Ontario Court of Justice (Toronto Region)
Parties
R v Noella Ingabire
Counsel
Defence: Adam Little Crown: Ayushi Kiran
Reasons for Judgment (February 27, 2026)
Libman J.: -
1Ms. Ingabire stands charged that on February 14, 2022, she operated her motor vehicle while impaired and had a blood alcohol concentration equal to or in excess of 80 mgs of alcohol in 100 ml of blood.
2Although the proceedings have been protracted, the factual foundation underlying this prosecution is not complex, and neither are, ultimately, the Charter and non-Charter issues, I am called upon to determine.
3I want to commend counsel, at the outset, for the professionalism, diligence, care and obvious passion with which they have conducted themselves in presenting their respective positions in this case.
4Turning to the facts, Police Constable Michael Gobl received a radio call at 1:57am on February 14, 2022, to attend the area of Lakeshore and Parklawn for a personal injury accident, a motor vehicle collision, involving a white Porsche SUV that drove into a traffic pole and knocked it over. The driver of this motor vehicle is admitted to be the defendant, Ms. Ingabire.
5This radio call was proceeded by two civilian witnesses who reported the accident to the authorities. Larissa Dejan was in a nearby condo, on the 18th floor, when she was woken up by the noise of the accident, around 2:00am. She called 911 to report a motor vehicle had knocked over a pole on Lakeshore at Parklawn. The driver appeared to be a lone female and she walked over to the nearby Esso gas station.
6Bjorn Redquest was returning from a friend’s house at 2:00am, and he was stopped at a red light at this intersection when he heard 2 bangs. He called 911 right away and then went over to see if everyone was okay. A lady rolled down her window and said she was okay. She did not want him to call the police. He told her that he already had and returned to his car. He agreed in cross-examination that he did not smell any alcohol on the driver he spoke to.
7It was dark and cold, at the accident scene, when Constable Gobl arrived at 2:10am. The roads were dry. The intersection was illuminated by street lighting. Emergency services were already present when he arrived. He noticed the motor vehicle on the centre median, against the concrete traffic pole which was on the ground. The motor vehicle had heavy front-end damage. According to Officer Novakowski, who also attended the scene and made a motor vehicle accident report, there was major front-end damage to the defendant’s vehicle, the hood was crumbled and the air bags deployed; the damage to the downed pole and traffic signal he estimated to be a couple thousand dollars.
8Constable Gobl received information from Toronto Fire, who had been approached by an unknown male (presumably Mr. Redquest), that the black female driver went to a nearby Esso gas station. The officer went there immediately afterward, arriving by 2:14am. It was there he immediately encountered the defendant. Although she matched the description of the driver he had been given (black female with black boots, dark hair), he asked her if she was involved in the accident. She admitted that she was. This statement was made at 2:15am. Without cautioning her, he then proceeded to question her about the collision. He also asked her why she came to the Esso station. He agreed in cross-examination that he would not have allowed her to leave on her own by this point. He also acknowledged he should have cautioned her as she was under his detention. At one point he said to her, “What do you mean nothing happened, you hit a pole.”
9The officer was standing 1-2 feet from her. He smelled an odour of alcohol on her breath. She had pink and glassy eyes. His attention then turned, he testified, to potential criminality, being impaired driving, and he asked her if she had consumed any alcohol. She stated that she had a bottle of wine. What bottle of wine was it, he asked her at 2:16am. Subsequently, the officer instructed her to accompany him back to the accident scene. He did not explain to her why they were going there, or provide rights to counsel or a caution. He also asked her if she drank the whole bottle of wine by herself.
10Back at the accident scene they retrieved her driving documents from the motor vehicle. En route the officer observed slight unsteadiness on her feet; she bumped into his shoulder one time. PC Gobl was satisfied she was the driver.
11He then asked her to attend at the front of his cruiser to read her the approved screening device demand, as he had a reasonable suspicion that she had alcohol in her body. The demand was read to her at 2:19am. After demonstrating how to provide the breath sample, and instructing the defendant how to do so, a FAIL registered at 2:26am. She was then arrested at 2:27am for impaired driving.
12PC Gobl proceeded to return the defendant to his cruiser, as it was cold out, where he read the defendant a caution, breath demand and rights to counsel. Significantly, for the purposes of this case, the defendant stated that she did wish to speak to a lawyer, whose number was in her cell phone. The officer explained the call would occur back at the police station, where she would have privacy.
13They left the scene at 2:44am, and arrived at Traffic Services at 2:53am, the nearest police detachment where breath testing could be conducted. The booking process started at 2:54am; She was placed in cell #4 at 3:07am.
14It was at this time that Constable Gobl returned to the subject of the defendant having a lawyer. She replied that she did, as she was a realtor who worked with lawyers, and provided his name (Yemi Asalu) and his phone number (416 509 8809).
15The officer proceeded to call the lawyer. He conducted a google search on counsel before calling him. He determined that he was a real estate lawyer and did not practice criminal law. As a result, after speaking to Mr. Asalu, and confirming this, the officer subsequently called duty counsel, which he had mentioned to the defendant before hand, in the event he could not contact her lawyer of choice. He explained he did so as he knew she was about to provide a breath sample.
16PC Gobl made this decision without informing the defendant of his discussion with her lawyer of choice, nor the reasons why he called duty counsel. His call with counsel of choice was at 3:17am. He said he would call the lawyer back, although he never did so. Instead, he called duty counsel at 3:33am, and the defendant spoke to duty counsel shortly afterwards. She appeared satisfied with her conversation, in his opinion. At 3:48am, he then brought her to the breath room where Constable Taylor, the Qualified Technician took breath samples.
17The readings were: 4:43 am – 210 mgs; 5:10am – 220mgs.
18Ms. Ingabire was subsequently released from the station at 5:48am on an Appearance Notice.
19In cross-examination, PC Gobl acknowledged that he knew he was required by his training to read the roadside demand immediately upon forming a reasonable suspicion that alcohol was in the person’s body, and that he did not do so at 2:16am, waiting instead until 2:19am. This was one of his first impaired driving investigations.
20At the time that they were at the detachment together, PC Gobl stated that he did not notice any further issues with the defendant’s gait in any of the walking at the detachment, including her going to the bathroom, entering and exiting the breath room three times, and leaving the station.
21The officer further agreed that he never revealed to the defendant that he spoke to her lawyer, and the real reason he called duty counsel instead. This was a unilateral decision he made, which he maintained was done in good faith, as he felt it would be more beneficial for the defendant to speak to a criminal lawyer. He acknowledged there was nothing stopping him from sharing with the defendant his conversation with counsel of choice and enquiring further what she wished him to do.
22The breath testing officer, Constable Taylor, described the defendant as having a strong smell of alcohol from her mouth area. Her eyes were very bloodshot. She had a slight accent and was “quite talkative”. He wanted to know that she could speak to a duty counsel free lawyer. In cross-examination, he stated that if he knew she wished to speak to her own lawyer, rather than duty counsel, he would have permitted that.
23She appeared to understand his instructions as to how to provide a breath sample. He had her provide three samples in total, as on one occasion she blew into the self breath test mode by mistake on his part.
24No defence was called on behalf of Ms. Ingabire.
25The issues that I will now address, and that the parties have emphasized before me, are the lawfulness of the roadside screening device demand, accompanied by Charter challenges to the failure to provide a Charter warning and caution to the defendant as she was being investigated at the accident scene. Consideration of her Charter rights to counsel also includes the deliberate failure by the authorities to permit her to speak to her stated counsel of choice. These issues principally impact the charge of over 80 mgs.
26With respect to the impaired driving charge, proof of the elements of the offence and the Stellato test of impairment are of paramount consideration.
27The defence argues that the defendant was not advised of the reasons for her detention upon being detained, and in carrying out his investigation PC Gobl did not make his demand for a roadside test immediately upon formulating his reasonable suspicion of alcohol in the defendant’s body.
28Neither was she provided with her rights to counsel without delay. Indeed, she was never cautioned throughout her detention until the time of her arrest, well over 10 minutes later. Most egregiously, the police subverted her right to speak to counsel of choice, exacerbated by concealing from her the reasons for not permitting her to speak to counsel, and steering her towards duty counsel instead.
29These breaches merit exclusion of evidence and warrant a dismissal of the over 80 mgs charge, the defence submits.
30With respect to the impaired driving charge, the accused submits that the evidence is so frail that it does not meet the Stellato test of impairment.
31The Crown’s position is that the defendant meaningfully understood the extent of her jeopardy at the accident scene upon being investigated by Constable Gobl, and that there was no violation of her Charter rights to counsel. The officer promptly made a valid demand for the screening device, within minutes of meeting the defendant in the gas station. He was, in the Crown’s opinion, engaged only in a Highway Traffic Act investigation. Once the nature of the investigation changed, and an approved screening device demand was made, the accused was properly afforded her Charter rights, and not investigated further until she was at the police station where she had the benefit of counsel’s advice.
32With respect to counsel of choice, the Crown submits that the police officers acted in good faith in arranging for her to speak to duty counsel, and at no time did the defendant indicate any dissatisfaction with their decision to do so. The officers were merely concerned with the defendant speaking to a lawyer sufficiently versed in the area in which they were investigating.
33In any event, none of the Charter violations, even if established, would merit exclusion of the evidence. The breaches were of minimal impact, and no systemic concerns as to the police conduct arise in the instant case, justifying the exclusion of reliable evidence of excess alcohol consumption and its effects on the defendant.
34As for the impaired driving charge, the Crown submits the Stellato test of any degree of impairment has been more than adequately met.
35I commence my analysis on the issue of the lawfulness of the roadside demand with this observation. Whatever the ultimate resolution of the immediacy requirement in the timing of the formulation of the grounds, and provision of the roadside demand, this case does not turn on that issue. It is not the timing of the demand that is implicated here; it is what the officer was doing during the time until he made the demand that is in question.
36The questions posed by Officer Gobl, following his detection of alcohol on the breath of the accused, were investigatory, and accusatory, and most certainly, in substance, in the nature of investigating a criminal offence. The Rubicon was crossed. This was clearly, at this point, not a Highway Traffic Act collision investigation. The officer asked her why she left her car at the accident scene, how she got to the Esso station, what she had to drink, the type of wine that that it was, and challenged her version of events that “nothing happened” when she had in fact hit a pole. All this occurred while she was not only under detention, but that the officer knew she was the driver. He did not caution her throughout any of this time. The questions focussed on the involvement of alcohol in the accident, and not merely determining highway traffic driving conduct, such as careless driving. She was not free to leave Constable Gobl’s presence. He admitted as much. It was more than merely a psychological detention.
37It is manifest that the accused must be made aware of what they are actually being investigated for: a highway traffic regulatory infraction or true criminal offence: see R v Mueller, 2018 ONSC 2734, at para. 27. This did not happen here.
38Contrary to the Crown’s position, and her reliance on cases such as R v Franco, 2024 ONSC 2444, para 10, this is not an instance where the officer, before being in a position to make a valid demand, required additional time to subjectively assess whether grounds existed to make the demand. Neither can it be said that, based upon Constable Gobl’s questioning of the defendant, which made no reference to an impaired driving investigation, that there could be no doubt in the defendant’s mind as to why she was being investigated: see, by way of contrast, R v Gardner, 2018 ONCA 584, a case relied upon by the Crown, where the defendant was expressly advised by the police officer, upon being stopped, that the police were looking for an impaired driver.
39I am therefore satisfied that the delay in making the roadside screening demand, albeit of a few minutes in duration, was improperly motivated by evidence gathering purposes for a criminal investigation. However forthwith is to be defined, whatever issues remain following R v Breault, 2023 SCC 9, in terms of the implicit and explicit requirements of the section, (see R v McCorriston, 2024 SKCA 5, at para. 17), the actions of Constable Gobl are the antithesis of any definition or meaning of forthwith. Constable Gobl had a breath testing device nearby, in his possession, at the accident scene; he was in a position to require the breath sample to be provided soon after he encountered the defendant at the Esso gas station, and confirmed her identity. He had determined that she was the driver, she had consumed alcohol, and that there was alcohol in her system. There was nothing else that was immediately, let alone reasonably practicable, for him to do afterwards.
40Neither were there any “unusual circumstances” justifying any delay, such as ensuring the safety of the public or the accused or other persons, or the need to interact with other emergency services or first responders. The accused struck a pole which fell over. This was a serious accident, to be sure. But there was nothing further for Constable Gobl to do, and there were other police officers, and first responders, on the scene to assist him. This was no “fluid dynamic situation” in which “the degree of cooperation for surrender” was uncertain: see R v Gordon, 2018 ONSC 1297, para. 53. No “unusual circumstances” obtained that justified a period of delay to ensure the reliable operation of the roadside screening device, such as recent substance or tobacco consumption: R v Westgate, 2025 SKCA 53, paras. 56-57.
41A motor vehicle accident alone, with nothing more, is neither unique nor unusual. Indeed, the officer returned the defendant to the motor vehicle accident scene so she could retrieve her driving documents for him. This is not the actions of an officer sorting through the chaos of an unfolding motor vehicle accident investigation, or having to balance competing demands requiring his attention, such as tending to an injured party, identifying and interviewing witnesses, safeguarding the integrity of the accident scene, or protecting members of the public from harm.
42It has been observed that the failure of the police to comply with the forthwith requirement in the Criminal Code typically has the effect of triggering “a cascading series” of Charter breaches, such as an unlawful and arbitrary detention under section 9, and unreasonable search and seizure of the defendant’s breath sample pursuant to s.8: R v Kubacsek, 2021 ONSC 5081, at para. 61. The defendant’s Charter s.10(a) and (b) rights were also adversely impacted, as she was detained without ever being made aware of her right to counsel, never adequately told the reasons why she was being investigated, and could not meaningfully understand the nature of her jeopardy until the time she was arrested, well over 10 minutes after the officer first investigated her, and only then informed her of her rights to counsel.
43The Charter violations at the scene of the defendant’s legal rights are further exacerbated by the manner in which the police used subterfuge to deny the defendant her right to counsel of choice, upon arrival at the police station. If the counsel of the accused’s choice was not in a position to meet the standard of competency required of him by the Law Society Rules of Professional Conduct, this is a determination for counsel, and counsel alone. The defendant also has a role to play in this determination, that is, whether she is satisfied with the advice given to her.
44However, it is not for the police to determine if they approve the merits of the choice of the legal services provider the defendant decides to contact. Whether counsel is experienced, a new call to the bar, a certified specialist in criminal law generally or impaired driving in particular, are only some of the pitfalls, and nefarious considerations, that would arise if the police conduct in the case at bar was countenanced. It is not the business of the police which lawyer a defendant chooses to speak to. Their role is to facilitate this process, not grade or evaluate the quality of the decision, or pass upon its wisdom.
45Constable Gobl may well claim to have been acting in good faith, in his own mind. But objectively his actions belie this fact. He told the lawyer chosen by the defendant, and that he spoke to, that he would get back to him. He did not. Neither did he tell the accused at all of their conversation. He misled her into speaking to duty counsel; he denied her the opportunity of speaking to the lawyer of her choice, and if he could not, in fact, provide competent legal advice, of the opportunity to refer her to another counsel of her own choosing, that he would facilitate. The defendant, and the court, will never know if in his practice he worked with criminal lawyers, or referred clients to criminal lawyers. Neither did the officer alert any of the other officers investigating the defendant of the circumstances surrounding her speaking to duty counsel, such as the breath technician, who stated that he would have permitted her to speak to her counsel of choice, and was never informed otherwise by the defendant, who of course was never made aware of this fact, whereas Constable Gobl knew otherwise.
46In order to waive the right to speak to counsel of one’s own choosing, the defendant must be made aware of the true state of affairs as to their unavailability. Otherwise, there cannot be an informed waiver. The defendant’s information deficit, in other words, as to the availability of consulting her counsel of choice, was entirely of the police officer’s making.
47It was manifestly wrong for the police to have subverted the defendant’s right to speak to the lawyer of her choosing, especially when he was on the telephone willing and available to speak to her. The conduct of the Officer Gobl in this regard was, in the words of Justice Harris in R v Hamasaki, 2020 ONSC 2579, at para 2, “unsolicited, unnecessary, and highly inadvisable”. It constituted an impermissible interference with her right to consult counsel of her own choice. The defendant, in fact, made other officers aware of her desire to speak to her own counsel, such as the booking officer. No one appears to have given any consideration to her stated preference as to who she wished to talk to. Knowing that she requested speaking to her own lawyer, and had ready access to lawyers, not one officer inquired why she was being provided with duty counsel instead. The police appear to have provided lip service only to the importance of providing access to counsel of choice, ignoring the “reassurance and advice” that such counsel can provide: see R v Noel, 2019 ONCA 860, para. 26.
48It now falls to be determined what the remedy should be available, if any, in response to the Charter of Rights violations, as I have enumerated them.
49The R v Grant, 2009 SCC 32 approach to the exclusion of evidence merits a 3-pronged approach to exclusion of evidence, in accordance with s.24(2) of the Charter of Rights.
50I am satisfied that in the unique circumstances of this case, all three prongs, and the balancing that follows, requires exclusion of the breath test results. There were multiple and continuing breaches of the defendant’s rights, from the time of her initial detention in the Esso Gas station and roadside accident scene to the breath testing at the station. The seriousness of these cumulative breaches, the first prong in Grant, is very high. The seriousness of the breaches is compounded by the area of the law involved, administering roadside screening tests, and providing access to counsel of choice, being well understood by the police; it is right and only fair that the police are expected to know their duties in this established area of the law, as they exercise total and exclusive control over the accused at this important juncture of their investigation. An accused has no ability to access and speak to counsel of choice without meaningful participation by the police, something that was deliberately prevented by these police officers in their dealings with the defendant.
51The impact of these breaches on her Charter protected interests, the second prong, is also very high, as at no time did she ever meaningfully understand the extent of her jeopardy, particularly as she was being questioned and accused by Constable Gobl of not being truthful as to what happened at the accident scene, while she was under his detention. It is to be noted in this regard that the defendant answered every one of the officer’s accusatory questions, clearly not being aware of her right to silence and not to incriminate herself. She was never cautioned throughout her period of detention and questioning at the accident scene. As Justice Doherty observed in R v Rover, 2018 ONCA 745, para. 45, the right to counsel is a “lifeline” for a detainee. There is also a “psychological value” in the defendant being permitted to speak to a lawyer that they know and trust, the importance of which should not be underestimated: see R v Vassel, 2024 ONCA 771, at para. 30.
52The third prong, society’s interest in the adjudication of cases on their merits generally, and impaired driving cases in particular, generally favours admission of the evidence. However, in this case, where there has been from start to finish blatant disregard of the stated wishes of an accused in police custody to speak to their lawyer of choice, and then dishonesty with both the lawyer and the accused as to their availability, compels me to conclude that society is better served by disassociating the administration of justice from such conduct. Reliable evidence, obtained by trickery, is not effective crime control in the public interest, nor required in order to maintain confidence in the administration of justice. The accused was not permitted to gain access to her lawyer of choice not because he was inaccessible, but because the police impermissibly determined she ought not to speak with him, and proceeded to lie both to the lawyer of choice in their conversation as to speaking further to him, and by omitting to reveal this conversation, lied to the defendant as well. The accused’s interests protected by s.10(b) of the Charter were “completely compromised by the police conduct”: R v McGuffie, 2016 ONCA 365, para, 80. Accordingly, the long-term interests of the administration of justice require exclusion of such evidence, in order for the justice system to be sufficiently disassociated with such police misconduct.
53For these reasons, the evidence of the breath test readings, which are informed by significant Charter violations, arising from an improper roadside detention, including a breath demand that did not comport with the Criminal Code immediacy requirements, and extending to the defendant’s interaction with the police at the detachment, specifically leading up to the breath testing process, must be excluded from evidence. As a result, count 2, driving at or over 80 mgs must be dismissed.
54With respect to count 1, on the basis of the evidence that is available in support of impaired driving, I have a reasonable doubt as to whether there is even slight, or any degree, of impairment, applying the R v Stellato, 1994 94 (SCC), [1994] 2 SCR 478 test.
55This case involves an accused who has been involved in an unexplained accident and has an odour of alcohol on them and bloodshot eyes. There is slight unsteadiness in her gait on only one occasion, walking back to her car in company of a police officer, in darkness on a cold winter night on a well travelled roadway, but no unsteadiness at all noted in the several hours afterward that she was at the police station, or in any other manner, such as handling driving documents or her overall coordination. Her speech was not slurred. Evidence of poor driving, such as being involved in an accident, is no more indicative of impaired operation of a conveyance, than is evidence of good driving indicative of non-impaired operation of a conveyance.
56I have concluded that it would be unsafe to return a verdict of guilty of impairment on the basis of the cumulative effect of this evidence in support of proof of impairment. While I am satisfied that Ms. Ingabire consumed alcohol earlier in the evening, and her eyes were bloodshot, there is little more in terms of indicia of impairment: one instance of unsteadiness on her feet while being escorted back to the accident scene by Constable Gobl, and bumping into him. Constable Taylor, the breath test operator, did not opine on the accused’s state of sobriety. Neither did any other officer who observed her at the police station, or made observations of her there, detect any indicia of impairment, such as when she spoke to the booker, went to the washroom, came in and out of the breath testing room three times, and spoke to duty counsel.
57In all the circumstances, I am not satisfied that the proffered evidence of impairment meets the Stellato test of any degree of impairment. The accused is therefore found not guilty of impaired driving, count one, as well.
58In summary, I dismiss both charges, driving over 80 mgs and impaired driving, against Ms. Ingabire.
R. Libman, J.