the impact of the sergeant’s failure to provide the breath demand is mitigated by the following:
i. He told the Defendant what would happen; specifically that he would be taken to the police station for breath sampling, before being released; ii. The sergeant was constantly interrupted by the Defendant’s questions, which he patiently took and answered; iii. At 8:50 p.m., the Defendant asked about waiving his right to counsel, “for argument sake;” when this discussion ended, it was unclear whether the Defendant was content to exercise his rights to counsel or not; and iv. Constable O’Reilly provided the breath demand in a timely way after completing the rights to counsel and caution.
70The impact of the s. 10(b) violation was much more significant. 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. R. v. Rover, supra, at para. 45.
71The Defendant was arrested, handcuffed, and then held in two police vehicles for 48 minutes before being taken to the police station to facilitate his access to counsel. Notwithstanding that his desire to urinate may have taken precedence from a practical standpoint, the delay in the arrival of the second officer and the eventual transport to 11 Division were completely beyond the Defendant’s control. If anything, police delay created the urgency to urinate, which then eclipsed the need for timely provision of access to counsel. The impact upon the Defendant was significant but it was mitigated because at all times the police officers were professional and patient with the Defendant’s many concerns, questions, and attempts to apologize or seek leniency. Although the Defendant did not have timely legal advice to guide him, he was certainly kept aware of the nature of the investigation and the next steps at all times.
72Moreover, the police did not attempt to elicit any incriminating evidence during the delay before the Defendant was given the opportunity to speak with Duty Counsel.
73In 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:
41 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.
74I would add to these words that the delay in implementing the right to counsel is equally serious.
75Situating the impact of the Charter violations also involves a consideration of the effect of the breaches. In this case, the Defendant was required to submit to breath sampling 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. For a list of authorities, see R. v. Jennings, 2018 ONCA 260 at paras. 27-32.
76These violations although not deliberate, do not establish good faith. R. v. Singh, [2020] O.J. No. 985 (S.C.J.) at para. 24. I find in the Defendant’s circumstances, this factor pulls toward exclusion of the breath testing results, but not strongly.
Society’s Interest in the Adjudication of the Case on its Merits
77In McGuffie, the Ontario Court of Appeal court spoke about the tension between the three considerations:
78The 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.
79In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pulls 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.
80The 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 sample analysis.
81The prosecutor submits that the breaches in this case, if established, are minor. I disagree. I have assessed these violations as moderately serious. While it was not intended, they were foreseeable and preventable. The court must denounce police conduct which is incompatible with the protection and enjoyment of fundamental constitutional rights. To be informed of one’s obligation to provide a breath sample and to accompany the police for this purpose is fundamental and at the core of protecting the autonomy, liberty, and security of our residents from the authority of the state.
82There is no evidence that the failures in this case are long-standing, widespread, or systemic within the Peel Regional Police. Rather, I find that they are situational and related to the Defendant’s gross intoxication, his conduct with both officers, and his countless interruptions. I tend to the view that disapprobation of the police conduct is commensurate with the failures occasioned.
83I 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.
CONCLUSION
84I have concluded that the breath sample results are admissible in the trial. On consent, these results have been sealed from the court pending the determination of this judgment. These results can form evidence on the trial proper and will be considered by the court to determine if count #2 is proven beyond a reasonable doubt.
85I have also concluded that it is proven beyond a reasonable doubt that the Defendant drove a motor vehicle while his ability to do so was impaired by alcohol. I find Anurag Vaidya guilty of count #1 on the Information.
Released: 08 May 2024
Justice G. Paul Renwick