Court File and Parties
Ontario Court of Justice
Central West Region
At Orangeville
Between:
His Majesty the King
— and —
Amrit Singh Shergill
Heard Before: Mr. Justice Richard H.K. Schwarzl
Hearing Dates: April 11, 15 and September 5, 2025
Reasons Released: October 8, 2025
Counsel:
Ms. Sarah Khan — for the Crown
Mr. David Locke — for the Defendant
SCHWARZL, J.
REASONS FOR JUDGMENT
1.0: INTRODUCTION
1The defendant, Mr. Amrit Singh Shergill, was charged with impaired driving and driving with excess blood alcohol arising from a single car collision in the wee hours of January 14, 2024.
2At his trial, two issues are at play. First, whether the prosecution has proven beyond a reasonable doubt that the defendant's ability to operate a conveyance was impaired by the consumption of alcohol. Second, whether the police probably violated the defendant's right to counsel guaranteed by section 10(b) of the Canadian Charter of Rights and Freedoms (the Charter) and, if so, what remedy, if any, ought to flow.
2.0: FACTS NOT IN DISPUTE
3Shortly after 3:00 a.m. on January 14, 2024, the defendant was driving alone on Centreville Creek Road in Caledon. It was cold, wet, and windy with poor visibility. He lost control and his car struck a pole, causing not only damage to his car, but serious injuries to his right eye and head. He immediately called police to report the accident.
4Around 3:10 a.m. P.C. Martins arrived on scene and saw the defendant standing on the shoulder of the road near his car. The officer noticed the defendant's injuries and that he had alcohol on his breath. Although P.C. Martins recalled the defendant stumbling, a viewing of his car's dashcam did not reveal stumbling, only being slightly unsure while wearing summer shoes on a snowy incline. The officer observed that Mr. Shergill appeared a bit incoherent, but the officer could not say if that was because of the alcohol or the collision. P.C. Martin agreed that the defendant showed decent balance and his speech was clear.
5A few minutes later, Constables Patterson and Franks attended the scene. P.C. Patterson recalled the defendant's speech was slurred. P.C. Franks only went as far as to say that the defendant sounded dazed, which he said was not surprising given the defendant's injuries. P.C. Franks conceded that the defendant's behaviour at the scene, other than the odour of alcohol, might be the result of a serious collision.
6P.C. Patterson testified that she "suspected the defendant was impaired by alcohol" [1] and made a screening demand. A test was administered, and the defendant failed. P.C. Patterson then arrested the defendant for impaired driving, stating "I had reason to believe he was impaired and over the legal limit". [2]
7Upon his arrest, the defendant was given his right to counsel. He told the police he wanted to call someone to facilitate access to a lawyer.
8While the police tended to the defendant, his brother showed up on scene. He actively obstructed the investigation by encouraging the defendant to refrain from cooperating with the police. The defendant's brother also tried to get the police to "let things go" without any further consequences to the defendant. Officers eventually got the defendant's brother to leave the scene shortly after he was allowed to speak with the defendant inside the ambulance that had arrived.
9The defendant was transported to the nearest hospital. On arrival, P.C. Patterson asked him if he had a lawyer that he wanted to call. He said he wanted to speak with his brother to access a lawyer. Given his brother's intrusive behaviour at the collision scene, the officer asked the defendant if there was someone else the police could call for him. The defendant replied that he wanted to speak to his sister.
10While resting on a gurney, the defendant was allowed to speak to his sister. When he was finished the defendant told P.C. Patterson that his sister would call back with information for a lawyer to call. P.C. Patterson said that the sister had twenty minutes to find a lawyer. No reason was given for this curfew.
11The defendant's sister called back and wanted to speak to the defendant. P.C. Patterson refused the request and said the sister could give her the lawyer's information to pass on to the defendant. At this point, the defendant's brother got on the phone wanting to speak with the defendant. P.C. Patterson turned the phone over to P.C. Franks because the brother was upset with her. P.C. Franks cautioned the brother to only provide the defendant with the lawyer's name and contact information.
12P.C. Franks obliged the brother's request to speak with the defendant after he said, "I have spoken with a lawyer. Let me speak to Amrit." However, P.C. Franks did not permit the conversation to be private because the brother was not a lawyer [3] and was not giving the police any information regarding counsel. There was a brief conversation between the brothers on speaker phone but not about accessing a lawyer. The brother once again told the defendant to not cooperate with the police. P.C. Franks took the call off the speaker and told the defendant's brother privately to just give the police the lawyer's information, failing which they would call duty counsel to which the brother replied, "Yes, contact duty counsel for him."
13At this point, the phone was disconnected and P.C. Patterson called duty counsel. She did so because "there was no movement on getting the defendant to speak with a lawyer because he didn't have his own lawyer" and because the brother would not identify the lawyer he claimed to have spoken to.
14Neither P.C. Patterson nor P.C. Franks told the defendant that the police could not get any information about a lawyer from his brother. They did not tell him that duty counsel had been called at the direction of his brother. Neither officer asked the defendant if there was another person that he wanted to call to try to access a lawyer.
15Prior to providing suitable samples of his breath directly into an approved instrument that had been brought to the hospital by the qualified technician, Sgt. Edwards, the defendant was able to speak with duty counsel with as much privacy that could be afforded in an Emergency Room setting.
16When he was finished speaking with duty counsel, P.C. Patterson asked the defendant if he was satisfied with the legal advice he received. He told P.C. Patterson and P.C. Franks, "I am satisfied at this point" and did not complain about the lawyer nor did he ask to speak with another lawyer or anyone else to access a lawyer. Neither officer asked what the defendant meant by "at this point."
17P.C. Franks testified that in hindsight it would have been prudent to ask the defendant directly about securing a lawyer from another family member or if he wanted to speak with duty counsel. P.C. Franks also agreed that the decision to call duty counsel was made by the police without any input from the defendant. P.C. Franks acknowledged that normally the police would speak directly to a detainee about accessing a lawyer but, he said, this situation was anything but normal given the defendant's brother's interference. P.C. Franks agreed that he was flummoxed and frustrated by the brother's interference which probably caused him to forget to speak directly to the defendant about getting legal advice.
18A short time later, the defendant provided suitable samples of his breath directly into the approved instrument. The truncated test results were both 150 milligrams of alcohol per 100 millilitres of blood. Sgt. Edwards felt the defendant was impaired due to the test results, the defendant's bloodshot eyes, and his defensive behaviour with the officer. Sgt. Edwards agreed that the defendant's speech was not slurred and that his balance was sure.
2.0: WAS THE DEFENDANT IMPAIRED TO DRIVE?
2.1: Positions of the Parties
19The Crown submits that given the unexplained collision, the odour of alcohol, and his dazed behaviour following the crash, they have met their burden of proof regarding the impairment of the defendant's ability to drive safely.
20The defence submits that at the highest, the constellation of facts in this case may give rise to a suspicion that could justify a screening test but does not reach the threshold of reasonable grounds let alone proof beyond a reasonable doubt.
2.2: Analysis
21For reasons I will explain, I find that the prosecution has failed to meet the requisite standard of proof the defendant was impaired.
22The circumstances suggest that other than the odour of alcohol, the facts are as likely to be consistent with an accident as it is with impairment of the driver. The collision could have reasonably been caused by poor the wet road, strong wind, and poor visibility. The behaviour of the defendant at the scene was as equally consistent with significant head injuries as it was with the influence of alcohol. I am not persuaded that the defendant's speech was slurred, that he was dazed and confused, or that his balance was poor because of consuming alcohol. His red eyes are equally consistent with a serious injury to his eye and head. His defensiveness with Sgt. Edwards is not definitively due to alcohol; to the contrary given the bad advice given by his brother to him prior to the breath tests, I am not surprised that the defendant was less than cooperative with the breath technician. Alcohol on the breath is, without more, insufficient to find impairment.
23I agree with the defence that on examining the evidence as a whole, there is insufficient proof of impairment to justify a finding of guilt on the impaired driving charge. I therefore find Mr. Shergill not guilty of this charge.
3.0: DID THE POLICE LIKELY BREACH THE DEFENDANT'S RIGHT TO COUNSEL?
3.1: The Facts
24I have already made relevant findings of fact earlier in my reasons regarding the question of rights to counsel.
25On a voir dire, the defendant testified that he knew his sister called and that his brother was on the phone, too. He said he did not hear what P.C. Franks and his brother talked about. No one told him he could not try someone else to get a lawyer. He said that if he had been told, he had two other relatives to call, one of whom knows Mr. Shergill's trial lawyer. The defendant's evidence is consistent with the evidence of the police about his vacuum of knowledge before the police called duty counsel.
26The defendant also testified that he knew he was speaking to a lawyer when talking to duty counsel. He said that when asked about speaking to duty counsel, he was satisfied at that point. He explained that since he had no way of accessing a lawyer of his own, he acquiesced to the situation. Mr. Shergill testified, "I felt like a third party to my own case. The police froze me out and didn't tell me anything. I felt defeated by the way the police were not including me in the pursuit of my own lawyer." He added that he said was satisfied at that point because he believed that duty counsel was all he was going to get. He said he wanted to speak to a lawyer trusted by his family and not to a complete stranger.
27The defendant agreed that he was told he could call any lawyer he wished but said that if he was told his brother was of no use, he would have told the police about his uncle and his cousin.
3.2: Was the Defendant's Right to Counsel Probably Breached?
28To determine whether the defendant's right to counsel was likely violated by the police, two questions must be examined. An examination of the conduct of both the police and the defendant is required. On the one hand, the police must act reasonably in facilitating access to counsel; and on the other hand, the detainee must be reasonably diligent in pursuing his desire to speak with a lawyer.
29The prosecution argued that (a) the police acted reasonably and (b) the defendant did not. The defence submitted that (a) the police did not act reasonably whereas (b) the defendant was reasonably diligent.
30I agree with the defendant that PC Patterson was unreasonable to give the defendant's sister a twenty minute deadline within which to find a lawyer. She had received an unexpected call in the middle of the night and confronted with news that her brother was under arrest and in the hospital. PC Patterson offered no rhyme nor reason for what appears to be an arbitrary, if not capricious, limit on the defendant's ability to locate a lawyer for him to consult.
31Of significance to this analysis is that the defendant always made it clear to the police that he wanted to speak to a lawyer recommended by his family. At no time did he say he wanted anyone else. In this aspect he was diligent in expressing his mode of exercising his rights.
32PC Franks was a reliable and important witness. He readily acknowledged that no officer informed the defendant that his brother did not provide any lawyer's information. Nor, he said, did the police give the defendant a chance to then call someone else to get a lawyer. Finally, PC Franks was candid that the police skipped involving the defendant and went straight to calling duty counsel after being irritated by the defendant's brother.
33Police officers are, of course, as human as the rest of us. They frequently have to deal with situations and people that get under their skin. Due to their training, duties, and civic responsibilities the police are required to maintain their emotions and be focussed on their tasks including respecting the rights of detainees.
34Here, the defendant was not a real problem, but his brother was. I agree with the defence that Mr. Shergill was not given any choice in who he spoke to because he had been "cut out of the loop" by his brother and by the police. The police got so annoyed and vexed by the defendant's brother abominable behaviour that they outright forgot to facilitate the defendant's desire to speak a lawyer of his choosing.
35While it may be tempting to find that in these peculiar circumstances the police acted reasonably in light of the brother's interference, to do so would be to condone the use of emotion over reason by the police. As such, I find that the police were not reasonable in facilitating the defendant's access to a lawyer.
36I also find that the defendant was reasonably diligent on these facts. I accept that when he said he was satisfied "at this point" with the legal advice he was acquiescing to a situation over which he had been excluded from any input. Furthermore, the phrase "at this point" was sufficiently ambiguous that the police had a responsibility to ensure that this was a clear waiver of the defendant's rights. By not doing so, they were not acting reasonably.
3.3: Having Found a Breach of the Defendant's Rights, Should There Be a Remedy?
37The defendant seeks to exclude the breath test results as a remedy of the breach.
38In R. v. Grant, 2009 SCC 32, the Supreme Court laid down the three-part inquiry into the exclusion of evidence as a remedy for a Charter breach. Those parts are (1) the seriousness of the breach, (2) the impact of the breach on the protected interested of the detainee, and (3) society's interest in the adjudication of the case on its merits. All three parts must be weighed and balanced and the burden is on the applicant to persuade the court that the scales are tipped in his favour.
39With respect to the assessment of the seriousness of the breach, the concern is not about punishing the police but rather to preserve the public's confidence in the rule of law and its processes. Seriousness is an elastic term that is placed on a spectrum. As the Supreme Court stated in R. v. Tim, 2022 SCC 12, at para. 82:
At the more serious end of the culpability scale are wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or a major departure from Charter standards. Courts should dissociate themselves from such conduct because it risks bringing the administration of justice into disrepute. At the less serious end of the culpability scale are Charter breaches that are inadvertent, technical, or minor, or which reflect an understandable mistake. Such circumstances minimally undermine public confidence in the rule of law, and thus dissociation is much less of a concern.
40In this case, I would put the breach on the more serious end of the spectrum that favours exclusion. Although not deliberate, the breach was unacceptably negligent for two reasons. First, there was no reason at all for PC Patterson to put an arbitrary cap on the time within which the defendant could exercise his rights. Second, the failure of the police to act reasonably was the result of them unacceptably losing focus on the rights of the defendant by utterly bypassing him once they hung up on his brother, thereby disregarding their duties to him. I find that there was a significant departure from the standard of conduct expected of police officer: R. v. Stipo, [2025] O.J. No.3530 (S.C.J.) at para 60.
41As for the impact on a defendant's rights, the court must once again place the impact on a spectrum from impacts that are trivial, transient, or technical to those that seriously compromise the interests underlying the rights infringed: Grant, paras. 76-78; Tim, para 90. The greater the impact, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.
42Here, the fact that the defendant actually received legal advice prior to supplying his samples of breath attenuates the impact on his Charter protected rights. However, detainees are entitled to speak with a lawyer in whom they have confidence. Access to legal advice is a fundamental right and goes to the heart of a detainee to get a "lifeline" of their choosing during an obviously stressful and important situation such as this. Here, the impact on the defendant's Charter protected interests was on the more serious end of the spectrum, tending to favour exclusion.
43Finally, there is no doubt that cases where there is evidence involving bodily samples are generally reliable and favour admission: Grant at para. 110. Here, the breath test results are reliable and vital to a determination of the case on its merits. Without the admission of the test results, there is no case for the prosecution. This factor therefore favours admission of the evidence.
44Having considered and balanced the various factors set out in Grant, I find that the defendant has persuaded me that the breath test results in this case ought to be excluded from the evidence. There being no other evidence of the defendant's blood alcohol concentration at the time of the alleged offence, I must find him not guilty of driving with excess blood alcohol.
4.0: CONCLUSIONS
45For the reasons set out herein, my verdicts are as follows:
(a) Count 2 – Impaired Driving: Not Guilty.
(b) Count 1 – Driving with Excess Blood Alcohol: Not Guilty.
Richard H.K. Schwarzl,
Justice of the Ontario Court of Justice
Footnotes
1This is a conflation of two separate legal doctrines which, unfortunately, appears all too common amongst OPP officers in recent years.
2This conclusion was wrong in law. A fail of a screening test may give rise to reasonable grounds that the person was driving with excess blood alcohol but not that the driver was impaired without other indicia of intoxication. If PC Patterson believed the defendant was impaired before making a screening demand, there would be no need to make the demand or to administer the test.
3Mr. Shergill's brother was, in fact, a police officer at the time with a major municipal police service.